A Dozen Things ‘The New Yorker’ Gets Wrong about Free Speech (And Why It Matters)

This article appeared in The Huffington Post.

The April issue of The New Yorker magazine included one of the more powerful rallying cries to defend global free speech that I’ve read this year. Written by George Packer, it discussed how, at that point, two secular or atheist bloggers had been killed in the streets of Bangladesh in just the previous two months. Horrifyingly, that number is now up to four, as two more bloggers have been targeted and murdered since.

It’s because The New Yorker has a history of publishing great articles like Packer’s that I was so disappointed to read Kelefa Sanneh’s article, “The Hell You Say,” in the Aug. 10 edition of the magazine. In the article, Sanneh likens free speech advocates (like me, I assume) to “gun nuts,” claims that campus speech codes have mostly been repealed (which is completely false), then bizarrely questions if people can believe in a diversity of belief. Those of us who are big fans of the concept of pluralism found the latter particularly mystifying.

Below I am copying in its entirety the 10-point response to Sanneh’s article that was written by members of my organization, the Foundation for Individual Rights in Education (FIRE). It’s long, but bear with it, as I suspect even careful students of freedom of speech will learn at least one new thing.

I’d also like to add my own two points about what was so wrong with Sanneh’s essay.
First, and most fundamental, Sanneh fails to do basic research. For example, it’s easy to see speech codes aren’t gone, just by the sheer number of recent lawsuits challenging them. Nor, as pointed out by Techdirt’s Mike Masnick, does Sanneh consult (or at least reference) “any actual free speech experts.” The article would have benefitted greatly by including anything at all from First Amendment experts like Nadine Strossen, Floyd Abrams, or Ronald Collins, or had Sanneh talked to well-known authors who are advocates of freedom of speech like Salman Rushdie, Jonathan Rauch, Wendy Kaminer, or Steven Pinker.

My second criticism concerns the piece’s tunnel vision. Sanneh leaves out the fact that, in a very real sense, the last year has been all about big stories of free speech and censorship, some of which were downright scary. Instead, Sanneh focuses on things like an April 2014 incident where a DJ lost his job because he played the song “Blurred Lines,” characterizing it as a “prominent recent” incident in the “campus speech wars.” I work in free speech all day long, but I hadn’t heard of the “Blurred Lines” case until this summer, more than a year after it occurred.

Listing this anecdote as a “prominent recent” incident shows a willingness to ignore the free speech elephant in the room: that the past year has been dominated by serious free speech controversies, perhaps the most serious in our lifetime, both in the U.S. and abroad. On campus, the Laura Kipnis case certainly deserves a mention, as does the University of Iowa case, the University of Oklahoma case, the Steven Salaita case, and the Hayden Barnes case, all of which are discussed in greater detail below. Indeed, Geoffrey Stone, law professor and former dean of the University of Chicago’s law school, was so concerned by the state of free speech on campus that he helped the University of Chicago draft a powerful statement defending freedom of expression on campus.

Off campus, it’s kind of hard to miss the free speech crisis represented in George Packer’s article when examples are so glaringly obvious. For instance, reporters (including The Washington Post‘s Wesley Lowery) being detained and then charged with crimes for reporting from the Ferguson, MO protests. Or two gunmen opening fire outside Pamela Geller’s infamous Muhammad cartoon contest in Texas. Or, in a strangely futuristic case, a rapper’s hologram being shut down by police at a private venue. Or, lest we forget, North Korea’s dictatorial government demanding that Sony squash the release of the satirical movie The Interview and then, from all appearances, cyber-attacking Sony when they didn’t comply. All of these examples are in addition to the almost daily horror stories from the Committee to Protect Journalists—and, of course, everything related to the Charlie Hebdo case, whether it was the attacks themselves, the decision by prominent authors to reject the magazine, or the arrest of a French comedian who made jokes about the attacks. The threats to free speech in the past year have been anything but subtle.

These two points illustrate just why an in-depth critique of the article is so important. First of all, in a time when people seem increasingly comfortable with book banning, blasphemy laws, hate speech laws, and amending the Constitution to limit the First Amendment, it’s important to take every opportunity we can to correct common misconceptions and explain some of the basics of the deep and profound philosophy behind free speech and the wisdom inherent in First Amendment law. Second, it’s important to take on the growing tide of critics, including authors and even journalists, who rely on freedom of speech but want to dismiss it as something unsophisticated or even dangerous. Whether from Eric Posner, Gary Trudeau, or Noah Feldman, there is a push to dismiss freedom of speech that seems to lionize the fact that other countries limit it. Every single one of these critics should sit down and read Flemming Rose’s book on international censorship, The Tyranny of Silence, before assuming that “enlightened censorship” is either justified or working out well for anyone.

So, without further critique from me, here are the 10 things that the intrepid staff of the Foundation for Individual Rights in Education believes The New Yorker got wrong about free speech:

1. “In the years since, restrictive campus speech codes have been widely repealed, which is why modern free-speech advocates are often left to battle less draconian forms of censorship, like cancelled commencement addresses.”

On this point, Sanneh is simply misinformed. He may be thinking about the fact that since the late 1980s, numerous restrictive speech codes have been struck down as unconstitutional by federal courts across the country. But this virtually unbroken string of courtroom defeats (more than a dozen universities have seen their speech codes ruled unconstitutional in court, while nearly three dozen either have seen their policies struck down in court or have had to settle lawsuits) has not changed the fact that a majority of the nation’s top institutions of higher education continue to maintain speech codes. FIRE conducts extensive research on speech codes every year and we publish an annual report condensing that research into a picture of the state of free speech on campuses nationwide. According to our most recent report, released in December 2014, more than 55 percent of the 437 colleges and universities analyzed maintain speech codes that seriously infringe upon the free speech rights of students.

Worse still, a new generation of restrictive speech codes is being installed nationwide in the wake of the federal government’s unprecedented intrusion into colleges’ handling of claims of sexual harassment and sexual assault. Faced with the threat of federal investigation and possibly even a loss of federal funds, many colleges are adopting a restrictive definition of sexual harassment put forth by the Department of Education’s Office for Civil Rights in a document billed as a “blueprint for colleges and universities throughout the country.” So while FIRE is indeed concerned with other forms of censorship (such as the very real censorship that occurs when universities disinvite commencement speakers to avoid discomfort and discontent among their students), we also continue to fight vigorously against campus speech codes.

—Samantha Harris

2. “But then the current free-speech debate is rather paradoxical, too—it can be hard to tell the speakers from the censors.”

A quick pass through FIRE’s vast database of campus censorship cases—or even a quick Internet search—proves this assertion flatly wrong: Censors are easy to identify. They’re not simply decrying speech they dislike, but are actively and openly punishing students for it. They’re also making headlines in the process. Two high-profile FIRE cases that made national news in the past month demonstrate the conspicuousness of the campus censor:

In 2007, Valdosta State University (VSU) student Hayden Barnes posted a collage on his personal Facebook page protesting the planned construction of campus parking garages. Angered by Barnes’ activism against his pet project, VSU’s then-president Ronald Zaccari claimed the picture constituted a threat on his life and had Barnes expelled without a hearing. With help from FIRE, Barnes sued and, after an 8-year legal battle, received a $900,000 settlement late last month. Details of the case opened FIRE President and CEO Greg Lukianoff’s 2014 book Unlearning Liberty: Campus Censorship and the End of American Debate, and news of last month’s settlement was covered in numerous publications, including the Atlanta Journal-Constitution and The Chronicle of Higher Education.

Another recent example comes from California State Polytechnic University, Pomona where, in February, campus police told student activist Nicolas Tomas he could hand out fliers only with a “free speech badge,” in a free speech zone, on a free speech day. The story was covered in-depth by the Los Angeles Times. Cal Poly Pomona was unquestionably the censor here, like many campuses whose illegal speech restrictions are publicly available and codified as campus policies. With FIRE’s help, Tomas filed suit against the school in March. As part of FIRE-led negotiations in response to the suit, Cal Poly Pomona agreed to revise its policies and pay Tomas $35,000 in damages and fees.

If Sanneh had looked for instances of censorship, he would have quickly found these two clear examples from the last month alone—and many more.

—Alex Morey

3. “For many modern free-speech advocates, the First Amendment is irrelevant: their main target is not repressive laws but shifting norms and values.”

Sanneh spills a significant amount of ink discussing arguments advanced by critics of American notions of freedom of expression—most prominently, Cass Sunstein, Jeremy Waldron, and Stanley Fish. Unfortunately, Sanneh does not pay equivalent attention to the arguments of the “modern free-speech advocates” he breezily characterizes as indifferent to the First Amendment. Beyond Kirsten Powers, Mary Katharine Ham, and Guy Benson, authors of the two recent books that serve as starting points for his observations, Sanneh declines to cite or engage those of us who have dedicated our professional lives to defending freedom of expression. This omission may explain why Sanneh dismisses the First Amendment’s vitality and importance.

If the First Amendment is irrelevant, nobody told us here at FIRE. It’s the cornerstone of our work. Without the First Amendment, we couldn’t successfully defend students like Merritt Burch and Anthony Vizzone of the University of Hawaii at Hilo, forbidden by administrators to protest National Security Agency spying outside of a minuscule, remote “free speech zone.” Likewise, without the First Amendment, we’d be hard-pressed to mount a winning legal argument on behalf of faculty members at the University of Wisconsin facing proposed legislation banning them from speaking to a nonprofit journalism organization. Indeed, the vast majority of FIRE’s victories would be rendered impossible.

FIRE is far from the only “modern free-speech advocate” whose daily work relies on the legal and moral power of the First Amendment. If Sanneh had looked, he would have quickly discovered the achievements of organizations like the American Civil Liberties Union of Pennsylvania, which utilized the First Amendment to score an important free speech victory for public grade school students who had been suspended for wearing message bracelets on Breast Cancer Awareness Day. Or the Electronic Frontier Foundation, which nearly 20 years ago successfully argued in federal court that computer code is speech protected by the First Amendment, and has used that landmark decision to bolster speech protections online ever since. Or the Student Press Law Center, fighting for the rights of student journalists like Sam Bearzi of the Washington Square News (New York University), who was arrested for taking pictures at a rally protesting the death of Freddie Gray. Or the Institute for Justice, protecting citizens from burdensome government restrictions on speech in a wide variety of contexts; or the Comic Book Legal Defense Fund, guarding artistic freedom for graphic novelists and comic book artists; or the Center for Constitutional Rights, working to vindicate the expressive rights of Professor Steven Salaita and many others.

Like FIRE, each of these groups depends on the First Amendment to guide and support their work. (How could the First Amendment Lawyers Association, as stalwart a collection of free speech advocates as one could imagine, function without the First Amendment?) Of course, that’s a very limited sampling. A complete list would stretch on far longer—especially one that also included individual advocates like Nadine Strossen, Eugene Volokh, Glenn Greenwald, Trevor Timm, Catherine Crump, and Mary Beth Tinker. And organizations that operate outside of the civil liberties context rely on the First Amendment, too. For example, just last week, the Animal Legal Defense Fund won a courtroom victory in convincing a federal judge to strike down Idaho’s so-called “ag-gag” law prohibiting the secret recording of farm operations on First Amendment grounds.

Simply put, it’s flatly inaccurate to conclude that the First Amendment is irrelevant to today’s free speech advocates—and, if he’d asked, today’s free speech advocates would have been the first to tell Sanneh as much.

—Will Creeley

4. “There is no advocacy group or high-profile politician avowedly devoted to the cause of cracking down on political speech, no national spokesperson for the war on camels.”

FIRE’s work defending freedom of expression and academic freedom on campus would be easier if this were true. Unfortunately, Sanneh is incorrect. Plenty of advocacy groups and politicians are committed to silencing political speech—specifically, political speech voiced by their opponents.

On a national stage, the Department of Education’s Office for Civil Rights (OCR) has pushed a deeply troubling definition of sexual harassment (“any unwelcome conduct of a sexual nature,” including “verbal conduct”) that effectively prohibits subjectively offensive discussion of gender or sexual politics. As FIRE has pointed out, broad definitions of harassment are inevitably used to silence dissenting or unpopular core political speech. And by labeling this broad definition as a “blueprint” for college policies nationwide, OCR has encouraged its widespread adoption. Fearful of federal investigation, colleges are complying, all but tripping over themselves to silence sex- or gender-related speech that might offend someone.

OCR’s encouragement of censorship of campus political speech has taken even more explicit forms. For example, as part of the agreement that ended a year-long federal investigation of the University of Montana’s policies and practices regarding sexual assault and harassment, OCR gained final authority to approve the university’s revised discrimination policies. Incredibly, the policy that finally earned OCR’s stamp of approval defined discrimination as “treat[ing an] individual differently” on the basis of any one of 17 different characteristics—including an individual’s “political ideas.” This impractically broad definition empowers administrators to investigate and punish a vast swath of core protected speech, such as criticizing your classmate’s political convictions or satirizing the views of your political opponents.

Sanneh also could have found ready examples in the contentious skirmishes surrounding the Israel-Palestine conflict on campus. Both sides of the dispute have taken steps to silence opponents. Take the advisory council convened by former University of California System President Mark Yudof to study the climate for Jewish students on campus, which recommended that the UC system “push its current harassment and nondiscrimination provisions further” and “seek opportunities to prohibit hate speech on campus”—brazenly advising Yudof to “accept the challenge” of the inevitable First Amendment defeat that would result. On the other side, academic organizations like the American Studies Association have passed resolutions boycotting Israeli institutions, denying scholars representing Israeli colleges and universities the possibility of formal discussion with ASA members. Making a bad situation for freedom of speech and academic freedom worse, state legislatures like the New York State Senate rushed in to the dispute, passing resolutions that would deny funding to groups supporting a boycott—thereby punishing individual faculty members for the political resolutions made by membership organizations. Advocacy groups, academic associations, politicians—when it comes to attempts to “crack down on political speech,” campus Israel-Palestine disputes have it all.

On a very superficial level, Sanneh is right. There’s no organization named Americans for Political Censorship, and politicians generally obscure or reframe their efforts to censor their opponents. But a cursory review of the campus censorship FIRE confronts semester after semester would have revealed that organizations, politicians, and even federal agencies routinely support the silencing of dissenting, unwanted, or simply inconvenient speech.

—Will Creeley

5. “So the authors [Kirsten Powers, Mary Katharine Ham, and Guy Benson] are forced to argue with evanescent Facebook groups or obscure junior faculty members or young people who had the misfortune to be quoted in the college newspaper.”

There is no shortage of state actors—public university administrators, for example—who are engaging in straightforwardly unconstitutional censorship. In recent years, even state legislatures have attempted to limit expression or investigate speakers for their protected speech. But in addition to speaking out against obviously powerful people, FIRE and other free speech advocates respond to people whom the public may not recognize as powerful because those individuals often wield significant influence over administrators, spurring censorship and punishment for protected speech that they couldn’t impose by themselves.

The University of Alaska Fairbanks’ student newspaper was under investigation for nearly a year after a professor filed multiple complaints arguing that a satirical article and a factual account of UAF’s Facebook “Confessions” page constituted sexual harassment, despite the professor apparently being alone in her concerns. Similarly, earlier this summer, Northwestern University took months to clear Professor Laura Kipnis after two students filed sexual harassment complaints based on an essay she published in The Chronicle of Higher Education. Recently FIRE wrote about the baffling case of Texas Christian University suspending a student for a social media post based on a complaint from someone who didn’t even attend the university. The student’s language fell far short of what would be unprotected by the First Amendment, and TCU promises its community free expression. Despite this, TCU partially rescinded the punishment only after national media attention and a letter from FIRE. In June, Crafton Hills College in California quickly moved to comply with a student’s request that a handful of critically acclaimed graphic novels included in an English course be tagged with trigger warnings. CHC, too, reconsidered after FIRE and other concerned free speech advocates wrote to the public institution.

In short, FIRE and other defenders of speech counter even speakers unknown to the general public because when we don’t, administrators take swift action to placate them. They don’t always do so for ideological reasons; often they acquiesce simply in order to avoid conflict. Fortunately, though, colleges and universities will often step back when unreasonable requests are challenged.

—Susan Kruth

6. “Speech nuts, like gun nuts, have amassed plenty of arguments, but they—we—are driven, too, by a shared sensibility that can seem irrational by European standards.”

If “speech nuts” like those of us at FIRE have “amassed plenty of arguments,” it would have been useful for Sanneh to have explained and engaged those arguments instead of waving them away with a dismissive, condescending label.

Sanneh’s casual equation of words and weaponry demonstrates a misunderstanding of the radical power of free speech. One of the transformative qualities of freedom of expression is that it trusts and empowers human beings to settle our differences—our most deeply felt differences, reaching the heart of who we believe ourselves to be—with reasoned debate instead of violence. Human history, largely a record of unceasing carnage, underscores just how hopeful, beautiful, and worthy of protection the concept of free speech therefore is. An idea, no matter how offensive or hurtful, is not a bullet. Sanneh’s breezy parallel between the First Amendment and the Second Amendment blurs this fundamental distinction.

Sanneh also seems to suggest that “European standards” of freedom of expression, which are far less robust and speech-protective than our own, may be more desirable than our “irrational” American notions. It’s increasingly fashionable in certain quarters to criticize the First Amendment and hail restrictive European speech laws, as FIRE President and CEO Greg Lukianoff has pointed out. But proponents of European-style speech codes fail to acknowledge that prohibiting hateful speech by law does not effectively combat hate itself. For example, as FIRE’s Robert Shibley wrote for USA Today:

In France, for instance, Holocaust denial has long been illegal, and just this year the country arrested more than 70 people for praising the Charlie Hebdo terrorist attack. France has put real teeth into laws that punish offensive speech.

Yet according to the Anti-Defamation League, 37% of the French harbor anti-Semitic opinions. In the U.S. — which, thanks to the First Amendment, has never banned Holocaust denial or hateful speech — that number is 9%, among the lowest in the world. While this comparison can’t capture all the differences between the two nations, it strongly suggests that punishing expression is no real cure for bigotry, and refusing to punish hateful speech does not lead inevitably to its spread.

Glenn Greenwald has reached similar conclusions, writing for Salon:

For as long as I’ll live, I’ll never understand how people want to vest in the Government the power to criminalize particular viewpoints it dislikes, will never understand the view that it’s better to try to suppress adverse beliefs than to air them, and will especially never understand people’s failure to realize that endorsing this power will, one day, very likely result in their own views being criminalized when their political enemies (rather than allies) are empowered. Who would ever want to empower officious technocrats to issue warnings along the lines of: be forewarned: if you express certain political views, you may be committing a crime; guide and restrict yourself accordingly? I obviously devote a substantial amount of my time and energy to critiquing the actions of the U.S. Government, but the robust free speech protection guaranteed by the First Amendment and largely protected by American courts continues to be one of the best features of American political culture.

Predictably, both in Europe and around the globe, restrictions on “hateful” or “blasphemous” speech are consistently used to punish political and religious dissidents and minorities—precisely the types of speakers that the First Amendment protects. As attorney and writer Ken White has noted, “anti-blasphemy laws are most often used as a tool of systematic abuse of religious minorities and other powerless and despised groups.” After closely surveying the impact of anti-blasphemy laws globally for two years, White concluded that commentators who suggest that “we Americans cling too tightly to our concept of free speech, and that we should be open to alternative views” ignore the actual impact of those alternatives.

For more reaction to Sanneh’s characterization of free speech advocates as “speech nuts,” check out Reason and The Wall Street Journal.

—Will Creeley

7. “But there are plenty of exceptions already, and taken together they form a rough portrait of what we value and what we don’t.”

This suggestion that new exceptions to First Amendment protection are acceptable because several already exist is not new.

For example, in his essay, Sanneh cites Stanley Fish, professor and author of There’s No Such Thing As Free Speech ... And It’s a Good Thing Too. In a panel on free speech at the National Constitution Center last year (in which FIRE President Greg Lukianoff also participated), Fish argued that he’d like to see speech subjected to a balancing test to determine whether more harm will come from the speech itself or from censorship of the speech. In other words, all controversial speech should be assessed on a case-by-case basis in order to determine if it should be prohibited. This is not only wholly impractical, but also a considerable departure from a core principle of the First Amendment—namely, the notion that ideas should be protected from the majoritarian impulse to silence dissent. But Fish believes that raw political power wins the day. During the panel, author and gay rights advocate Jonathan Rauch explained how free speech had been crucial to the advance of gay rights; in reply, Fish dismissed Rauch’s point, exclaiming that “[i]deas never won anything.”

For decades, though, the Supreme Court has continually refused to create new categories of unprotected speech, even narrowing the scope of the traditional categories—and with good reason. Taken together, the strict limits of what speech the government can punish demonstrate that in the United States, we value unfettered debate and open expression in the vast majority of circumstances. True threats, incitement, defamation, obscenity, and child pornography all have precise legal definitions, and the “fighting words” doctrine has been narrowed, arguably, to almost nothing. At the same time, the Supreme Court has made perfectly clear that offensiveness alone is insufficient justification for censoring or punishing the expression of an idea.

That is not to say that we don’t value the feelings of those who encounter hurtful speech, though. To the contrary, free speech advocates continually urge people to counter speech they don’t like with their own messages. Debate and persuasion, we think, are more effective tools to curtail any future harm than censorship—a superficial and temporary solution. As Jonathan Rauch wrote in The Washington Post last year, “[I]n a climate of free intellectual exchange hateful and bigoted ideas are refuted and discredited, not merely suppressed.”

These should be the guiding principles when it comes to applying First Amendment jurisprudence to new variations of old debates over the limits of free speech. If, instead, we continually expand unprotected categories to include speech that might cause a similar emotional impact but not the same concrete harms, freedom of speech will soon exist only superficially, and only for the politically powerful.

—Susan Kruth

8. “[New York University Professor Jeremy] Waldron would be more persuasive if he had more to say about newer forms of hate speech, which tend to be more personal—and possibly more damaging.”

It is not clear why “newer forms of hate speech” would be “more damaging” than the hate speech of yore. Are we to believe that people simply weren’t as hateful—with respect to their words, anyway—in eras when minorities were legally, socially, politically, and economically regarded as second-class citizens? Were people more demure in their homophobia pre-Lawrence v. Texas (2003) than they are post-Obergefell v. Hodges (2015)? Doubtful. Or, in the alternative, are we to craft our laws around the idea that human beings are more emotionally fragile than they used to be? The notion that words have a more crippling impact on people now than ever before is implausible.

Then there’s the idea that today’s hate speech is more damaging because it’s somehow more personal, and perhaps due to the immediacy and scale of the Internet. Sanneh focuses particularly on the impact of online harassment. For example, he notes that “an undergraduate who protests at her local bar can find herself vilified around the world, achieving the sort of Internet infamy that will eventually fade but never entirely dissipate.”
Sanneh seems to suggest that incidents like this are examples of “newer forms of hate speech.” But he is conflating several legal notions: “hate speech,” which is generally protected by the First Amendment, and harassment and defamation, which, properly defined, are not.

“Hate speech” has no legal definition and no universally agreed-upon boundaries. Usually, the phrase is used to describe racist, sexist, or discriminatory speech based on membership in a particular group. But Sanneh is describing a situation where the speech in question focused on an individual’s actions, and potentially on statements directed at that individual. This sort of personal attack may constitute defamation or harassment. And if the speech in question accords with the law’s precise definitions of defamation or harassment, it can be punished consistent with the First Amendment, whether it is communicated online or in the “real world.”

—Susan Kruth

9. “Free-speech advocates typically claim that the value of unfettered expression outweighs any harm it might cause, offering assurances that any such harm will be minimal. But what makes them so sure? ... Some kinds of free speech really can be harmful, and people who want to defend it anyway should be willing to say so.”

Free speech advocates do acknowledge that protected speech can hurt feelings. Sometimes, that’s the point. FIRE frequently quotes the Supreme Court’s decision in Terminiello v. Chicago (1949) for the idea that expression is often crafted to have a significant emotional impact:

Accordingly, a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.

In his 2012 New York Times review of Jeremy Waldron’s book The Harm in Hate Speech, which Sanneh discusses, Stanford Law School professor and former federal appellate judge Michael W. McConnell thoroughly acknowledges the damage that speech can do:

Contrary to Waldron’s apparent assumption, few people in the United States doubt that hate speech inflicts real harm on vulnerable minorities, any more than they doubt that lies about political candidates injure our democratic process; that vicious protests at the funerals of fallen soldiers inflict severe emotional injury on their families; that persistent use of extremely violent video games by adolescents aggravates antisocial behavior; that unlimited corporate and labor union contributions to candidates add to the appearance of political corruption; that public profanity degrades our culture; that raucous anti-abortion protests disturb patients seeking to end their pregnancies; or that the publication of state secrets undermines national security.

Nevertheless, as McConnell explains, “This speech is all constitutionally protected — not because we doubt the speech inflicts harm, but because we fear the censorship more.”

It is impossible and ultimately counterproductive to regulate speech based on subjective emotional harm. To do so is to constrain discourse to allow only speech that would be acceptable to the most sensitive person who might hear—and thus to effectively prohibit core political speech, such as rigorous debates on matters of public concern where everyone feels strongly and emotions run high. Subjective limits based on emotional harm would render art, literature, science, religion, comedy, satire, and much else out of bounds, as well. Moreover, punishing speakers according to a constantly changing and unknowable standard is incompatible with core principles of due process, which require clear notice of the boundaries of prohibited conduct.

In his review, McConnell catalogues examples in Sweden, Belgium, France, and Poland where anti-hate speech laws have been used by the politically powerful to silence minority or dissenting viewpoints. He writes:

[B]ans on speech touching on issues of public concern — as most hate speech does — can be abused for political ends. Waldron asks his readers to imagine the platonic ideal of hate speech laws, but in actual operation these laws have a terrible track record of being used by politically powerful factions to suppress speech that criticizes them. It is hard to find a case anywhere in the world where speech in support of dominant ideologies is punished for the protection of the weak.

The Supreme Court has routinely upheld protections for so-called “hate speech.” In Snyder v. Phelps (2011), the Court declared the speech used during the Westboro Baptist Church’s military funeral protests “disgraceful and repugnant,” but it ruled that the speech was nonetheless protected. Writing the Court’s opinion, Chief Justice Roberts reasoned:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

Although free speech advocates like FIRE disapprove of restrictions on speech based only on the emotional harm it might cause, the narrowly defined categories of speech that are unprotected by the First Amendment encompass those relatively rare situations in which speech is harmful in a concrete or physical way. Prohibiting true threats, for example—serious communications of an intent to commit unlawful violence—does not endanger discussions on controversial topics the way that prohibiting hurtful language does.

Free speech advocates have already answered Sanneh’s question about how we can be so sure hate speech doesn’t cause some kind of harm. In fact, we know it sometimes does. But with the First Amendment, we can fight back—answering speech that harms with speech of our own.

—Susan Kruth and Alex Morey

10. “‘Liberals are supposed to believe in diversity, which should include diversity of thought and belief,’ [Kirsten Powers] writes. This is a rather paradoxical formulation. (Is it possible to believe in diversity of belief?)”

At FIRE, believing in diversity of belief is so fundamental to our mission (and the diversity of beliefs among our staff reflects this) that it’s difficult for me to figure out exactly what is so paradoxical about this idea. Is Sanneh suggesting that it is only natural for each individual to hope that everyone else agrees with him? To be sure, most of us lament a law or two (or ten) that are based on ideas we disagree with. But one would have to be delusional to think not only that all of his ideas are absolutely right but that he has nothing to gain from hearing different ideas. No nuance could be added to his position; no additional considerations have escaped his notice. Any reasonable person would concede that he could learn something from someone who disagrees with him on some topic and would reject the idea that the world is better without diversity of thought.

Alternatively, is Sanneh suggesting that people are incapable of truly understanding and appreciating different viewpoints? I would argue to the contrary—that thoughtful people appreciate opposing arguments on innumerable topics that involve nuanced questions about the very complicated world we live in. Plenty of people are undecided, for example, on issues like abortion, marijuana legalization, gun regulation, and campaign finance reform precisely because they see the validity of opposing arguments. Such people should especially value diversity of belief, as it’s likely that hearing others will help them solidify their own stance.

With all this in mind, I’m struggling to see what Sanneh finds difficult or implausible about free speech advocates believing in diversity of belief and wanting to foster it. Forming an opinion about a topic does not require one to dismiss all other ideas as objectively incorrect and useless.

—Susan Kruth