Why civility should not trump free expression: Part 10 of answers to bad arguments against free speech from Nadine Strossen and Greg Lukianoff

In May 2021, I published a list of “Answers to 12 Bad Anti-Free Speech Arguments” with our friends over at Areo. The great Nadine Strossen — former president of the ACLU from 1991 to 2008, and one of the foremost experts on freedom of speech alive today — saw the series and offered to provide her own answers to some important misconceptions about freedom of speech. My answers, when applicable, appear below hers.

Earlier in the series:

• Part 1: Free speech does not equal violence
• Part 2: Free speech is for everyone
• Part 3: Hate speech laws backfire
• Part 4: Free speech is bigger than the First Amendment
• Part 5: You can shout ‘fire’ in a burning theater
• Part 6: Is free speech outdated?
• Part 7: Does free speech assume words are harmless?
• Part 8: Is free speech just a conservative talking point?
• Part 9: Free speech fosters cultural diversity
• Part 10: Why 'civility' should not trump free expression
• Part 11: ‘New’ justifications for censorship are never really new
• Part 12: Free speech isn’t free with a carveout for blasphemy
• Part 13: Does free speech lead inevitably to truth?
• Part 14: Shouting down speakers is mob censorship

Assertion: Restrictions on free speech are OK if they are made in the name of civility.

Nadine: This claim was effectively addressed in the justly celebrated “Chicago Statement,” which the University of Chicago adopted in 2014, and which has since been adopted by many diverse public and private higher education institutions all over the U.S. The pertinent language states:

Although the university greatly values civility, and although all members of the university community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.

As this statement acknowledges, it is certainly appropriate for public institutions, such as universities, to encourage members of their communities to express themselves in a civil and respectful manner. This approach, though, incorporates two important limits, which should be underscored. 

First, what the institution encourages is a particular manner of expressing ideas, which involves no limit at all on which ideas are expressed. All things being equal, if one can convey one’s viewpoint through words, tone, gestures, and facial expressions that signal civility and respect, one should be encouraged to do so, and should do so voluntarily.

If an individual chooses to convey a message in an uncivil manner, that choice must be respected and protected

However, if the particular viewpoint cannot be conveyed through words and other means that audience members are likely to regard as civil and respectful, the viewpoint should nonetheless be conveyed. 

Second, while university and other public officials may urge members of their communities to voluntarily express their ideas in a civil manner, they may not enforce any civility requirement. Accordingly, if an individual deliberately chooses to convey a message in an uncivil — even disrespectful — manner, that individual choice must be respected and protected. 

Indeed, the incivility and disrespect may very well constitute integral elements of the substantive message. Consider, for example, messages that protest certain official conduct. If a member of the community objects to police misconduct, she may well convey her disrespect for the conduct, and for the officers who engaged in it, through intentionally disrespectful language. Indeed, in a 1969 decision, the Supreme Court upheld the free speech rights of a young Black man who was participating in a rally against police brutality and had used insulting, threatening rhetoric, explaining that “[t]he language used in the political arena . . . is often vituperative [and] abusive.” Similarly, in a 1982 decision, the Court protected the cursing, threatening language of a NAACP leader who was mobilizing a boycott of white merchants who engaged in racially discriminatory practices, stating that “strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases.”

The Supreme Court has repeatedly recognized that, especially in debates about public affairs, participants are likely to communicate in ways that are far from civil, and that such communications constitute the lifeblood of democracy, as well as being essential to individual liberty. In today’s contentious campus climate, many student activists have conveyed their objections to ideas of invited speakers, and to actions of university officials, as well as other students, in language that is harsh and insulting both in content and in the manner of delivery. We have all seen widely circulated videotapes of students boisterously interrupting remarks by speakers and university officials by shouting out insults, including vulgar and profane epithets. Could these students effectively convey their strongly held views through language that is constrained to be civil either in its content or its manner of delivery?

For persuasive reasons, the Supreme Court has consistently struck down restrictions on uncivil expression that it has characterized with a wide variety of negative adjectives, including: “abusive,” “contemptuous,” “controversial,” “disagreeable,” “distasteful,” “hurtful,” “inappropriate,” “indecent,” “insulting,” “misguided,” “offensive,” “opprobrious,” “outrageous,” “patently offensive,” “provocative,” “scurrilous,” “shocking,” “threatening,” “unsettling,” “upsetting,” and “vulgar.” The Court has concluded that, as a matter of principle, speakers may not be required to express themselves through more civil language. Moreover, the Court has concluded that, as a factual matter, speakers cannot adequately express themselves through such altered language.

Incivility and disrespect may very well constitute integral elements of the substantive message.

One important example is a landmark 1971 decision that arose during the U.S. engagement in the Vietnam War, Cohen v. California. The Court overturned the conviction of a young man, Paul Cohen, under a California statute that outlawed “disturb[ing] the peace . . . of any . . .person . . . by . . . offensive conduct” because, in a courthouse, he had worn a jacket bearing the message “Fuck the Draft.” As the Court recognized, “The statute seeks to preserve an appropriately decorous atmosphere in the courthouse.” At the time, the “F-word” was considered extremely offensive and even shocking, to the extent that the Chief Justice indicated to Cohen’s lawyer that he should not utter the word during his Supreme Court argument, despite its central importance to the case. Nonetheless, the Court held that this statute violated Paul Cohen’s free speech right to convey his opposition to the Vietnam-era military draft through such strong language, despite the fact that it was deeply upsetting to many onlookers at the time. The Court based its ruling on several compelling rationales, all of which would doom any effort to enforce any requirement that communications must be conducted with civility.

First, the Cohen Court recognized the inherent vagueness of concepts such as “civility,” “offense,” and “decorum,” meaning that if the government were permitted to police individual expression pursuant to such vague “standards,” the officials would wield essentially unfettered discretion. As the Court explained: “it is . . . often true that one [person]’s vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” 

Second, the Cohen Court recognized that freedom of speech shields an individual’s right to convey emotions, as well as ideas, and that therefore we each have the right to choose the content and manner of our communications accordingly. For example, if a speaker seeks to express outrage, she is likely to do so with outraged – and perhaps outrageous – language. As the Court elaborated:

[M]uch linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.

Finally, the Court in effect paraphrased Marshall McLuhan’s famous aphorism that “the medium is the message.” It explained: “[W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”

[LISTEN: Robert Corn-Revere reads Cohen v. California on FIRE’s “Free Speech Out Loud” podcast.]

Given the inherent vagueness of the concept of “civility,” and the resulting discretion it vests in enforcing authorities, the enforcement will be at best arbitrary and unpredictable, and at worst discriminatory, targeting disfavored speakers or ideas. Consistent with historic patterns, authorities are likely to enforce any such discretionary standard in accordance with their own subjective values, or those of powerful interest groups. It was no coincidence that Paul Cohen’s allegedly “offensive” language, which purportedly “disturbed the peace” of onlookers, conveyed a controversial, critical view about the government’s Vietnam War policies. In today’s context, any civility code would no doubt be enforced against people who are protesting current government policies and actions, ranging from police practices to pandemic measures. Similarly, campus officials would likely enforce such codes against critics of their policies. On all sides of controversial issues, individuals with strong views are unlikely to confine their communications to those that other people, including officials, consider civil – nor should they be required to do so.

Greg: Civility is one of those words that officials, politicians, and university presidents tend to throw around as if it trumps freedom of speech by its very nature. But I find this assertion quite strange, and even sometimes disingenuous. No values are likely conceived of in LESS universal ways than “politeness” and “civility,” and even within a single society, norms related to these values differ depending on one’s economic class, gender, region, and upbringing.

Appeals to “civility” in attempts to censor really do cut all ways.

International travel can quickly disabuse people of the idea that civility norms are universal. As my Russian refugee father liked to say, “if you come to another country and expect them to play by YOUR norms, you are acting like hick.” The norms of politeness embraced by my Russian father and my British mother could not have been more different. And this brings us back once again to the brilliant John Stuart Mill, who noted in “On Liberty” that civility tends to be defined by those in power or in the ruling class. Therefore they’re quick to judge dissenting opinions, even if expressed politely, as inherently uncivil, but tend to see emotional, strident, or otherwise uncivil speech on their own side as righteous rage.

With regard to what is commonly meant by intemperate discussion, namely invective, sarcasm, personality, and the like, the denunciation of these weapons would deserve more sympathy if it were ever proposed to interdict them equally to both sides; but it is only desired to restrain the employment of them against the prevailing opinion: against the unprevailing they may not only be used without general disapproval, but will be likely to obtain for him who uses them the praise of honest zeal and righteous indignation.

The idea that there can be a single norm of civility in a country as profoundly diverse as the United States is bizarre. I believe that people graduating from elite universities can come to believe this only because most universities today have a fairly politically homogeneous professoriate, an even-more-homogenous administration, and, at schools like Harvard, a surprisingly homogenous student body. We have also become more class-segregated as a society over the past several decades, and elite universities tend to have a disproportionate number of students from the upper one percent of the economic distribution. This can lead to the classic phenomenon of upper-class people thinking that people of lower socioeconomic status are “uncivil” without seeming to realize that people of lower socioeconomic status quite intentionally disregard upper-class norms around civility and politeness to signal their decency, honesty, integrity, and authenticity. We recognize this reality in folk idioms like “keeping it real.”

Appeals to “civility” in attempts to censor really do cut all ways. In November 2021, Duke University’s student government denied recognition to the group, Students Supporting Israel, on the basis that the group had been “uncivil” in responding to one of its critics. On the other side of the issue, the Board of Trustees at the University of Illinois at Urbana-Champaign rescinded a job offer to Steven Salaita in 2014 over “uncivil” tweets criticizing Israel. (In one of the more unfortunate cases FIRE has seen, Salaita did not find another job in academia, and, as recently as 2019, was driving a school bus to make ends meet.)

Politeness is indeed a virtue, but is not the greatest of all virtues.

Now that I have problematized the idea of civility and shown how it can be, at best, hard to define, and, at worst, outright abused, I do think basic ideas of civility — such as hearing each other out, granting the benefit of the doubt, or otherwise engaging in argument and discussion with open mindedness, curiosity, and good faith — reflect very important social values. However, as I’ve said for decades now, “Politeness is indeed a virtue, but is not the greatest of all virtues, and ranks far below authenticity, sincerity, and honesty.”