Who favors free speech?
For most of American history, the answer was almost no one. The generation that framed and ratified the Constitution thought the First Amendment forbade prior restraints (that is, prohibitions on publishing without official approval) but little else. The Sedition Act of 1798 was testament to how minimal protection for free speech was in the early Republic.
During the First Red Scare of the early twentieth century, Justices Louis Brandeis and Oliver Wendell Holmes, Jr. penned stirring defenses of the right to challenge government orthodoxy, but they did so in dissents. The Supreme Court and other institutions of American government and civil society were largely timid in the face of McCarthyism.
With the civil rights movement, progressives embraced free speech, but even then, it was not until 1965, in Lamont v. Postmaster General, that the U.S. Supreme Court first struck down a federal statute as inconsistent with the First Amendment. For many years thereafter, free speech issues often divided the Court. As late as 1990, four Justices thought it consistent with the First Amendment for Congress to forbid burning a U.S. flag as a form of expression.
There continue to be divisive free speech issues, but they tend to involve special circumstances. Conservatives invoke free speech to challenge campaign finance regulation, the application of civil rights statutes to expressive businesses, and requirements for the payment of union fees. Liberals do not tend to regard those matters as involving free speech—or if they do, they think that competing values outweigh free speech concerns. Meanwhile, liberals have been more likely than conservatives to uphold free speech rights for minors, government employees, and the institutional press.
Despite those and some other continuing divisions, since the early 1990s, there has been a bipartisan consensus on the core principle that government may not proscribe speech on the ground that it is offensive, hurtful, false, or otherwise harmful. That is not the only possible view. Nearly every other constitutional democracy in the world proscribes hate speech, which the U.S. Supreme Court has held is not a proscribable category. But in the U.S. courts, for better or for worse, speech rarely loses out to other values.
From Political Correctness to Wokeness
Yet nearly as soon as a bipartisan consensus favoring free speech began to form among legal elites, it was breaking down on the ground. In the 1990s, conservatives complained that liberals were stifling conservative views with “political correctness,” especially on college campuses. More recently, they have lodged some of the same complaints against “wokeness” and “cancel culture,” adding charges about social media to their campus-based grievances.
These charges are difficult to assess. For one thing, the mechanisms of supposed censorship rarely involve government coercion. People who choose not to support a celebrity who is “canceled” because of offensive social media postings do not thereby subject the celebrity to any legal sanction. To be sure, social opprobrium can be a powerful force and is subject to misuse and abuse. But there is at best a fine line between mob retribution and what Brandeis recommended as the best answer to harmful or offensive speech: helpful counter-speech.
Meanwhile, right-wing complaints about liberal censorship frequently ring hollow, given that some of the very same people who complain about a woke orthodoxy are actively purging school and public libraries of books they dislike and micro-managing curricula to purge topics they consider mistaken or painful for white students to encounter (such as the role of race in American history and contemporary culture). And that’s to say nothing of the once-and-would-be-future Hypocrite in Chief: Donald Trump cast himself as a victim of censorship when, during his New York State hush money trial, he was ordered not to threaten jurors, witnesses, or court personnel and their relatives; yet, he has endangered journalists trying to cover his campaign by pointing to them and describing them as the “enemy of the people” and threatened to imprison those who dare to criticize him by seeking to have them prosecuted for imagined crimes.
To champion free speech only for one’s friends and allies is not to champion free speech at all.
The Dizzying Reversal
The Hamas October 7 atrocities against Israeli civilians and subsequent campus protests against Israel’s extremely forceful and deadly response somewhat scrambled the previous pattern. Conservatives who had until very recently complained that colleges were too restrictive of free speech now pivoted to criticizing university administrators for being insufficiently restrictive. Some of that criticism called out university leaders for perceived hypocrisy, charging that antisemitic speech (and acts) were tolerated in circumstances when other forms of offensive speech would not be. But much of the criticism was simply oblivious to the obvious tension with prior positions.
The paradigmatic example was the hearing last December before the House Education and Workforce Committee, during which Congresswoman Elise Stefanik excoriated university presidents for describing their campus policies in ways that very closely tracked the limits on free speech restrictions encapsulated in the bipartisan Supreme Court consensus. Stefanik’s successful efforts to oust university presidents bore more than a passing resemblance to infamous hearings before the House UnAmerican Activities Committee and the subcommittee investigations into the U.S. Army led by Senator Joseph McCarthy.
Stefanik is hardly alone. An organization calling itself the Cornell Free Speech Alliance (CFSA) formed a number of years ago, mostly to oppose university efforts to promote diversity, equity, and inclusion (DEI)—a program that many conservatives see as a liberal orthodoxy inimical to free speech. Whatever the merits of their critique of DEI, at some point last year, CFSA joined the chorus of conservatives complaining that colleges and universities were not doing enough to curtail the speech they disliked.
Consider a mass email from CFSA last month criticizing the Cornell administration for a supposedly insufficient response to a group of students who forcefully disrupted a career fair on campus. It asks rhetorically,
how on earth does Cornell’s administration believe it is acceptable to cave into a small group of childish protesters by shutting down a career fair? Cornell handed these children a great victory in their quest to disrupt the lives of fellow students. In doing so, Cornell denied the far larger contingent of hard-working students the chance to explore job opportunities with firms who travelled to Cornell specifically to meet Cornell students. How many other recruiters will now avoid Cornell, for fear of becoming entangled in squabbles with silly campus activists?
To be clear, I do not condone what the protesters did that day, including physically pushing campus police officers and indeed causing a disruption. Those who did the pushing committed a crime, and the others at the very least violated campus rules.
But it is passing strange that an organization ostensibly dedicated to free speech would go out of its way to call protesters “childish” and “silly.” An organization that was genuinely committed to free speech but thought that the protesters had crossed a red line would have said something more like this: Of course peaceful protest should be protected, but when protest spills over into violence or disruption, then even we, as champions of free speech, cannot support it.
It probably did not even occur to whoever wrote the actual CFSA email that although a free speech organization need not support every form of protest, it should not be among the loudest voices demanding punishment of protesters—even if they are transgressive protesters.
The Path Forward
About a year ago, a former student of mine who is uncommonly principled reached out to express the hope that the latest round of controversies could rekindle on college campuses and beyond the bipartisan consensus favoring free speech. Liberals concerned about what they regard as excessive crackdowns on pro-Palestinian protesters could make common cause with conservatives concerned about what they regard as excessive pressure to espouse “politically correct” or “woke” perspectives. At the time, I thought that was indeed a possible path forward, although the ensuing period has made that possibility seem less likely.
Indeed, as I noted in a column on this site last month, most of the movement has been in the other direction. Campuses across the country have moved to crack down harder. If there is a bipartisan consensus, it could be against free speech.
That consensus will likely prove elusive as well, however. While it is possible—indeed essential—to write content-neutral time, place, and manner restrictions, one of the most contentious issues concerning campus speech poses the question when speech creates a “hostile environment” based on a protected classification (such as race, national origin, or ethnicity, which, for most purposes includes hostility taking the form of antisemitism or Islamophobia). And whether speech amounts to harassment certainly depends on content. Thus, it will likely prove difficult for people with profoundly different ideas about what counts as, say, a call for genocide, to agree about whether particular instances of campus speech amount to harassment.
That leaves one possibility. If liberals and conservatives cannot agree on either a more protective or more restrictive approach to speech, we will continue to see “free speech” used as a bludgeon and as code for speech by those with a favored viewpoint. In an era of extreme polarization, that outcome is to be expected, even if unwelcome.
