Discovering a New Approach to Freedom of Speech and Cancel Culture
Free Speech Needs Principled Defenders, Not Fairweather Friends
By Jonathan Friedman – Director of Free Expression and Education, PEN America
Partisan Legislators are not Defending Free Speech
As an expert on free speech and education, I watch with some confusion as states like Idaho pass laws like the “Protecting Critical Thinking in Higher Education Act”—an effort to ensure free, robust, and uninhibited debate among students—but in the same session, also pass HB 377, a bill that attempts to put outright bans on what educators can and cannot incorporate into their lesson plans.
It shows just how often free speech finds only fairweather friends, particularly among partisan legislators. It illustrates why defenders of the First Amendment on the right and the left should be wary of lawmakers and others in power who purport to defend free expression but only do so when it’s in their interests.
Restrictions of Free Speech in Higher Education
While the Idaho example played out mostly among conservative legislators, we also see actors on the left who say they adhere to free speech principles but seek to punish speech that they see as out of bounds. University and college campuses are often the setting for controversial debates on free speech with left-leaning actors. Professors whose views on race or gender are at odds with progressive politics have faced the prospect of being disciplined, students have been suspended from sports teams over hateful comments on social media, and quoting a racial slur while reading a legal case has led to stringent speech policies.
Power-holders on the left and right have long struggled with upholding the First Amendment while also tending to the political pressures they face to censor ideas, representations, or words their supporters find objectionable. These contradictions fester in statehouses and on campuses today, with both sides looking to punish and prohibit speech they find harmful or offensive.
That’s not to say both sides today are arguing in good faith. Particularly in an educational context, battles over offensive or hateful speech and calls for new strictures from progressives are often reactions to centuries of oppression, white supremacy, and racism—why should I defend the right of someone to use the most sinister word in the English language while Black, Latino, indigenous, and other communities have been silenced for generations? That’s a crucial piece of the debate and one that deserves a hearing.
Struggles with Free Speech Throughout History
Both the left and right have historically sought ways to bend free speech to suit certain constituencies. A hundred years ago, before the First Amendment doctrine took its contemporary shape, battles over the bounds of its protection were fiercely contested as well.
In the early decades of the 20th century, for example, authorities frequently arrested anarchists and members of the Industrial Workers of the World (IWW) to prevent them from giving radical political speeches on street corners. They used the power of the state to blatantly and preemptively silence speech they found dangerous. As constitutional scholar David Rabban writes in Free Speech in its Forgotten Years, these authorities did often express fidelity to the principle of free speech; they simply believed that the First Amendment should not extend to the language of IWW representatives that they viewed as obscene and unpatriotic.
The hypocrisy proved untenable. It led to significant conflict, undermined trust in government, and likely drove people to embrace the very ideas that officials were trying to stifle. “Free speech” became a powerful rallying cry of the IWW precisely because the powers of the state were being selectively used to undermine members’ civil liberties.
Similar challenges arose when groups subject to derogatory speech put pressure on government officials to bar hateful words and representations. For example, as M. Alison Kibler explains in her book, Censoring Racial Ridicule, efforts by the NAACP in the early 1920s to ban the notoriously racist film, Birth of a Nation, required “elaborate justifications,” because the group simultaneously invoked free speech principles while defending their right to publicly protest the film. Their leaders realized that whatever exceptions they developed to advocate for the censorship of the film could inadvertently backfire and be used against them. It was a prescient expectation; a century later, President Trump cast Black Lives Matter activists as engaging in hate, in an effort to undermine and silence their demands for racial justice.
The Importance of Non-partisanship
Over the course of the 20th century, the Supreme Court came to see efforts to carve out exceptions to the First Amendment to advance censorship of one kind or another—from both left and right—as deeply flawed. And like the NAACP, the justices were concerned that any precedent concerning one form of abhorrent or offensive speech could come to justify censorship of another idea in the future. The challenge of upholding the First Amendment in a non-partisan manner, however, is nonetheless renewed with every generation. Judicial precedent alone is not enough of an impediment for power-holders, whether university leaders or elected officials, to attempt to skirt constitutional rules to appease short-term political interests.
One guiding rule is that any official that asks for new governmental powers to uphold free speech should face considerable public skepticism. That skepticism should be present when speech restrictions are being proposed from any point on the political spectrum because of the likelihood that such restrictions will exhibit bias and weaken our social contract. Democracy demands that its values and principles be upheld for all people equally, and free speech must be among these universal rights.
In truth, fickle stewardship of the First Amendment, from wherever it emanates, will do as much or more to damage and undermine our democracy in the long run than some of the other threats to free speech we see on the rise today. It is Republican legislators in statehouses who are today exemplifying this in spades—trying to stop sex education, bar kneeling during the national anthem, and stifle discussions of race, gender, and sexual orientation. But sustaining free speech through this era of polarization will require a non-partisan disposition less enmeshed in a contemporary culture war.
An Analysis of an Often Overlooked Threat to Free Speech: Society
By Victor Menaldo –Professor of Political Science, University of Washington
Traditional defenses of free speech revolve around limiting the government’s ability to infringe on citizens’ expression and association. They also center on treating free speech as an unalloyed right, something sacrosanct, no matter the consequences. Here, I depart from this orthodox approach. On the one hand, I will make the case that free speech should be about a cultural appreciation for free expression and the social institutions that foster the marketplace of ideas. On the other, I will argue that free speech is valuable for instrumental reasons: we should cherish it because of, not despite, its effects.
The Speech Paradigm
Before doing so, I want to introduce a new framework for thinking about free speech. We might refer to it as a political economy approach. It is based on appreciating the costs of shifting from one speech paradigm to another; specifically, of transitioning from free speech to censored speech or vice versa. The aim is to introduce readers to the idea that getting the speech paradigm right is important because once we lock into one approach, others are foreclosed, as are their desired effects.
Unfettered free speech means the speaker has the right to talk, if not think freely. To say what is on her mind, unencumbered, without worrying too much about how it will be received by others. The listener, therefore, must bear the consequences of that speech. It might offend him. It might make him angry. It might simply be something he was not ready to listen to. Of course, this may mean the listener finds a way to ignore or avoid the unwanted speech and therefore sidesteps its costs and inconveniences. Or it might mean that he just grins and bears it.
The Relationship Between the Speaker and the Listener
This is only one possible way of organizing information flow. An alternative is to give the listener the right. That means: The speaker must anticipate how her speech will affect the listener, and she must adjust her behavior in kind. Anticipating she will be censored or excoriated, she must adjust what she says or how she says it—to avoid offense, injury, or discomfort. Or, of course, there is yet another way to do allocate speech rights: To find a middle ground, where the speaker experiences some limits on what she says and the listener relaxes the expectation that he will be perfectly accommodated—which, in any event, would demand uncanny foresight on the speaker’s part. Try as it may, Cancel Culture will probably never be able to achieve such an end.
In a perfect world, it would not matter who is afforded the initial right, speaker, or listener. Suppose that the rules of the road are unfettered free speech. If it were worth enough to the listener, he would find a way to encourage, entice, or bribe the speaker to adjust her speech. To be more accommodating. And vice versa: If there were limitations on speech, the speaker may persuade or cajole the listener to allow her more freedom to speak. She may even pay him to allow her to fully articulate whatever is actually on her mind.
Of course, we do not live in a perfect world. If the listener has the right to hear what he wants, it might be impossible, or at least difficult, for a speaker to arrive at an arrangement with him that is closer to what she would like. To speak more freely. In fact, the art of convincing the listener might itself depend on a right to free expression. And vice versa: When free speech is the coin of the realm, listeners might simply have a hard time getting speakers to curb what they say. Speakers may not even understand how to censor themselves. To find the right euphemism. To develop a better bedside manner when transmitting their thoughts. Cancel Culture be damned.
Therefore, getting things right in this case matters. In fact, it is of paramount importance. What is at stake is huge: democracy, economic development, and egalitarianism.
Freedom of Speech is a Necessity for Society
It turns out that if we want to live in a more democratic, prosperous, and egalitarian society, it is critical that our cultural default be free speech, not fettered thought. Even if there are costs associated with unfettered free expression for listeners, such as those I listed above, the benefits of giving the right to speakers far outweigh them.
First, take democracy. This approach to structuring political life rests on free access and entry into the social sphere by both individuals and groups. They must be able to organize. To run for office. To vote. To air different ideas. These things are the basis of vibrant competition in the political realm. And they underpin accountability. Without incentives and opportunities to organize and speak freely, you cannot get closer to understanding what the people want and need. That depends on experimenting with new ideologies and policies. It is about speaking truth to power. It requires information gathering, connecting cause and effect, and identifying and sharing problems and injustices.
Second, take prosperity. The key to economic development is innovation. Indeed, the most powerful predictor of higher standards of living is openness to new technologies and approaches, not accumulating a whole bunch of blast furnaces, scientists, or natural resources. Just ask the Soviet Union. In turn, innovation depends not only on technology, but constant institutional changes, cultural dynamism, and endless experimentation. It depends on the diffusion of best practices, knowledge, information, techniques, strategies, and business models. Countries that encourage entrepreneurs to try new ways of doing things, that allow firms to organize in novel ways, that encourage workers to broaden their horizons and receive flows of knowledge and ability grow wealthier — thus endowing their citizens with more food, better housing, greater health and longevity, and more leisure.
Finally, take egalitarianism. Free speech is not only critical to shrinking the gap between rich and poor countries — the former located at the technological frontier and the latter reliant on access to the ideas, ability, and techniques that they sometimes take for granted — but also to reducing inequalities between citizens within countries. The most important cause of income inequality and social stratification is the hoarding of information and knowledge at the top of the distribution. When individuals are free and able to acquire the education and skills that complement new technologies, they unlock their potential and bolster their productivity. This allows them to earn higher wages and enjoy other opportunities to generate income, such as receiving royalties from inventions or generating profits from making good investment decisions.
The Importance of the Pursuit of Free Speech
Free speech allows folks to hone the skills and attitudes associated with knowledge acquisition. Openness to new ideas. Challenging conventional wisdom. Experimentation. And the cultivation of facts, logic, and evidence by practicing the scientific method, not genuflecting to dogma. Nobody ever got more democratic and richer by unquestionably worshipping their more benighted ancestors. Respect them, sure. Honor them, of course. Question them? Always.
It is of course the case that we should also keep the government from infringing on free speech. And it is obvious to many citizens that we should enshrine this right in a foundational document like the Constitution because we value it so dearly. But even if these two things were not true, it is still critical from a social engineering perspective that we encode free speech into the DNA of our culture. Let us not allow ourselves to become a society that loses its democracy, prosperity, and egalitarianism and then regrets having eroded the basis of those good things. Therefore, remember to celebrate free speech, even if it sometimes causes you offense or injury.
This article is part of Divided We Fall’s “Constitutional Questions” series, covering a range of political topics fundamental to the U.S. Constitution and democratic institutions. Through this series, we ask constitutional scholars, journalists, elected officials, and activists to discuss how these ideals are – and are not – implemented today. If you want to read more pieces like this, click here.