The American left is waging war on free speech. That’s the consensus from center-left to far right; even Nazis and white supremacists seek to wave the First Amendment like a bloody shirt. But the greatest contemporary threat to free speech comes not from antifa radicals or campus leftists, but from a president prepared to use the power and authority of government to chill or suppress controversial speech, and the political movement that put him in office, and now applauds and extends his efforts.
The most frequently cited examples of the left-wing war on free speech are the protests against right-wing speakers that occur on elite college campuses, some of which have turned violent. New York’s Jonathan Chait has described the protests as a “war on the liberal mind” and the “manifestation of a serious ideological challenge to liberalism—less serious than the threat from the right, but equally necessary to defeat.” Most right-wing critiques fail to make such ideological distinctions, and are far more apocalyptic—some have unironically proposed state laws that define how universities are and are not allowed to govern themselves in the name of defending free speech.
“While politically correct shaming still has great power in deep-blue America, its effect in the rest of the country is to trigger a furious backlash, one characterized less by a desire for dialogue and discourse than by its own rage and scorn,” National Review’s David French recently wrote. “So we’re moving toward two Americas—one that ruthlessly (and occasionally illegally) suppresses dissenting speech and the other that is dangerously close to believing that the opposite of political correctness isn’t a fearless expression of truth but rather the fearless expression of ideas best calculated to enrage your opponents.”
Most of the debates about free speech, however, are not actually concerned with the First Amendment’s protections. As French acknowledges—and he is among the few on the right to do so—what is actually occurring on most college campuses is a conflict between groups over the value of particular ideas, not the censorship of free expression through state power. In any society, ideological and social consensus will lead to some ideas being unacceptable to the majority and consigned to the fringe. The question is which ideas will suffer this fate. Far from portends of an apocalypse, these are conflicts that are to be expected between groups in the polity that have profound differences of opinion over moral values.
The public attention to this conflict has vastly outpaced the attention drawn to actual threats to free speech from the state, which are numerous. And it has also obscured the extent to which some conservatives, as well, are prepared to deploy public humiliation to deprive speakers of their livelihoods or bully them into submission.
At Texas A&M, Tommy Curry, a black professor, was driven from his home with his family after his controversial remarks on violence and race drew the attention of American Conservative columnist Rod Dreher; singling out left-wing college professors is a frequent source of content at Steve Bannon’s Breitbart News. The former San Francisco 49ers quarterback Colin Kaepernick cannot find employment in the the National Football League after his protests against police brutality. A police union in St. Louis urged members to bombard a local store owner with calls, after he accused some officers of misconduct, one of several recent examples of police unions attempting to intimidate critics. Black Lives Matter activists protesting the lack of accountability in lethal shootings of black men by police are routinely attacked as terrorists.
It’s hard to understand why making one’s livelihood depend on a refusal to criticize armed agents of the state with the authority to kill would draw less outrage than safe spaces on college campuses. And although these examples of conservative efforts to define the boundaries of public speech are new, the conflict is not.
During the debate over the Iraq War, the Republican chairman of the House Administration committee was so triggered by French opposition to the ill-fated invasion of Iraq that he directed the cafeteria menus to substitute “Freedom Toast” and “Freedom Fries;” his Democratic colleague Barbara Lee, who voted against the war, received boxes of letters calling her un-American, treasonous, and far worse. In the years following that conflict, liberal and left-wing critics of the war were frequently called treasonous; in 2006, President George W. Bush told campaign crowds that “the Democrat approach in Iraq comes down to this: The terrorists win and America loses.”
Neither have some conservatives disdained to use of the power or authority of the state to censor free speech. Republican legislators have proposed “Blue Lives Matter” bills that essentially criminalize peaceful protest; bills that all but outlaw protest itself; and bills that offer some protections to drivers who strike protestors with automobiles. GOP lawmakers have used the state to restrict speech, such as barring doctors from raising abortion or guns with patients, opposition to the construction of Muslim religious buildings, and attempts to stifle anti-Israel activism.
There’s physical assault of a reporter by a Republican candidate in Montana; Attorney General Jeff Sessions’s prosecution and re-prosecution of an activist who laughed at him during his confirmation hearing; his multiple public refusals to rule out prosecuting journalists; the president’s vows to imprison his political rivals; his encouragement of violence against protesters; Trump’s threat to tax Amazon because its owner Jeff Bezos is also the owner of The Washington Post, which has published coverage critical of the president; the White House’s demands that ESPN fire Jemele Hill, a black on-air host who called the president a white supremacist; and Trump’s attempt to chill press criticism by naming the media an “enemy of the people” have all drawn cheers from some conservative commentators.
In this sense, Trump’s views on free speech, exemplified by his threat to cut off federal funding to Berkeley on free-speech grounds, and his later demand that NFL team owners fire players who protest police brutality, perfectly exemplify the strain of conservatism that insists those on the left are sensitive snowflakes who cannot sustain a dissenting view, and that simultaneously angrily demands that the state and society sanction the left for the expression of political views it finds distasteful.
The unpleasant truth is also that free speech absolutism has rarely been a popular position in practice, and certainly not in bygone generations where suppression of radical ideas was seen as a pressing matter of national security. Its preservation in law has always relied on the commitment of American political leadership—and there have been few moments in American history when the occupant of the White House has been less committed.
After Trump called football players protesting police brutality sons of bitches who should be forced to stand for the national anthem at a rally in Alabama, National Review’s Rich Lowry, who previously complained that the left was “feverishly attempting to squash unwelcome speech on college campuses,” praised the president’s “gut level political savvy;” the most withering criticism Lowry could muster of a head of state demanding forced displays of national loyalty from private citizens demanding equal rights was that it was not “necessarily common sense” to do so.
But even if conservative intellectuals were wholly consistent, one lesson of 2016 is that the pulse of the contemporary conservative movement is not to be taken in the high-minded arguments published in National Review, but in the crowds like the one that gathered in Alabama and cheered wildly as the president demanded black men be fired for nonviolent acts of political dissent against the unjustified killing of other black men by agents of the state.
There is no comparable push for the restriction of political expression on the left, and it’s not hard to imagine what that would look like: A demand for European-style hate speech laws and constitutional amendments, some sort of explicit legal defense of anti-fascist violence, legislation to allow the banning of conservative speakers from campuses or to codify campus speech codes into law, none of which a single major Democratic official proposes. Virtually the only thing conservatives can point to even remotely related to speech are attempts to regulate the nigh-unlimited ability of the ultra-wealthy to steer the course of elections and legislative battles to their priorities to the point of legitimized bribery, which is not at issue in the campus free speech battles.
By contrast, the campus threat-to-free-speech story survives in disproportion to its importance because it involves the children of financial and scholarly elites who drive press coverage; because it allows elders to sneer at a younger generation, and because of conservative media outlets which see these stories as politically useful and amplify such stories for their audience. But it also allows conservatives to frame the current argument over free speech as a conflict between people who are tolerant of opposing views and those who attempt to suppress them out of fear and weakness, a frame that elides the extent to which that describes their own movement.
Republicans are for more likely than Democrats for example, according to a recent YouGov poll, to support the silencing or fining of media outlets that publish “biased” stories, a practice that would necessarily involve a government censor (45 percent to 18 percent). A 2017 poll commissioned by the Newseum found that in 2017, “less than 16 percent of self-described Liberals agreed that the First Amendment goes too far in the freedoms it guarantees (15.8 percent) compared to about one-quarter of both Moderates (26.3 percent) and Conservatives (24.6 percent).” Republicans (37 percent) were more than twice as likely than Democrats (14 percent) to agree that “we have gone too far in expanding the right to protest or criticize the government,” according to a Marist poll taken shortly after Charlottesville.
But what about the violent protests at Middlebury and Berkeley? What about Nazi punching? Although support for political violence (particularly against Nazis) may be prevalent on Twitter, it is unpopular in general. Campus violence is rare, but it also hardly stifles conservative speech—more frequently, it backfires, enhancing the stature of conservative speakers, making them martyrs to right-wing audiences, and in some cases helping to sustain careers that could not thrive in the market absent support from wealthy conservative patrons. The irony of campus violence is that more often than not, it acts not as suppression of conservative ideas but as free advertising for them.
The Nazi-punchers of Antifa remain a fringe—albeit one whose use of organized political violence is decidedly limited and non-lethal compared to the right-wing extremists who have inherited centuries-old traditions of terrorism and murder, and who have received the tacit approval of the president as “very fine people.”
Yet despite the insistence of the Nazi-punchers that their violence poses no threat to free speech, it does—in no small part because of the possibility of escalation. It’s not simply the danger of non-lethal violence leading to the lethal variety, but that those who believe their views may ultimately be singled out will respond by targeting their own political enemies with violence; and that anti-fascist violence can be used as a justification for violent state repression of dissent. Neither the chilling effect of Nazi-punching on speech nor its use of violence can be limited to its original, reprehensible targets. Once a category of people has been deemed exempt from the normal rules of democratic politics, it is impossible to keep the category from expanding, or others from inventing their own.
That does not make Antifa the moral equivalent of Nazis, nor does it make that movement a more pressing threat to free speech than those who hold the reins of the state and use that power to stifle dissent.
Public support for organized political violence remains low across the political spectrum, and it is one of the strange moral paradoxes of American politics that Nazi-punching is reviled by influential figures across the political spectrum but reflexive support for violence on the industrial scale of modern war is considered respectable.
It is true that many liberals and members of the left exert social pressure on ideas they find abhorrent, as do conservatives. For those who find themselves at the center of such disputes, the experience can be painful or even scary, but they are also an inevitable part of a society where people are allowed to express themselves—some ideas can and should fall into disfavor, even if they can be expressed without fear of state punishment. Even as they portray liberals and leftists as weak snowflakes, conservative complaints about political correctness often reflect acute sensitivity to liberal or left-wing criticism—criticism that when they can, they try to silence through opprobrium.
That’s not to say that such conservatives are opposed to free speech entirely—when it comes to discrimination in the public square, their defense of the principle is unwavering. Before the Supreme Court is the case of a Christian baker who refused to serve gay and lesbian customers, discrimination outlawed by Colorado state law. In that brief, the Trump administration subtly indicated that, far from simply being a matter of religious views on marriage, “free speech” should be understood to protect businesses that wish to discriminate.
As my colleague Garrett Epps writes, the Trump administration’s brief in that case argues that “the government may not compel an unwilling expressive group or event to admit speakers at odds with its message.” More ominously, Epps writes “‘State laws targeting race-based discrimination may survive heightened First Amendment scrutiny,’ the brief says. That’s because the Supreme Court has decided that combatting even private racial discrimination ‘is the most ‘compelling’ of interests.’”
That “may,” Epps notes, “invite future First Amendment challenges to all kinds of racial protections.”
Try to keep your head from spinning too fast at the Trump administration arguing that an expressive group can deny speakers at odds with its message—the very target of conservative legislative proposals aimed at college campuses—the argument itself could be seen to apply to any belief, such as that black people are inferior and shouldn’t share public spaces with white people. By this logic, compelling businesses of public accommodation not to discriminate, as the Civil Rights Act of 1964 does, could be unconstitutional coercion of individuals to express values they do not hold. That’s a vision of “free speech” that the Nazis rioting in Charlottesville would be delighted with.
It’s also hardly far afield from the origins of the modern conservative movement, born from the embers of Arizona Senator Barry Goldwater’s 1964 candidacy, and whose opposition to the Civil Rights Act was core to his victory in the white South and cementing the region’s turn towards the Republican Party. Ultimately the purpose of the argument before the Supreme Court is to create an exception to anti-discrimination protections large enough to encompass any form of economic activity.
Nor is legalizing discrimination in businesses of public accommodation the only potential consequence of such logic. Some conservatives were outraged when the former Google engineer James Damore was fired for penning a memo that implied men were biologically more inclined towards technical pursuits than women—after initial interviews with several alt-right figures and a public campaign to paint himself as a victim of left-wing political correctness, Damore embarrassed himself by musing publicly about the “coolness” of Klan titles on twitter.
But could any woman who might be supervised by Damore have expected to be evaluated fairly by someone who believed the company’s gender gap was largely the outgrowth of innate, biological differences between men and women? How many departures of women employees who refused to work with Damore should Google have sustained in order to retain him? How many lawsuits from workers who believed they were denied promotions or raises because they are women should Google have sustained? Why do conservatives only support an exception to at-will employment for an employee who expresses the view that he is biologically predisposed to do his job better than his colleagues? (Asked about the NFL protests, Treasury Secretary Steve Mnuchin offered the rather unoriginalist constitutional interpretation that that the players “have the right to have the First Amendment off the field.”)
The boundaries of free speech that elements of the conservative movement mean to set delineate a world in which the state protects the right to discriminate against religious, ethnic, sexual, and gender minorities, and those who choose to protest such treatment can be easily marginalized with public opprobrium or state violence if necessary. For much of the country, and for those who have historically been denied basic rights, it is a vision of an unfree society.