Free Speech Will Survive This Moment

Optimists and pessimists offered competing visions for the future of the First Amendment at The Atlantic Festival.

Jeffrey Goldberg, Ibram X. Kendi, and Ruth Marcus at The Atlantic Festival
Jeffrey Goldberg, Ibram X. Kendi, and Ruth Marcus at The Atlantic Festival (Kris Tripplaar / The Atlantic Festival)

Can you name five democratic values that all of the “tribes” in our nation share? That’s the question the historian Elizabeth Griffin posed Tuesday during a panel at The Atlantic Festival in Washington, D.C., prompting a debate about what, if anything, really unites today’s Americans.

For Jeffrey Rosen, who leads the National Constitution Center, a nonpartisan organization charged by Congress to increase understanding of the Constitution, the American creed resides in the Declaration of Independence––that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness––and even America’s alarmingly polarized ideological tribes are united by parts of the Bill of Rights.

“Congress shall make no law respecting freedom of speech, abridging the freedom of conscience, allowing unreasonable searches and seizures,” he said. “No warrants shall issue but upon probable cause particularly describing the thing to be searched.” He took a copy of the Constitution from his pocket. “This is the reveal,” he said. “These are the values. We ascribe to them. We embrace them. We must revere them.”

Pushing back was Jeffrey Goldberg, The Atlantic’s editor.

“You’ve been on college campuses. I’ve been on college campuses,” he said. “Among certain Millennials, you don’t see a reverence for the idea of the First Amendment. There’s a broad school of thought that says freedom of speech is a way that the ruling-majority white-male overlords of this country … suppress marginalized people. You’ve heard this … These things are not universally understood to be good things anymore.”

Ruth Marcus, the deputy opinion editor at The Washington Post, was similarly pessimistic. “I love those words,” she said, but she doubts that “we really could get the vast agreement on those propositions today.”

The question was next put to Ibram X. Kendi, a professor and the director of the Antiracist Research and Policy Center at American University.

“Well, I think one of the cases that Millennials want to make, and I guess I’m a Millennial,” he said, “they’re not articulating it as such, but I think what they’re saying is that there’s such a thing as ‘unfree speech.’”

He went on to characterize what he meant. “Unfree speech is speech that is false,” he argued. “That’s violent. That’s damaging. And that’s the speech that they’re pushing back against in their spaces and on their campuses.”

His answer to what democratic values unite us?

“I would say all men are created equal,” he said, “but I think that I would advance that and develop that to our time to say that all groups are equal. I think it’s a very subtle and interesting difference, because when you say created, that means certain groups become inferior and so therefore we have to civilize and develop them. But if you say all groups are equal right now, then we can literally talk to each other on the same plane.”

As a close observer and frequent commentator on speech-related controversies, I would counsel cautious optimism about the status of free expression as a shared value. The First Amendment has survived 227 years, it protects whole categories of speech today that few Americans would’ve fought to protect in 1789 when it was ratified or in 1791 when it went into effect, it is valued by both competing factions on the Supreme Court, and its enemies are likely weaker than in many bygone eras.

Attacks on the First Amendment are not historically anomalous: There have always been elements opposed to free speech, in American society and elsewhere.

Indeed, the unchanging nature of the threat to free speech is aptly underscored by Kendi’s distillation of what motivates Millennials to oppose “unfree speech” they see as “false” or “violent” or “damaging.”

What characterized and ostensibly justified the murderous mobs of post-Reformation Europe and the papal inquisitors? The earnestly held conviction that heretical speech was false.

What ostensibly justified the arrest of Robert Watts, an 18-year-old African American protesting the Vietnam War? The finding of police, prosecutors, a jury, and an appeals court that his words were akin to violence when he declared, “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is LBJ … They are not going to make me kill my black brothers.”

What united enemies of free speech as varied as Socrates’s persecutors, Anthony Comstock, Woodrow Wilson, Joseph McCarthy, and Ayatollah Khomeini? The proposition that the speech they sought to punish was unworthy of protection because it was “damaging.”

To oppose protections for “unfree speech” as Kendi defines it is to reject the spirit and letter of the First Amendment. As Oliver Wendell Holmes put it: “The principle of free thought is not free thought for those who agree with us but freedom for the thought we hate.”

What’s more, to punish “unfree speech” is to attack equality. Indeed, if the proposition “all groups are equal right now” were universally shared on college campuses, then no group would believe itself justified in asserting coercive control over what members of another group are permitted to say.

Still, the Bill of Rights is valued widely enough, at this very moment, to survive until the next generation—at least if those who value it are sufficiently vigilant in spotting threats and unapologetic in fighting them.