Who's Afraid of Free Speech?

What critics of campus protest get wrong about the state of public discourse.

Stephen Lam / Reuters

Middlebury College’s decision to discipline 67 students who participated in a raucous and violent demonstration against conservative author Charles Murray brings closure to one of several disturbing incidents that took place on college campuses this semester. But larger disputes about the state of free speech on campus–and in public life–remain unresolved.

Many critics have used the incident at Middlebury, as well as violent protests at the University of California Berkeley, to argue that free speech is under assault. To these critics, liberal activists who respond aggressively to ideas they dislike are hypocrites who care little about the liberal values of tolerance and free speech.

“The left is absolutely terrified of free speech and will do literally anything to shut it down,” Milo Yiannopoulos posted on Facebook after protesters stormed a building at Berkeley where he was scheduled to speak in February.

Such criticism has not come solely from the right. Nor is it new. Over the past few years, a steady stream of commentary has deplored the state of free speech and intellectual inquiry on campus. The Atlantic has published a series of articles with titles such as “The New Intolerance of Student Activism” and “The Glaring Evidence that Free Speech is Threatened on Campus.” The Foundation for Individual Rights in Education has argued that free speech in academia is at greater risk now than at any time in recent history. And the eminent First Amendment lawyer Floyd Abrams went so far as to claim (prior to the election of Donald Trump) that the single greatest threat facing free speech today “comes from a minority of students, who strenuously, and I think it is fair to say, contemptuously, disapprove of the views of speakers whose view of the world is different from theirs and who seek to prevent those views from being heard.”

The violence at Middlebury and Berkeley was troubling and should be condemned by both liberals and conservatives. But the truth is that violent demonstrations on campus are rare, and are not what the critics have primarily been railing against. Instead, they have been complaining about an atmosphere of intense pushback and protest that has made some speakers hesitant to express their views and has subjected others to a range of social pressure and backlash, from shaming and ostracism to boycotts and economic reprisal.

Are these forms of social pressure inconsistent with the values of free speech?

That is a more complicated question than many observers seem willing to acknowledge.

A simplistic answer would be that such pressure does not conflict with free speech because the First Amendment applies only to government censorship, not to restrictions imposed by individuals. But most of us care about free speech not just as a matter of constitutional law but as a matter of principle, so the absence of government sanction hardly offers much comfort.

Many of the reasons why Americans object to official censorship also apply to the suppression of speech by private means. If we conceive of free speech as promoting the search for truth—as the metaphor of “the marketplace of ideas” suggests—we should be troubled whether that search is hindered by public officials or private citizens. The same is true of democratic justifications for free speech. If the point of free speech is to facilitate the open debate that is essential for self-rule, any measure that impairs that debate should give us pause, regardless of its source.

But although social restraints on speech raise many of the same concerns as government censorship, they differ in important ways.

First, much of the social pressure that critics complain about is itself speech. When activists denounce Yiannopoulos as a racist or Murray as a white nationalist, they are exercising their own right to free expression. Likewise when students hold protests or marches, launch social media campaigns, circulate petitions, boycott lectures, demand the resignation of professors and administrators, or object to the invitation of controversial speakers. Even heckling, though rude and annoying, is a form of expression.

More crucially, the existence of such social pushback helps protects Americans from the even more frightening prospect of official censorship. Here’s why. Speech is a powerful weapon that can cause grave harms, and the First Amendment does not entirely prohibit the government from suppressing speech to prevent those harms. But one of the central tenets of modern First Amendment law is that the government cannot suppress speech if those harms can be thwarted by alternative means. And the alternative that judges and scholars invoke most frequently is the mechanism of counter-speech.

As Justice Louis D. Brandeis wrote in his celebrated 1927 opinion in Whitney v. California, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Counter-speech can take many forms. It can be an assertion of fact designed to rebut a speaker’s claim. It can be an expression of opinion that the speaker’s view is misguided, ignorant, offensive, or insulting. It can even be an accusation that the speaker is racist or sexist, or that the speaker’s expression constitutes an act of harassment, discrimination, or aggression.

In other words, much of the social pushback that critics complain about on campus and in public life—indeed, the entire phenomenon of political correctness—can plausibly be described as counter-speech. And because counter-speech is one of the mechanisms Americans rely on as an alternative to government censorship, such pushback is not only a legitimate part of our free speech system; it is indispensable.

Yet many people continue to believe that pressuring speakers to change their views or modify their language constitutes a threat to free speech.

Kirsten Powers makes this argument in her 2015 book, The Silencing: How the Left is Killing Free Speech. Discussing the case of author Wendy Kaminer, who elicited angry responses from students when she used the n-word as part of a campus forum on free speech, Powers writes that “rather than arguing with her on the merits, her opponents set about the process of delegitimizing her by tarring her as a racist.” Powers also complains that many liberals “instead of using persuasion and rhetoric to make a positive case for their causes and views, work to delegitimize the person making the argument through character assassination, demonization, and dehumanizing tactics.” These efforts, she concludes, “are a chilling attempt to silence free speech.”

It’s worth asking, though, why expression that shames or demonizes a speaker is not a legitimate form of counter-speech.

One possibility, as Powers implies, is that such tactics do not address the merits of the debate.  But that reflects a rather narrow view of what counts as “the merits.” To argue that a speaker’s position is racist or sexist is to say something about the merits of her position, given that most people think racism and sexism are bad. Even arguing that the speaker herself is racist goes to the merits, since it gives the public context for judging her motives and the consequences of her position.

Besides, what principle of free speech limits discussion to the merits? Political discourse often strays from the merits of issues to personal or tangential matters. But the courts have never suggested that such discourse is outside the realm of free speech.

On the contrary, the Supreme Court has acknowledged that speech is valued both for the contribution it makes to rational discourse and for its emotional impact. As Justice John M. Harlan wrote in the 1971 case of Cohen v. California, “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.”

Fine, the critics might say. But much of the social pressure on campus does not just demonize; it is designed to, and often does, chill unpopular speech. And given that courts frequently invoke the potential chilling effect of government action to invalidate it under the First Amendment, social pressure that has a potential chilling effect is also inconsistent with free speech.

The problem with this argument is that all counter-speech has a potential chilling effect. Any time people refute an assertion of fact by pointing to evidence that contradicts it, speakers may be hesitant to repeat that assertion. Whenever opponents challenge an opinion by showing that it is poorly reasoned, leads to undesirable results, or is motivated by bigotry or ignorance, speakers may feel less comfortable expressing that opinion in the future.

Put bluntly, the implicit goal of all argument is, ultimately, to quash the opposing view. We don’t dispute a proposition in the hope that others will continue to hold and express that belief. Unless we are playing devil’s advocate, we dispute it to establish that we are right and the other side is wrong. If we are successful enough, the opposing view will become so discredited that it is effectively, although not officially, silenced.

Such has been the fate of many ideas over the centuries, from claims that the earth is flat to declarations that slavery is God’s will to assertions that women should not be allowed to vote or own property. Each of these positions can still be asserted without fear of government punishment. But those who make them in earnest are deemed so discreditable that the claims themselves have mostly been removed from public debate.

This highlights a paradox of free speech, and of our relationship to it. On the one hand, Americans are encouraged to be tolerant of opposing ideas in the belief that “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” as Justice Oliver Wendell Holmes put it in his landmark 1919 opinion in Abrams v. United States.

On the other hand, unlike the government, Americans are not expected to remain neutral observers of that market. Instead, we are participants in it; the market works only if we take that participation seriously, if we exercise our own right of expression to combat ideas we disagree with, to refute false claims, to discredit dangerous beliefs. This does not mean we are required to be vicious or uncivil. But viciousness and incivility are legitimate features of America’s free speech tradition. Life is not a debating exercise or a seminar room, and it would be naïve to insist that individuals adhere to some prim, idealized vision of public discourse.

This, one suspects, is what bothers many critics of political correctness: the fact that so much of the social pressure and pushback takes on a nasty, vindictive tone that is painful to observe. But free speech often is painful. It was painful to envision neo-Nazis marching through Skokie, Illinois, home to thousands of holocaust survivors, in 1977. It was painful to watch the Westboro Baptist Church picket a military funeral in 2006 with signs reading “Fag troops” and “Thank God for Dead Soldiers.” In both cases, the speech was deeply offensive to our sense of decorum, decency, and tolerance. But the courts rightly concluded that this offense was irrelevant to whether the speech was worthy of protection.

Many critics, particularly on the left, seem to forget this. Although they claim to be promoting an expansive view of free speech, they are doing something quite different. They are promoting a vision of liberalism, of respect, courtesy, and broadmindedness. That is a worthy vision to promote, but it should not be confused with the dictates of free speech, which allows for a messier, more ill-mannered form of public discourse. Free speech is not the same as liberalism. Equating the two reflects a narrow, rather than expansive, view of the former.

Does this mean any form of social pressure targeted at speakers is acceptable? Not at all. One of the reasons government censorship is prohibited is that the coercive power of the state is nearly impossible to resist. Social pressure that crosses the line from persuasion to coercion is also inconsistent with the values of free speech.

This explains why violence and threats of violence are not legitimate mechanisms for countering ideas one disagrees with. Physical assault—in addition to not traditionally being regarded as a form of expression —too closely resembles the use of force by the government.

What about other forms of social pressure? If Americans are concerned about the risk of coercion, the question is whether the pressures are such that it is reasonable to expect speakers to endure them. Framed this way, we should accept the legitimacy of insults, shaming, demonizing, and even social ostracism, since it is not unreasonable for speakers to bear these consequences. This is not to minimize the distress such tactics can cause. But a system that relies on counter-speech as the primary alternative to government censorship should not unduly restrict the forms counter-speech can take.

Heckling raises trickier questions. Occasional boos or interruptions are acceptable since they don’t prevent speakers from communicating their ideas. But heckling that is so loud and continuous a speaker literally cannot be heard is little different from putting a hand over a speaker’s mouth and should be viewed as antithetical to the values free speech.

Because social restraints on speech do not violate the Constitution, Americans cannot rely on courts to develop a comprehensive framework for deciding which types of pressure are too coercive. Instead, Americans must determine what degree of pressure we think is acceptable.

In that respect, the critics are well within their right to push for a more elevated, civil form of public discourse. They are perfectly justified in arguing that a college campus, of all places, should be a model of rational debate. But they are not justified in claiming the free speech high ground. For under our free speech tradition, the crudest and least reasonable forms of expression are just as legitimate as the most eloquent and thoughtful.

This article was written for the Knight First Amendment Institute at Columbia University.