Monday Morning Thoughts: The Free Speech Dilemma

For some time I have been troubled by the push to shut down speech that people have labeled as hate speech.  In the last month, this has manifested itself through the shutdown of Milo Yiannopoulos at UC Davis a month ago and at UC Berkeley in the last two weeks.

Since I have been asked to give a guest lecture on the topic today, I figured I would share some thoughts.  Unfortunately I think many on the left are wrong here – that shutting down free speech is a dangerous precedent that will come back to haunt them down the line.

The right to free speech is enshrined in the First Amendment to the Constitution which reads “Congress shall make no law… abridging the freedom of speech, or of the press…”  I leave the press in there for self-serving reasons, as the press becomes the conduit by which free speech can be transmitted to the populace.

Thomas Jefferson would write, “Our liberty depends on the freedom of the press, and that cannot be limited without being lost.”

Benjamin Franklin on freedom of speech: “Freedom of speech is a principal pillar of a free government: When this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates.”

George Washington: “If men are to be precluded from offering their sentiments on a matter, which may involve the most serious and alarming consequences that can invite the consideration of mankind, reason is of no use to us; the freedom of speech may be taken away, and dumb and silent we may be led, like sheep, to the slaughter.”

Cato said of the freedom of speech that “this sacred privilege is so essential to free government.”  He said, “In those wretched countries where a man can not call his tongue his own, he can scarce call any thing else his own.  Whoever would overthrow the liberty of the nation, must begin by subduing the freedom of speech; a thing terrible to publick traitors.”

Earlier this year Nat Hentoff, one of the foremost advocates of free speech, passed away.  When I was in college, his book, Free Speech For Me But Not For Thee, first came out.  Here he argued that both the left and the right are working to stifle the free speech from both sides.

In his book he quotes Arthur Gilbert, a justice on the Second District Court of Appeals in Ventura, California: “The Bill of Rights was enacted just so that politically incorrect points of view could be expressed. If lawyers become intimidated by enforcers of correct thought, then we are in big trouble…. If lawyers forget this, we will ultimately have a society where ideas are crimes. Fahrenheit 451, Brave New World, and 1984 will have been written in vain.”

In a 2000 interview, Mr. Hentoff, paraphrasing Justice Oliver Wendell Holmes, wrote that “we believe in the free speech we agree with,” and the real test is “do you believe in the right of people whose speech you hate to speak freely?”

Justice Holmes wrote that “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”

In May 2015, Eugene Volokh wrote in the Washington Post, “I keep hearing about a supposed ‘hate speech’ exception to the First Amendment, or statements such as, ‘This isn’t free speech, it’s hate speech,’ or ‘When does free speech stop and hate speech begin?’ But there is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas.”

He added, “To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with ‘hate speech’ in any conventionally used sense of the term.”

On February 2, this year, he quoted from an LA Times article on the Milo speech at UC Berkeley, noting that the same thing happened a few weeks earlier at UC Davis.

“In the weeks before Yiannopoulos’ planned Berkeley appearance, administrators received hundreds of letters from faculty, students and others demanding they bar him from speaking.  One letter from a dozen faculty members argued that his talk could be canceled on the grounds that his actions — which they called ‘harassment, slander, defamation and hate speech’ — violated UC Berkeley’s code of conduct.”

Last week on Medium, writer Julia Serano summarized the free speech view, before rejecting it.

She wrote, “Many others who do not share these views may instead adhere to free speech absolutism, and their reasoning might be summarized as follows:

1) The First Amendment to the Constitution (or analogous statutes in other countries) ensures our right to “freedom of speech.”

2) Therefore, even if we detest Spencer’s and Yiannopoulos’s extreme racist, misogynistic, and xenophobic beliefs, we must nevertheless defend their right to freely express them.

3) Any attempt to suppress or silence Spencer or Yiannopoulos (or their views) is essentially an attack on freedom of speech itself. And once we start down that slippery slope, it is only a matter of time before we find that our own freedom of speech is in jeopardy as well.”

She argues that, while this may sound compelling on the surface, “the reality is not nearly so clear-cut.”

Instead, she argues that “we have the right to free speech, but that right is somewhat limited. We are by no means entitled to ‘free speech without criticism or consequences,’ nor are we entitled to an audience.”

She then cites Karl Popper, and his classic work, The Open Society and Its Enemies, where he writes, “Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them.”

Ms. Serano argues, “Those of us who are passionate about free speech, and who want to live in a truly open society, cannot afford to be bystanders anymore. We must absolutely refuse to tolerate intolerant speech and the people who promote intolerant ideologies. The First Amendment may prohibit Congress from passing laws censoring white nationalist beliefs, but the rest of us are well within our rights to wholly refuse to accept, and to refuse to provide a platform for, anyone who espouses or enables such intolerant ideologies.”

But perhaps the most compelling argument against Ms. Serano comes from Ryan Holiday in his article, “I Helped Create the Milo Trolling Playbook. You Should Stop Playing Right Into It.”

This has been my belief for some time – the left has actually made these forces much stronger by fighting them rather than ignoring them.

Mr. Holiday wrote, “In 2009, I helped sketch out a marketing campaign for an internet personality and blogger named Tucker Max.”  He argued that “my thinking was that one of the best ways to get young men to go see a movie was to tell them they should not be allowed to see it. What ensued was several months of chaos and controversy that ultimately drove Tucker’s book to No. 1 on the New York Times Bestseller list, sold out a multi-college bus tour and ultimately sold millions of dollars worth of tickets, dvds and books.”

He writes that “it’s basically the exact playbook that right wing blogger Milo Yiannopoulos is running on his own cross-country trolling tour. By almost any metric but political correctness, it’s been masterfully successful—his book has since been to #1 on Amazon twice, and the protests at UC Berkeley last week generated national headlines and were addressed directly by the President.”

Imagine if Milo had come to UC Davis and UC Berkeley and no one had said anything.  The small number of students and locals would have attended the talk, and, like most other talks, would have generated little buzz, attention, or controversy.

When I attended the Milo protest the day after his main talk was shut down, I found some of his points compelling.  He said that they were going to have a march and show the university that they would not be able to shut people up “because you have the wrong opinions.”

He would quip, “They like diversity, except diversity of opinion.”

“I don’t have opinions that are particularly outrageous,” he said, but added, “I like to say them in an outrageous way of course.  I would never claim otherwise.”

Many would obviously disagree that he doesn’t have opinions that are particularly outrageous.  That’s what true free speech is about.  Is it better to attempt to stop him from saying those outrageous things, or is it better to point them out for what they are?  Or it is better to ignore them altogether?

I think the left have made the people like Milo far more powerful than they need to be.  But there are people who feel vulnerable in our midst who have a difference of opinion, and I think they feel empowered to shut down the Milos of the world.

—David M. Greenwald reporting