It may not yet be "the end of free speech," but that particular fundamental right is probably a bad candidate for a new life-insurance policy.
We have an environment in which the president of the United States is dismissive of the free speech rights of his opponents, prominent constitutional scholars sniff at free speech unless it's used by the "right" people for their favored goals, and the country's leading civil liberties organization is suffering an internal revolt by staffers who oppose "rigid" support for free speech protections.
Last October, President Trump said "It's frankly disgusting the way the press is able to write whatever they want to write." That came just hours after he tweeted, "With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!" And even before Trump took the oath of office, he'd huffed that protesters who burn American flags should face loss of citizenship or jail.
So if you're an academic with expertise in constitutional law, and you have months to watch a populist politician who commands the power of the presidency fulminate about punishing those who criticize him, what do you do? If you're Georgetown Law's Louis Michael Seidman, you suggest that the president might be on to something.
In a forthcoming paper, Seidman's main complaint is that free speech doesn't inherently favor progressivism—it allows too much voice to people who disagree. "At its core, free speech law entrenches a social view at war with key progressive objectives," writes Seidman.
Sure, "the speech right has instrumental utility in isolated cases," he adds. But "significant upside potential"? Nah.
The doctrine of free speech "is dominated by obsession with government restrictions on speech and with government interference with listener autonomy," and as such it is "ill-equipped to deal with a world where there is too much speech and where listener autonomy makes real conversation impossible," writes Seidman.
[M]ight free speech law be reformulated so as to constitutionally mandate aspects of the positive program favored by progressives? For reasons that I explain below…I think that this outcome is very unlikely. At its core, free speech law is much more conducive to constitutionally required libertarianism.
Seidman considers that free speech might be defended on grounds of tolerance, the search for truth, or popular sovereignty (though he is "agnostic about the value of free speech as so conceived"). But he tuts that "[progressives] just can't shake their mindless attraction to the bright flame of our free speech tradition. Progressives need to turn away before they are burned again."
This isn't the first time Seidman has put forth such a wish. In 2016, he wrote for the Nation, "Would the election of Donald Trump threaten the sanctity of the United States Constitution? We should be so lucky." In fact, Seidman has long been an advocate for dumping the Constitution and its protections in their entirety. He just thinks that Trump is the wrong vehicle.
And Seidman isn't alone in arguing from academia that free speech is overrated. His paper favorably quotes Laura Weinrib of the University of Chicago Law School, author of The Taming of Free Speech: America's Civil Liberties Compromise. Weinrib complained in a Los Angeles Times op-ed last summer that "free speech has served to secure the political influence of wealthy donors," while "labor's strength has plummeted, and the Supreme Court is poised to recognize a 1st Amendment right of public sector employees to refuse to contribute to union expenses."
In its early days, the American Civil Liberties Union (ACLU) viewed free speech as a tool of social justice, suited to particular purposes under particular conditions," wrote Weinrib, calling on the modern organization to rededicate itself to progressive political goals over civil libertarian advocacy.
The ACLU may be close to taking her advice. Last fall, about 200 of the organization's staff members signed a letter objecting to the groups' "rigid stance" on the First Amendment. The letter was characterized by former ACLU board member Michael Meyers as "a repudiation of free-speech principles."
Huh. With a president who openly chafes at criticism and suggests media naysayers should be punished with the force of law, now seems like a perfect time for opponents to rally around unfettered debate and the First Amendment. Instead, lefty academics and activists are lining up to agree with Trump that a free press and individual rights to freedom of speech, belief, and association are indeed overrated overall.
Thankfully, Trump, Seidman, Weinrib, and the ACLU dissidents face an uphill battle. Trump and his administration are beset by critics because the courts have repeatedly upheld an expansive right to say unkind things about government officials. Seidman and Weinrib have turned up their noses at free speech protections because they're unhappy with the wide-spread empowerment court decisions have handed to advocates of all views.
But the momentum for preserving expansive free speech rights depends on a culture that supports such liberty, and on the appointment of judges willing to make pro-liberty decisions. If that culture erodes and those judges' ranks grow thin, all bets are off. And there is evidence that support for free speech may be on the ropes.
A majority—53 percent—of Republicans agree with the president that people who burn the American flag should be stripped of their U.S. citizenship, according to a 2017 Cato Institute survey. Forty-seven percent of them favored a ban on new mosques. Meanwhile, a majority—52 percent—of Democrats supported outlawing "hate speech," however that's defined.
The numbers are more disturbing for college campuses, which have played host to well-publicized attacks on controversial speakers and attempts to shut down discussion. A recent Gallup/Knight Foundation survey found that 61 percent of students—up from 54 percent in the prior survey—"strongly agree or agree that the climate on their campus prevents some people from saying things they believe because others might find them offensive." And, the summary notes, "barely a majority think handing out literature on controversial issues is 'always acceptable.'"
Americans, by and large, seem to favor free speech in the abstract, but to have a large laundry list of exceptions they'd like to make for speech they find unpleasant or offensive.
That intolerance has pretty clearly become a dominant theme at colleges, where the likes of Seidman and Weinrib teach that free speech is overrated and important primarily as a tool to be reserved for the right ideas. Now their students will emerge from that environment into a larger world where a sitting president of an entirely different political perspective shares that disdain for open debate.