Free Speech Under Fire

A new book tries and fails to make a case against freedom of expression.

The Case Against Free Speech: The First Amendment, Fascism, and the Future of Dissent, by P.E. Moskowitz, Bold Type Books, 272 pages, $28

When a book entitled The Case Against Free Speech opens with the claim that "This book is not anti-free-speech. It is anti-the-concept-of-free-speech," you know you're in for some verbal gymnastics. When it offers a howler like "There is relatively little literature and philosophy on free speech," you prepare for some pratfalls.

P.E. Moskowitz (who prefers to go by they, them, and their pronouns) is unburdened by an educated understanding of free speech debates or an effort to present a new perspective on them. Moskowitz relies on the familiar illiberal view that free speech is mainly an instrument of the powerful right-wing few, irrelevant at best to the marginalized and powerless many.

Wealth and social standing do, of course, facilitate the meaningful exercise of many rights, including the right to counsel, the right to petition the government, and the right to enjoy reproductive health care, not just the right to speak. And yes, the government often successfully represses these and other rights, which are, after all, designed to restrict its power.

But the unequal ability to exercise rights robustly is hardly an argument against them. We do not—or should not—disdain the Fifth and Sixth Amendments because rich people can better avail themselves of the due process and fair trial rights that poor people are often effectively denied. Instead, civil libertarians strive to secure equal application of rights, confronting injustices that Moskowitz and other woke progressives are not the first people to discover.

Moskowitz is confused about the implications of that discovery, unsure whether racism and other inequities mean we should actively oppose freedom of speech or simply dismiss its relevance to all but a privileged few. Moskowitz opposes official bans on hate speech, including speech by neo-Nazis, seemingly understanding that such restrictions would be used against leftists. But they also criticize the American Civil Liberties Union for helping white supremacists obtain a permit to rally in Charlottesville, and they sympathize with suggestions that police shouldn't protect far-right marchers. (I assume Moskowitz supports the police protection regularly extended to gay pride parades.)

The book even has trouble finding "the line" between the rights that enabled the Charlottesville marchers to rally and the murder of Heather Heyer, who one Charlottesville demonstrator deliberately ran down with his car. The lines between speech, action, and violence are merely "political," it argues, as though there's no difference between a swastika and a physical assault. If the U.S. banned chants like "Jews will not replace us," Moskowitz claims, Heyer's murderer would have had "no opportunity…to strike."

In Moskowitz's wavering opinion, free speech is either irrelevant or dangerous, and restricting hate speech is either a strategic mistake that will facilitate repression of left-wing dissent or a life-saving necessity. This book has all the intellectual coherence of a Trump tweetstorm.

The Case Against Free Speech is unlikely to persuade the unconverted. Consider its attack on the Foundation for Individual Rights in Education (FIRE), a nonpartisan organization devoted to protecting speech and due process rights on college campuses. (Full disclosure: I advise and support the group.) What are FIRE's sins? Its co-founders, Alan Charles Kors and Harvey Silverglate, have "railed against political correctness." Kors has contributed to Reason, and FIRE attracts right-of-center funders. Moskowitz also ominously (and incorrectly) claims that "ultra-conservatives George Will and T. Kenneth Cribb" have served on the organization's Board of Directors. And while grudgingly acknowledging that FIRE is not "purely a conservative front group," Moskowitz is suspicious of its president, Greg Lukianoff, because he talks about the "marketplace of ideas."

The book associates that phrase with the Koch brothers and "free market thinking." But in fact, the argument that the First Amendment protects the "free trade in ideas" derives from a famous 1919 dissent by Oliver Wendell Holmes in the case Abrams v. U.S. criticizing the Sedition Act convictions of five Russian-born immigrants for distributing anti-government leaflets.

Readers will not emerge from this book well-informed. With little regard for law and history, it asserts that "the First Amendment has rarely been enforced to protect speech." Moskowitz tries substantiating this jaw-dropping factoid with a selective look at First Amendment cases, stressing the successful prosecutions of leftists for political speech during 20th century red scares. They then note that when the Supreme Court finally recognized First Amendment protections for unpopular advocacy, distinguishing it from incitement to violence, it did so in a case, 1969's Brandenburg v. Ohio, involving a speech by a Ku Klux Klan leader. Moskowitz imagines that this ruling was simply "an attempt to defend the rights of virulent racists."

In fact, Brandenburg reflected social changes, political upheaval, and the development of First Amendment law after decades of hard-fought cases, not any particular sympathy for the Klan. Other cases from the Brandenburg era explicitly protected the rights of left-wing protesters. In Tinker v. Des Moines (1969), the Court recognized students' right to wear black armbands to school to protest the Vietnam War. Street v. New York (1969) struck down the conviction of a World War II veteran who publicly burned his flag to protest the shooting of civil rights activist James Meredith. Shuttlesworth v. City of Birmingham (1969) struck down the conviction of a minister who led a civil rights march on a public street without a permit. NAACP v. Claiborne Hardware (1982) held that a nonviolent civil rights boycott of local merchants was protected by the First Amendment and that the boycotters could not be held liable for damages, reversing a ruling by the Mississippi Supreme Court.

And no case for or against free speech should omit the Court's earlier ruling in West Virginia v. Barnette (1943). An eloquent defense of First Amendment freedoms, it recognized the fundamental right not to salute the flag, a right I exercised with impunity in the seventh grade.

This book doesn't just ignore particular cases that undermine its narrative. It ignores the general importance of the First Amendment and broader concepts of free speech to modern civil rights movements. Individuals who don't own media companies make themselves heard, sometimes to great effect, by speaking collectively.

I'm not suggesting that the arc of free speech law consistently bends toward liberty. Civil libertarians are well aware of our losses, such as the 2010 ruling in Holder v. Humanitarian Law Project. (There the Supreme Court retreated from defending political advocacy rights, holding that criminal bans on providing "material support" to terrorists could be applied to human rights activists offering suspect groups advice on peaceful conflict resolution.) We don't need Moskowitz to remind us of the threats to speech and privacy posed by new technologies or by the war on terror. Nor do we need this book's derivative discussions of McCarthyism, FBI surveillance of civil rights and anti-war demonstrators, or the harsh crackdowns on protests today. We know there was never a golden age of liberty. But Moskowitz doesn't know or won't acknowledge that expansions of speech rights over the last century are not mere illusions fostered by the right to lull us into complacency.

This view of the First Amendment as a failure and free speech as an empty promise is common within campus censorship movements of the left. It underlies Moskowitz's claim that there is no free speech crisis in colleges—just a perception of crisis "carefully manufactured" by "right wing organizations…funded by the usual suspects of right wingers like the Koch brothers." Or if there is a crisis, that it's the assault on leftist and anti-Zionist speakers by conservative activists who have managed to present themselves as censorship's "true victims."

There is indeed no shortage of bad faith among conservatives who champion free speech only when speech they like is threatened. And campus censors do sometimes target progressives, along with apolitical speakers who criticize or discomfit administrators. But if you've followed the rise of language phobias on campus and the increasingly aggressive campaigns to exile unwelcome ideas, you know that for three decades a vocal group of progressives has equated allegedly hateful speech with violent action and framed censorship as essential to equal rights.

Conflating speech and violence justifies employing violence in response to speech. The Case Against Free Speech concludes, predictably, that forging "meaningful" speech rights requires "illegal actions, and perhaps violence." Moskowitz is free to say this because advocacy of violence is protected by the "meaningless" First Amendment. Ironies and idiocies abound.