Is the Future of Freedom of Speech in Jeopardy?

Constitutional protection of freedom of speech depends on cultural foundations that are being eroded, left and right.

|The Volokh Conspiracy |

Whatever the written Constitution says, whatever precedent says, constitutional rights mean little if there is no public or (especially) elite support behind them. Judges are not immune from the intellectual headwinds nor from their sense of public support for their rulings, and a right that lacks support in public and elite opinion is not worth the paper its written on.

Our president has done his part to undermine free speech norms with his consistent (though so far empty) threats to retaliate against the hostile mainstream media. The threats themselves do not violate the Constitution, but they do undermine support for freedom of the press in his base.

Meanwhile over at the New York Times, a pretty good bellwether of mainstream elite progressive opinion, James Bennett was forced to resign for publishing an op-ed by a sitting Senator, taking the position supported by 58% of the American public that the president should consider using the military restore order to cities plagued by riots to "disperse, detain and ultimately deter lawbreakers," because it offended members of the Times' staff.

Katie Kingsbury, the new acting op-ed editors, has told staff, "Anyone who sees any piece of Opinion journalism, headlines,social posts, photos—you name it—that gives you the slightest pause, please call or text me immediately."

Of course the Times is a private entity and can have whatever op-ed policies it chooses. But the notion that the Times has to be ever on the alert about publishing anything in its *Opinion* pages that may offend even the most sensitive member of its staff, something that Times editors would have laughed at a decade ago, suggests a very troubling decline in the *attitudes* needed to support freedom of speech in the constitutional context.

If these trends continue on left and right, in the long-run the freedom of speech under the First Amendment is in big trouble.

UPDATE: I don't whether to laugh or cry, but the Times' story on the Bennett resignation says, "the Op-Ed, by Senator Tom Cotton, Republican of Arkansas, had 'Send In the Troops' as its headline."

Now, you'd think the link would go to the op-ed, so that interested readers could see what all the fuss is about.

Nope. It goes to an article discussing staffers' complaints about the op-ed. Apparently, New York Times' writers and editors now fear that merely linking to the offending op-ed will get them punished.

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  1. Artie Ray Lee Wayne Jim-Bob Kirkland

    Mostly making fun of conservatives | Sometimes contrarian | Often libertarian | Always independent | Banned by the Volokh Conspiracy Board Of Censors Wednesday, Oct. 6, 2010, 6:02 p.m.

    1. Odd, it looks like you’re still here.

      1. The proprietor said I could stay but Artie had to go.

        Viewpoint-driven censorship. And not the only example.

        Bad look for a blog that claims to champion free expression.

        1. Aww, your feelings must be hurt that a faker like you isn’t allowed to be even more fake.

  2. He’s threatening free speech by demonstrating that Presidents have it, too?

    Look, you’re equating empty blather on Trump’s part with actual censorious actions by the left. So, no, realistically free speech is being eroded on the left and on the left. Until the President actually attempts to censor somebody, all the actual censorship is coming from the left.

    The best clue to that is that the ACLU doesn’t mind censorship anymore. If they still thought there was any threat of censorship from the right they’d be keeping up the pretense of caring about free speech.

    1. ^^^ This.

    2. The President of the United States saying ‘we should tighten libel laws,’ ‘we should get the FCC to look into the outlets that say mean things about me,’ ‘people who speak out peacefully in ways I think disrespect the flag should be fired,’ etc. ,= a single media outlet firing an employee who published something he didn’t read…and it’s *not even whataboutism* it’s ‘hey, the first instances are just, you know, ‘bluster!’?

      1. Good point. I am reminded that Trump tried to punish the Washington Post by causing problems with Amazon’s relationship with the US Postal Service. That backfired when Amazon created its own fleet of delivery vehicles. Then there is the “enemy of the people” nonsense.

        1. Amazon is still costing the US taxpayer $2 for every package it delivers.

          1. Y’all aren’t going to believe this, but what Dr. Ed said here is not true.

          2. I have heard something similar, but can you cite a reputable source?

    3. “Until the President actually attempts to censor somebody, all the actual censorship is coming from the left.”

      “Get that son of a bitch off the field right now, he’s fired. He’s fired!”

      The question is, how did you miss this?

      1. Was that censorship?

        1. If private org the NYT bowing to public pressure is censorship, than private sportsball org bowing to official pressure sure as heck is.

        2. (BTW I think neither is)

          1. Me neither…

    4. Brett,

      It is just on the left?

      There is an Executive Order regarding bias in social media. I thought conservatives hated the Fairness Doctrine.

      There is also all of the anecdotal stories coming out of employees at conservative news outlets that they are not permitting articles on anything deemed anti-conservative: https://www.cnn.com/2020/03/06/media/washington-examiner-fox-news/index.html

      There are the lawsuits against op-eds in the Washington Post and New York Times by the Trump campaign. Perhaps Obama should have sued every person that posted or wrote about the bullshit non-citizen stuff about him. But Obama is not a delicate flower.

      1. The executive order regarding bias in social media doesn’t censor. It’s actually a reaction to censorship by social media, and merely questions whether they’re actually complying with the terms of the law that grants them special protection from civil liability, and proposes an inquiry into whether moderation in violation of TOS qualifies as a deceptive business practice.

        But Twitter, for example, could just change their TOS to state that they discriminate on the basis of political opinion in their moderation, and be honest when they do so, and they’d be clear on the deceptive business practice front.

        On the other front, they’d be no more liable than any (other) publisher.

      2. (psst…conservatives have been cancel culturing each other since at least Buckley)

    5. “Until the President actually attempts to censor somebody, all the actual censorship is coming from the left”

      Do you consider Prof. Volokh a lefty?

  3. “Is the Future of Freedom of Speech in Jeopardy?”
    Yep.

    Just like we second amendment right wing gun nuts have been saying for decades; once they get through with the second, they will go after the first. They are now so confident they are overlapping the efforts.

    Welcome to the revolution.

  4. The NYT is dead.

  5. What the NYT chooses to publish as an Op-Ed is an editorial decision.

    There is nothing wrong with criticizing that decision.

    1. “I disapprove of what you say, but I will defend to the death your right to say it” and “I disapprove of what you way, and will do everything in my power to legally silence you, while working assiduously to change the law.” have somewhat different implications for the future of free speech, especially when mainstream publishers start taking that latter stance.

      1. The go-to on this is Holocaust denial. The NYT has no obligation to publish such a point of view, and I have no problem with their being criticized for their decision if the do so.

        Now, I myself think the Cotton op-ed was a good thing to publish, as it let us know what an authoritarian psycho we have in the US Senate. But I have no problem with people saying it was bad and the NYT should feel bad; that’s speech to.

        1. The NYT also has no obligation to own up to it’s own Holocaust denial that led to the deaths of many Jews during WWII.

          Or to own up to it’s endorsement of the Russian regime engaging in mass murder.

          Or to own up to it’s endorsement of violent actions by the Chinese government.

          We all have the right to criticize the NYT for actually supporting Nazis, Fascists, and Communists, and should continue to do so.

          1. Uh…yeah?
            You sound quite a bit like someone from the leftist boards I lurk on.

      2. Brett, I’m glad to know that if you stop me from speaking at your next private shinding you are silencing me with ominous implications for the future of free speech. I know you’re a freedom warrior and wouldn’t, so send me your address and event details so I can show up and we can prove free speech values once and for all 😉

      3. “I disapprove of what you way, and will do everything in my power to legally silence you, while working assiduously to change the law.”

        WTF are you talking about?

        The NYT is not “silencing” Cotton. He has roughly 3 billion places he can push his views.

        Stop the paranoia, and note that Bennet’s problem, in part, is that he didn’t even read the damn article before he published it. Kind of sloppy work, isn’t it?

  6. I’m unable to access the comments for the Antifa as terrorist organization post.

    1. Not just you.

    2. Sarcastro, Brett and Dr. Ed are locked out of the Antifa comments. So 66.67% of the censored commenters are conservatives.

      Tell me again that Reason hasn’t caved to leftists.

  7. I agree with Professor Bernstein that both the right and the left are assaulting it.

  8. David correctly notes that the NYT is “a pretty good bellwether of mainstream elite progressive opinion.” However, he reveals his own bias by suggesting that the elite progressive opinion is an influencer of public opinion – at best, it is a toady follower …

  9. If you’re going to talk about open assaults on the First Amendment, it seems like the police openly targeting media for assault (see, e.g., https://www.theguardian.com/media/2020/jun/05/im-getting-shot-attacks-on-journalists-surge-in-us-protests) during the protests would be at least as worthy of discussion as a private newspaper’s internal editorial discussions.

  10. If 58% of Americans support Tom Cotton’s position, then the pundits are all probably in for a rude awakening come November, no?

  11. The left is censoring speech.

    The right is complaining about censorship.

    Clearly, both sides are to blame.

    1. Remember that Professor Bernstein works in academia, where he has to look over his shoulder constantly lest he be cancelled by the freedom-of-speech and freedom-of-education supporters.

      Not that I’m claiming he has a conscious bias, but peer pressure can be insidious.

    2. What speech did the left censor, here?

      1. There is at least one example of attempted censorship by UCLA of a Professor’s opinion on yesterday’s blog: https://reason.com/2020/06/07/ucla-investigating-poli-sci-professor-for-reading-mlks-letter-from-birmingham-jail-showing-video-about-lynching/

  12. consistent (though so far empty) threats to retaliate against the hostile mainstream media.

    Suspending WH press privileges is not an empty threat.

    Using tear gas, or whatever you want to call it, and forces in unmarked uniforms to disperse protestors, is not an empty threat.

    Calling on his fans to beat up opponents at a rally is not an empty threat.

    And regardless, threats coming from the President are never really “empty,” since he has the ability to make them good, and they certainly have some effect, whether acted on or not.

    Do not forget the words of chess Grandmaster author Aron Nimzowitsch: “The threat is stronger than the execution.”

    1. Aron Nimzowitsch: “The threat is stronger than the execution.”

      Remember that axiom the next time a Democrats resides at 1600 Penn. Ave. I remember lots of “won’t someone rid me of this meddlesome priest” type things emanating from there in the past, and not just from the Trump Administration.

  13. The NYT’s concern about op-eds that “trigger” some of its staff ultimately comes from a broad reading of the “workplace harassment” rule in federal labor law. It wouldn’t surprise me if the Times is reading that law as much broader than it actually is; but it also wouldn’t surprise me if Obama-era precedents have led to that law becoming much broader than it was when interpreted as the writers of the law intended.

    This speech-chilling effect of labor law has been going on for years now (beginning with the “sexual harassment” case law) and may be the root of all these attacks on free speech, including at colleges. I would like to see all of it rolled back and freed in a way that will stick.

  14. This represents confirmation bias – something that all of us do from time to time. That’s not to attack Professor Bernstein who makes some very good points. However, with respect to the New York Times, he has indulged in selective observation.

    I would encourage people to read the Times article in full ( https://www.nytimes.com/2020/06/07/business/media/james-bennet-resigns-nytimes-op-ed.html ). The op-ed in question, written by Tom Cotton, was not edited properly. It contains a number of factual errors. Mr. Bennet has had problems in the past as well including that anti-Semitic cartoon which I found personally offensive.

    Moreover, Professor Bernstein has quoted Katie Kingsbury in a way that suggests she is a snowflake. The quote is accurate but out of context. She is soliciting criticism and that is a good thing, particularly for someone assuming a new position.

    1. I agree with the last part. There’s nothing wrong with soliciting criticism and dissent from staffers before publishing an op-ed, and the right wing freakout about that is ridiculous.

      But I do think what happened here wasn’t great, and I definitely worry about one of the tactics of the dissenters here, which was to all tweet in unison that this “endangered” black Times staffers. There was, of course, no evidence of such endangerment (had there been such evidence, it should have been taken seriously by the NYT, of course). It was just a slogan they adopted because as we have seen from the campus PC debates, when people say they are being “harmed”, nobody is supposed to ask for proof, data, quantification, or to otherwise question the claim.

      I don’t have a problem with forcing Bennet out (he didn’t even read the op-ed! really?) or appending an Editor’s Note to the op-ed. But I have a big problem with journalists coordinating to circulate a false claim of “harm” to force a personnel decision.

      1. I pretty much agree with that.

        Note also that there were issues raised about unsubstantiated factual assertions in the piece.

    2. The Times’ editor’s note does help its case. They write: “cadres of left-wing radicals like antifa”; in fact, those allegations have not been substantiated and have been widely questioned.

      The question of whether antifa itself has had substantial involvement has been widely questioned. But I don’t think there is any doubt that left-wing radical “like,” i.e., akin to, antifa have been involved. So at most, this was poorly worded, not inaccurate.

      1. “The assertion that police officers ‘bore the brunt’ of the violence is an overstatement that should have been challenged.” “Bore the brunt” is not the sort of precise statement that could be said to be true or false. There has been a fair amount of violence against police, it’s arguably an overstatement, I grant. But if every arguable overstatement on the op-ed page was disqualifying, there would barely be an op-ed page.

      2. “Like” is not being used as akin to in that sentence. That construction is exemplary.

        1. I would say the closest definition is “including” or “such as”.

  15. Since the left now has the powerbase of Big Tech, federal bureaucracy, and big city governments it no longer cares about free speech. They might finally make a strong push for European “hate speech” style laws.

  16. an op-ed by a sitting Senator, taking the position supported by 58% of the American public that the president should consider using the military restore order to cities plagued by riots to “disperse, detain and ultimately deter lawbreakers,”

    Read more carefully, David.

    This is not an accurate description of the public attitude towards Cotton’s proposal. He writes that,

    “According to a recent poll, 58 percent of registered voters, including nearly half of Democrats and 37 percent of African-Americans, would support cities’ calling in the military to “address protests and demonstrations” that are in “response to the death of George Floyd.”

    Instead, Cotton wants

    the president to employ the military “or any other means” in “cases of insurrection, or obstruction to the laws.”

    No mention of requests from mayors or governors. Indeed, he refers to those leaders he disagrees with as “delusional,” and, on Twitter, this asshole calls for “No quarter for insurrectionists, anarchists, rioters, and looters.”

    Really? No quarter?

    1. He also referred only to lawbreakers, which makes his op-ed actually narrower than the poll question you allude to.

      1. Narrower on that dimension, but broader on the question of whether the President should send in troops whether the mayor wants them or not.

        1. As a last resort, yes = the question of whether the President should send in troops whether the mayor wants them or not

          Secretary Esper was correct, IMO. We were not close to a last resort.

  17. When exactly in recorded history has the future of freedom of speech NOT been in jeopardy?

  18. “…freedom of speech … is being eroded on the left and right…”

    Oh please, almost all of it is coming from the left these days. Speech suppression is mainstream on the left.

  19. “It goes to an article discussing staffers’ complaints about the op-ed.”

    Because in their mind the staff complaints are more important than the article which caused the complaints.

  20. There is no equivalence between conservatives and liberals on free speech.

    All the calls to stifle free speech come from leftists. We can use the shining example of unfriending on social media. Along with all my other conservative friends, we’ve never unfriended anyone. And all of us, each and every one, have been unfriended by liberals. I love to read their stuff. Point out how they all use exactly the same wording, make exactly the same points- and the lies contained therein. And as they attack Trump for violating the Constitution- none of them, not a one, can actually give an example. On the other hand, for Obama- There’s DACA…. But, it was for a good reason, so that’s okay if it violates the Constitution… But rescinding that unconstitutional executive order with another one- obviously unlawful, because of the sacred constitutional principle of Orange Man Bad. The courts said so.

    I’ve seen both these posted by the violent peaceful liberal protesters as of late- “Silence is violence” and “Speech is violence”. That pretty much covers it. Ingsoc, Orwellian Newspeak, is truly the language of liberals today.

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