America's Losing Its Free Speech Consensus
Americans shouldn't have to fight to the death to defend their foes' right to speak, but they should at least stop trying to censor, shame, shun and destroy each other.
Whenever issues of free speech would arise, Americans would often quote Voltaire and say, "I disagree with what you say, but I will defend to the death your right to say it." Voltaire didn't actually say it—and only a fool would count on anyone to defend them, let alone to the death. Yet it was heartening that most people felt the need to champion free-speech absolutism.
These days, another free-speech cliché is in vogue: "You don't have the right to yell 'fire' in a crowded movie theater," they retort. Those who use this phrase are arguing that some types of speech are so hateful, offensive, misinformed, and dangerous that it shouldn't be allowed. Instead of fighting for your right to say things, these folks might have you silenced, jailed, fired, or shunned.
In a Christian Science Monitor article in 2021, writer Harry Bruinius cited those age-old aphorisms as he reflected on recent attacks on that old free-speech consensus: Both sides in their own ways have begun to emphasize why government authorities, private businesses, or college administrators should more tightly regulate, if not suppress, certain kinds of public speech."
The latest appalling speech news comes from Florida. One Republican legislator introduced Senate Bill 1316, which would require bloggers to register with the state government. Such journalistic registration requirements are chilling. They almost certainly violate the First Amendment, but it speaks volumes that any lawmaker would even propose such a thing.
Fortunately, the leading GOP presidential contender, Florida Gov. Ron DeSantis, quickly denounced the measure. Nevertheless, DeSantis has his own free-speech issues, as he has signed or proposed bans on teaching LGBTQ and race-related issues. He also signed a law that makes it easier for people to challenge books found in classroom libraries.
As a CNN column noted, DeSantis "also sought to shut down a drag show, citing a 1947 legal precedent banning 'men impersonating women'" and "has proposed to challenge the landmark Supreme Court decision on libel, narrowing the scope of press freedom."
The classroom- and library-related restrictions are problematic, but at least deal with public agencies. It seems like a bizarre moral panic to ban people from participating in voluntary drag shows. Conservatives are pushing back against left-wing campus speech codes and "cancel culture"—with their own types of speech codes and canceling criteria.
Cancel culture may be hard to define, but even The New York Times argues that, "many on the left refuse to acknowledge that cancel culture exists at all, believing that those who complain about it are offering cover for bigots." I don't typically applaud the Times, but agree that, "Americans are losing hold of a fundamental right…to speak their minds…without fear of being shamed or shunned."
Frustrated at perceived bias within social-media companies, many Republicans have championed government interventions ranging from turning those private firms into regulated monopolies to removing their protections from defamation lawsuits. They claim these proposals will promote free speech—but they ultimately make government regulators the arbiter of speech, or eliminate the rights of private companies to set up their own moderating and publishing rules.
Progressives mostly have used their social power—and arm-twisting from friendly federal regulators—to censor so-called COVID misinformation and cancel the social-media accounts of many conservatives. They also gladly use the legislative process to limit private speech-related decisions.
For instance, the U.S. Supreme Court struck down—on First Amendment grounds—California's law forcing crisis-pregnancy centers to provide abortion information even though they exist to provide alternatives to abortion. A new bill uses false-advertising laws to achieve the same goal. "We are outlawing misinformation," California state Rep. Rebecca Bauer-Kahan (D–Orinda), recently told The Sacramento Bee. Whatever one's views on abortion, we should agree it is not government's place to police the "truth."
Free-speech attacks stem from the nation's culture wars, by which warring factions seek to own the other side rather than uphold a neutral legal and political order. One prominent conservative law professor, Adrian Vermeule of Harvard, even argues we should reject "the libertarian assumptions central to free-speech law and free-speech ideology—that government is forbidden to judge the quality and moral worth of public speech."
Obviously, the First Amendment only applies to government efforts to restrict speech. Individuals and private companies (including social media platforms) have the right to set their own terms and conditions. You can say what you choose in your own publication, but this newspaper has no duty to publish it. You might not like the result, but it beats a world where the government judges the "quality and moral worth" of what we say.
Legalities aside, our nation would benefit from a renewed cultural commitment toward embracing a freewheeling public dialogue. I don't expect Americans to fight to the death to defend their foes' right to speak, but they should at least stop trying to censor, shame, shun and destroy each other.
This column was first published in The Orange County Register.