The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


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.


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.