Free Speech for Me

Well-meaning Americans are utterly convinced of their moral superiority and rights blindly seek to suppress the rights and freedoms of other fellow Americans, sometimes even believing that it’s all to the latter’s benefit. We should be always vigilant in protecting the freedom of speech guaranteed by the First Amendment; there will never arrive a time when this defense will become unnecessary; the liberties of the minorities will always have to be protected against depredations of majorities. Censorship can come from any point in the political spectrum to ban politically incorrect speech (anything that anyone who is not a white Eurocentric male could conceivably construe as offensive), speech that “oppresses” any recognized minorities or groups (e.g. women), etc. “Censorship is the strongest drive in human nature; sex is a weak second.”

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Justice Robert Jackson, 1943 (quoted on p. 233).This book is a magisterial compendium of bloodcurdling, hair-raising, and spine-chilling stories of censorship, muddled thinking, and zealotry that would put any self-respecting fundamentalist to shame regardless of creed, race, or sex. Mr Hentoff begins simply by quoting LA Times writer Phil Kerby, and since the quote summarizes neatly the content of the book, I will provide it here: “Censorship is the strongest drive in human nature; sex is a weak second.” This is what the book is all about: how well-meaning Americans who are utterly convinced of their moral superiority and rights blindly seek to suppress the rights and freedoms of other fellow Americans, sometimes even believing that it’s all to the latter’s benefit. This book provides no analysis, its purpose is to document the varieties of censorship, not to explain why they happen. Indeed, it would be hard to give an explanation except the one in Mr Kerby’s quote: it’s human nature. This, of course, is vacuous, but it also happens to be useful: if there’s any message one should take from the book, it is this: we should be always vigilant in protecting the freedom of speech guaranteed by the First Amendment; there will never arrive a time when this defense will become unnecessary; the liberties of the minorities will always have to be protected against depredations of majorities.

In a sense, Mr Hentoff gives us a balanced picture: censorship can come from any point in the political spectrum. Lefties want to ban politically incorrect speech (anything that anyone who is not a white Eurocentric male could conceivably construe as offensive), speech that “oppresses” any recognized minorities or groups (e.g. women), etc. Righties want to ban anything that offends their religious sensibilities (anything that hints at being contrary to Christian dogma) or moral prudishness (words that describe things we all do in our bedrooms and often outside them), etc. In all that zeal to protect themselves (and often even the offenders) from the evil consequences of free speech, these people want to trample on the First Amendment, all for the common good.

Examples range from attempts to banish Huckleberry Finn from schools (either because the boy’s behavior went against moral qualities the white establishment wanted to inculcate in their offspring or because the frequent use of the word “nigger” had a debilitating impact on overly impressionable African-Americans) to speech codes on university campuses to the doing in of a comedian with a penchant for calling things by their names. Mr Hentoff’s quick wit and sharp tongue dissect these examples, always coming back to the essential argument in the book: one should never seek to limit the First Amendment on the pain of undermining the liberties of all, including one’s most preferred group. In this, Mr Hentoff is what they call a First Amendment fundamentalist, and here I find myself in good company!

The essence of the argument is simple: the Bill of Rights rests almost entirely on freedom of speech, and without that bill, the American Constitution is nothing more than a clever way to organize government, neither better nor worse than many other ways to do so. Although Mr Hentoff does not go in depth on that, he mentions several times how the crucial concern in the late 18th century was to ensure the rights of the minority against assaults by the majority. Whereas checks and balances are all good because they limit the government’s ability to abuse its powers, the real concern is that local majorities could abuse local minorities, and this is what the Bill of Rights mostly sought to protect against. The combined power of the first and fourth amendments would be the bulwark against societal oppression of people who find themselves in the minority on some important issue. Even though it’s not very systematic, Mr Hentoff traces how the Supreme Court has given an ever more expansive interpretation of the First Amendment, perhaps in recognition of its fundamental importance for the functioning of this democracy.

Mr Hentoff argues that Americans do not really understand freedom of speech. They are content to allow for diverse opinions as long as they are harmless, but many seem to see no problem in suppressing speech that may injure the feelings or offend some people. Mr Hentoff, for example, supported ACLU’s defense of the American Nazi Party’s right to march in Skokie (Illinois) even though this town was majority Jewish, many of whom were Holocaust survivors. This was the incident that cost the ACLU about a fifth of its membership, presumably mostly comprising liberals dedicated to liberty (or, as it turned out, to some limited notion of it). It is not hard to imagine why many (most?) Americans would be opposed to granting the Nazis their right to free speech. Many (most?) perhaps feel that because a majority thinks it’s wrong to give them that right, then they should be deprived of it. Mr Hentoff convincingly (and repeatedly) lays bare the problems with that logic.

There are several interrelated questions here. First, should speech that offends someone be banned? Second, should speech that risks provoking violence be banned? Third, should speech by someone who, if successful, would ban free speech be banned? Fourth, if a majority finds such speech offensive/potentially harmful, should it be banned? I have to say that I was not sure how I would respond to some of these questions, mostly for two reasons: although I felt strongly that speech should not be banned on any of these grounds, I was not sure how to justify it. This book helps a lot.

For example, it was easy to answer the first question: nobody has the right not to be offended. Yes, I know that many students forget that. Yes, I know that many university administrators forget that. But if speech were inoffensive, then it would need no protection in the first place. It is precisely this speech that is in dire need of the First Amendment I am sure that saying that whites and blacks should be equal under the law offended a great majority several hundred years ago, but I do not believe anyone today would argue that it would have been correct to suppress that speech because of that! But, one might say, this is very different: we all know that racist speech is bad, so what’s wrong with making it verboten? Leaving aside that thorny issue that “we all know” something is a poor argument for accepting an idea (most people believed the earth was flat too), we are now exposing ourselves to someone dictating what is right and good, and what is not. Once we go down that road, we inevitably end with totalitarianism, with the rights of minorities trampled, and perhaps even their lives forfeit. In other words, the consequences of limiting speech because someone finds it bad are worse than the consequences of letting people exercise their rights to it: after call, if we all agree that racism is bad, then what possible horrible consequences can such speech have? It will be laughed at, denounced, and ignored. What sort of damage can it do?

Well, one might say, perhaps it can influence people and turn them into racists or perhaps it will harden existing racists making them even firmer believers in their idiotic credo. Hmmm… if you suppress speech, you drive it underground, where it can fester without the benefit of being exposed to counter-arguments. In other words, by depriving racists of their right to speak out, you are depriving anti-racists from showing why racism is wrong. You will never convert racists if you do not make them see why they are wrong, and how can you do that if you do not let them tell you what they think so you can rebut it? This now also means that people who favor censorship would seem to think that the only way to combat racism is by suppressing racist speech. That is, unless we shut up the racists, these poor helpless defenseless listeners will be exposed to that idea and they will all start burning crosses in some African-American’s lawn. This infantilizes listeners (people are not that stupid), but, perhaps more importantly, it sends the wrong message: it basically says that we are afraid of racist arguments, we cannot rebut them, we cannot provide compelling counter-arguments, so we cannot rely on the strength of our case, our idea is so weak that the only way to ensure its survival is to suppress its rival (p. 177). I am sorry, but I think than anti-racism can do much better than that. I think we can pulverize any racist argument openly and immediately, and I think this would do the cause much more good than driving racism underground. So, at the risk of offending people, I’d support the racist’s right to speak any day, as long as people can also be exposed to the counter-view. In the words of Justice William Douglass (quoted on p. 181), “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech… may have profound unsettling effects as it presses for acceptance of an idea.”

But what if this speech causes violence? Mr Hentoff gives several examples of such instances (the boycott of the South African rugby team comes to mind along with the Skokie case), in which people tried to use the “heckler’s veto.” The argument goes something like this: we all respect the rights to free speech of that obnoxious group but the authorities cannot guarantee the safety of its members because good Americans may be so incited by the content of that speech that they may turn to violence. This was one of the arguments that bothered me until I read about the Supreme Court decision that such a veto cannot be exercised. That is, the authorities must provide for the safety of those exercising their free speech rights. This includes arresting good Americans who try to use violence to stop them. In the Skokie case, this would imply that some Holocaust survivors could have been arrested for attempting to violently stop the Nazis from marching through their town. I know that it sounds awful, but this is what it may take to protect the rights of minorities that would ensure that we will never see people stuffed in ovens in this country. As Judge Warren put it, “There exist many situations where, in the short run, it appears advantageous to limit speech to solve pressing social problems such as discriminatory harassment. However, the suppression of free speech, even where the speech’s content appears to have little value and great costs, amounts to governmental thought control” (quoted on p. 182). This, of course, recalls the quote from Justice Jackson at the top of this review.

Ok, but the Nazis want to create a country where minorities would have no rights, certainly not the right to free speech. In other words, our system is protecting the rights of people who want to overthrow the system itself and put something abominable in its place. Does it not make sense that we protect ourselves from that? There are two answers to this, it seems. First, this (again) infantilizes the audience. Do we really think Americans’ moral compass is so fragile that a lot of them would shave their heads and vote for a Nazi regime? An idea can only prevail if a majority comes to believe in it: slavery expired because enough people came to see it as evil despite the attempt (vocal and physical) of others to kill off that idea. While it is true that enough Germans embraced Nazism to make it the order of the day, I very much doubt that the idea can triumph against overwhelming odds here in the US. But what if one could imagine it doing so? Should we not suppress it now while we still can? As they say, the Constitution is not a suicide pact. Mr Hentoff answers (p. 253) that “nowhere in the First Amendment does it say that freedom of speech is limited only to ideas and symbols that further freedom, dignity, and nonviolence.” He then goes on to quote Justice Oliver Wendell Holmes who wrote in his 1925 dissent that “If in the long run the beliefs expressed… are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way” (p. 254). In other words, once you start banning ideas because they risk ending free speech in the long run, you have made the first step toward that end already.

Ok, so it’s a risk we probably have to accept. But what if the majority agrees that the speech is harmful? This was among the most sticking points for me, largely because I was unfamiliar with the thought behind freedom of speech. I was delighted to read Justice Jackson’s 1943 statement (quoted on p. 231) on the subject: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” It was not until reading this that the full implications of all the preceding logic came into focus. For someone with a strong egalitarian bent, such a thing does not come easy, but I have to grant the necessity of such a protection. Not everything can or should be submitted to a vote.

Where does this all leave us? I have to admit that although I was a rather firm believer in the supremacy of the First Amendment, Mr Hentoff’s book made me ponder some of the uncomfortable implications such a position entails. I realized that I had allowed a sense of moral assurance, common to all the fine people who are the subjects to this unflattering narrative, to get the better of me on occasion. Surely, no sane person could honestly to subscribe to that (pick your favorite “obviously” nonsensical belief). Surely, it is in their best interest to be forced to realize the error of their ways. Surely, there’s nothing wrong with opening their eyes… But I was dead wrong. There is nothing wrong with trying to show someone the error of his ways, but there is plenty wrong with coercing him into uniformity.

In sum, Mr Hentoff is a fine and very persuasive writer. This book is enormously helpful in placing “obvious” things into perspective by forcing readers to go through the unpalatable consequences of the most well-intentioned suppression of free speech. The narrative is rather brisk, and Mr Hentoff’s language sparkles with biting sarcasm without any sort of meanness, a difficult thing to achieve when one is so close to the subject matter. The book is quite even-handed even if most examples seem to be about ideologues from the far Left suppressing people with more conservative views. Still, Mr Hentoff’s main message is abundantly clear: people lust to censor speech they disagree with, and this lust knows no political allegiance. Defense requires constant vigilance, including upsetting the would-be censors, often the very people who will probably find themselves eventually on the short end of the stick if their own policies get fully implemented.

The only thing I would probably change in this book is the organization: sometimes it’s not clear how the different parts relate to each other, and given the plethora of cases, it is quite difficult to keep track of the line of logic Mr Hentoff pursues at any given time. Still, an excellent read. Check out the hilarious case at the New York University law school when future lawyers refused to participate in moot court (hypothetical trial) involving a parent disputing his ex-wife’s ability to look after their child on the grounds that she is a lesbian and is living with another lesbian (pp. 202-218). The letter by Anthony Amsterdam, NYU law professor, is one of the most to-the-point incisive critiques of this “sensitivity” and its consequences.

Nat Hentoff

http://www.gotterdammerung.org/books/reviews/f/free-speech-for-me-but-not-for-thee.html