When President Trump refused to unequivocally condemn the white supremacists, declaring instead that “very fine people” populated both groups of demonstrators, he catapulted the episode into another flash point in the nation’s toxic political discourse.
Alongside the growing awareness of extremist groups ranging from white nationalists to Islamic terrorists, the incident triggered a new round of debates over free speech. Reaffirming the current state of the law, some commentators argued that no matter how detrimental they might be, white nationalists were entitled to speak freely as long as they refrained from inciting violence.
But the showdown in Charlottesville also gave new impetus to a small but increasingly popular viewpoint, particularly on college campuses dominated by speech codes, political correctness and protests leading to the cancellation of guest speakers. This view maintained that hate speech directed at vulnerable individuals was undeserving of the First Amendment’s protection.
In two new books, Michael Shermer and Thane Rosenbaum reside in these opposing camps. Largely eschewing the traditional constitutional and philosophical talking points of this debate, their fresh perspectives are a welcome contribution but ultimately fall short of finding a solution. The shortcoming stems not from their ideas, which are well-presented and instructive, but from the inherent difficulty of developing standards to restrict deleterious speech while preserving legitimate — albeit unpopular or provocative — discourse.
This is the free-speech dilemma confounding America.
In “Giving the Devil His Due: Reflections of a Scientific Humanist,” a collection of previously published essays and articles, Shermer skims over the usual constitutional analysis to instead cast free speech as the cornerstone of democracy and knowledge. People communicate “through speech and writing,” he explains. “Thus, free thought and free speech are . . . the ground of all other rights.”
The product of a polymath, Shermer’s book delves into far-flung topics: archaeology, creationism and even Martian colonization. The connection to free speech is tenuous until a pattern emerges. No matter how outlandish or disagreeable a theory may appear to Shermer — he labels Scientology a “cult,” for instance — he is willing to debate its merits, something he did regularly as the publisher of Skeptic, a magazine debunking pseudoscientific claims. Shermer believes that this engagement sharpens his arguments and strengthens his understanding of a subject. “We are all wrong some of the time,” he notes. The only way to overcome this “human fallibility” is to test our propositions “in the marketplace of ideas.” In essence, Shermer applies the tools of the scientific process — the uninhibited exchange of ideas in which hypotheses are persistently tested — to the political arena. To him, free speech “is inviolable for science and politics.”
This is a compelling but imperfect outlook.
Unlike scientists, bigots preaching violence and spewing venom are uninterested in this civil exchange of ideas, a point Rosenbaum reiterates throughout “Saving Free Speech . . . From Itself.” To Rosenbaum, a law professor and public intellectual, hatemongers have twisted a constitutional right formulated to enlighten our political dialogue into a weapon of oppression. “We have repeatedly confused and conflated hostile acts with free speech,” Rosenbaum contends, and “have allowed the First Amendment to provide cover for those who do violence and disguise it as political expression.”
The first of Rosenbaum’s two solutions echoes that of like-minded critics. He calls for narrowly tailored restrictions on those intending “to cause harm — either by threatening and intimidating certain targeted audiences . . . or when speech is being deployed in order to deprive vulnerable groups of their dignity, self-respect, and social status.”
Far more novel is his recommendation to create a private cause of action for the emotional damage caused by hate speech. Since this “psychological harm is equal in intensity to that experienced by the body,” he argues, and since these wounds can now be measured through brain scans, victims should have the right to pursue legal remedies just as they would for physical injuries.
Rosenbaum is keenly aware of the unpopularity of his approach. “Any criticism of the First Amendment is instantly regarded as seditious in our political culture,” he laments, in part because of the Supreme Court’s jurisprudence during the past century. Instead of restraining those who poison our public dialogue, the justices have treated every speaker — “an assortment of white supremacists and Nazi wannabes — like an Edison or Einstein.”
While Shermer’s perspective embodies America’s deeply entrenched enthusiasm for free speech, Rosenbaum’s contrarian approach also offers sensible recommendations.
When they’re read side by side, the free-speech dilemma remains unresolved: To shield people from hate speech, who should determine what speech is constitutionally protected and what standards should be used to make that determination? The last time the Supreme Court undertook a similar task, it ended in futility. In trying to distinguish between obscenity, which could be barred, and artistic speech, which would be safeguarded by the First Amendment, Justice Potter Stewart admitted in exasperation: “I know it when I see it.” After enduring criticism from social conservatives and ridicule for watching pornographic films to resolve a litany of censorship cases involving erotica throughout the 1960s, the justices ultimately abandoned the development of a bright-line test. Any effort to establish standards regulating political speech today seems even more daunting.
Besides the difficulty of establishing workable criteria, history has revealed time and again the temptation to muzzle the voices of those challenging deeply entrenched social norms. Over the years, suffragists, civil rights activists, antiwar protesters and LGBT advocates were censored not just by sexists, racists and bigots but also by well-meaning detractors who bristled at their tactics or found their revolutionary ideas offensive, threatening or unpatriotic.
Perhaps nothing exemplified this dynamic more than McCarthyism. Understandable fears of Soviet aggression after World War II regrettably paved the way for the prosecution of political speech, blacklists of writers and professors, and widespread self-censorship. Or consider Ronald Reagan’s response to student activism at the University of California at Berkeley: “Neither academic freedom nor the preservation of free speech can justify letting malcontents, beatniks, and filthy speech advocates disrupt the academic community,” Reagan declared during his 1966 gubernatorial campaign. Saying these students posed a threat to democracy, he complained that the “administration should have taken the leaders by the scruff of their necks and kicked them out.”
As a stout defender of free speech, Frederick Douglass confronted the same quandary that emerges from reading Shermer and Rosenbaum. “No right was deemed by the fathers of the government more sacred than the right of speech,” Douglass uttered days after a mob shut down an abolitionist meeting in Boston out of fear that the assembly would offend the Southern states then contemplating secession. Noting that a horde of “gentlemen of great distinction” respectful of “law and order” — and not radicals or troublemakers — had obstructed the gathering, he warned that there “can be no right of speech where any man, however lifted up or however humble, however young or however old, is overawed by force, and compelled to suppress his honest sentiments.” Coming at a time with parallels to America’s current discord, his response to the free-speech dilemma resonates today as much as it did on the eve of the Civil War.