The Eternally Radical Idea

Free Speech is bigger than the First Amendment: Part 4 of answers to bad arguments against free speech from Nadine Strossen

October 14, 2021

In May, I published a list of “Answers to 12 Bad Anti-Free Speech Arguments” with our friends over at Areo. The great Nadine Strossen — former president of the ACLU from 1991 to 2008, and one of the greatest experts on freedom of speech alive today — saw the series and offered to provide her own answers to some important misconceptions about freedom of speech. My answers, when applicable, appear below hers.

Earlier in the series:


Assertion: The right to free speech means the government can’t arrest you for what you say; it still leaves other people free to kick you out.

Nadine Strossen: It is true that (with some limited exceptions) constitutional protection for free speech only shields you from government censorship. Even that constitutional protection, however, extends far beyond government arrests. The Supreme Court sensibly has enforced the First Amendment to bar any government action that, as a practical matter, limits or “chills” people’s speech. On this rationale, the Constitution has shielded speech from a vast array of government actions far short of outright arrests. For example, the Court has held that the First Amendment bars government officials from issuing veiled threats that it might prosecute certain expression. As another example, the Court has held that the First Amendment bars government from denying trademark protection to certain controversial terms. The Court also has held that the First Amendment often bars private citizens from suing other citizens for damages based on speech about matters of public concern — because the lawsuits utilize the government court system. 

In short, for practical purposes, the most powerful censors today are not government officials, but rather our fellow citizens.

Moreover, although private sector actors generally may “kick you out” for what you say, if the private sector actors are sufficiently connected to the government, then the First Amendment will protect you against them. To cite an important example, social media companies in general may restrict their users’ expression in any way, ranging from shadow banning particular posts to suspending entire accounts. However, if social media companies restrict particular speech because government officials pressured them to do so, or in collaboration with government officials, then that restriction would violate the First Amendment. This makes sense, because government should not be able to do an end-run around its First Amendment obligations by delegating its dirty work to private actors. 

Even if private sector companies or individuals independently kick you out, without any undue government involvement, that still raises free speech problems. For individuals and society alike, it is important that robust freedom of speech can be exercised in key private sector contexts, such as private educational institutions or workplaces. Yes, some limits can be imposed, consistent with the overarching purposes of such settings. For example, as the Supreme Court has recognized, even public schools may restrict speech that materially disrupts the educational process, so private schools certainly could do likewise. But we should not have to forfeit our free speech rights wholesale as the price of earning an education or a living. Schools and employers should not have unconstrained power to punish students or employees for things they say on their own time, using their own communications devices. 

Public opinion surveys consistently show that people are engaging in massive self-censorship — refraining from even discussing major topics, let alone voicing their candid views — and not for fear of government arrest or any other government action, but rather for fear of negative repercussions from private institutions and from their peers. In short, for practical purposes, the most powerful censors today are not government officials, but rather our fellow citizens. While the First Amendment doesn’t provide a tool to protect against this pervasive private sector speech suppression, we should pursue other measures to do so, including educating our citizenry about the importance of nurturing a vibrant free speech culture to replace the too-prevalent cancel culture.

Greg Lukianoff: No, the popular xkcd cartoon below is wrong. The First Amendment limits what the government can do, but freedom of speech is something much bigger than that.

https://xkcd.com/1357/

This cartoon is often used to dismiss free speech arguments, but it is wrong: it not only confuses First Amendment law with freedom of speech, it doesn’t even get the First Amendment right.

The concept of freedom of speech is a bigger, older and more expansive idea than its particular application in the First Amendment. A belief in the importance of freedom of speech is what inspired the First Amendment; it’s what gave the First Amendment meaning, and what sustains it in the law. But a strong cultural commitment to freedom of speech is what maintains its practice in our institutions — from higher education, to reality TV, to pluralistic democracy itself. Freedom of speech includes small l liberal values that were once expressed in common American idioms like to each his own, everyone’s entitled to their opinion and it’s a free country. These cultural values appear in legal opinions too; as Justice Robert H. Jackson noted in West Virginia State Board of Education v. Barnette, “Compulsory unification of opinion achieves only the unanimity of the graveyard.”

A belief in free speech means you should be slow to label someone as utterly dismissible for their opinions.

While the United States Constitution limits only governmental behavior on its face, its application sometimes requires the government to protect you from being censored by other citizens. For example, the government has a duty to protect you from being attacked by a hostile mob that doesn’t like your ideas or having your public speech disrupted by a heckler’s veto.

The First Amendment also bars government officials from punishing your speech in many ways that don’t rise to the level of arresting you. To give just one example, since administrators at state colleges are government actors, they can’t tear your flyer from a public message board because they don’t like what it says.

A belief in free speech means you should be slow to label someone as utterly dismissible for their opinions. Of course you can kick an asshole out of your own house, but that’s very different from kicking a person out of an open society or a public forum. The xkcd cartoon is often used to let people off the hook from practicing the small d democratic value of listening.

Read more: “What’s the Best Way To Protect Free Speech? Ken White and Greg Lukianoff Debate Cancel Culture,” by Ken White and Greg Lukianoff, Reason.