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:
- Part 1: Free speech does not equal violence
- Part 2: Free speech is for everyone
- Part 3: Hate speech laws backfire
- Part 4: Free speech is bigger than the First Amendment
- Part 5: You can shout ‘fire’ in a burning theater
- Part 6: Is free speech outdated?
- Part 7: Does free speech assume words are harmless?
- Part 8: Is free speech just a conservative talking point?
- Part 9: Free speech fosters cultural diversity
- Part 10: Why ‘civility’ should not trump free expression
- Part 11: ‘New’ justifications for censorship are never really new
- Part 12: Free speech isn’t free with a carveout for blasphemy
- Part 13: Does free speech lead inevitably to truth?
- Part 14: Shouting down speakers is mob censorship
Nadine Strossen: People who have access to resources that facilitate communication — not only money, but at least as importantly education, and technology — can more meaningfully exercise their freedom of speech to communicate more effectively with a larger audience. That fact, however, does not logically support the conclusion that freedom of speech should be curtailed. Rather, it supports the conclusion that our society must continue to vigorously promote everyone’s full and equal access to the means for effective communication.
In 1960, journalist A.J. Liebling famously quipped that “Freedom of the press is guaranteed only to those who own one.” Advocates of both free speech and equal rights have been working to change that impoverished free speech reality, including by leading the fight for a free and open internet, which can potentially make everyone the functional equivalent of a printing press owner. The internet and mobile phones have empowered grassroots groups to mobilize for multiple causes — including Black Lives Matter and Me Too — that could not have gained such traction through the vastly more expensive, exclusionary communications tools of earlier eras.
It is sad but true that not only freedom of speech, but also other rights, are too often more fully enjoyed by those with more resources. The solution to this problem is hardly to reduce the scope of the rights, but rather, to increase the ability of more people to meaningfully exercise them. Consider, for example, the fundamental right to life itself.
In the U.S., people charged with capital crimes are far more likely to be sentenced to death, and actually executed, if they are indigent and hence dependent on overburdened and under-resourced public defenders. The answer to this problem is hardly to reduce constitutional protections against capital punishment, but rather, to increase the resources that permit poorer people to benefit from those constitutional protections.
There is another fatal flaw in the argument that freedom of speech further entrenches the privilege and power of those who already have both: It is precisely those who lack political or economic power who are the most dependent on robust freedom of speech.
Throughout U.S. history (and in other countries), equal rights and social justice movements have gained momentum through forceful exercise of free speech rights to advocate and demonstrate, litigate and lobby. Conversely, censorship is consistently wielded in an effort to stymie these causes. In short, it is the disempowered, not the powerful, who have the most to gain from strong free speech protection, and the most to lose from its weakening. To this day, state and local governments around the U.S. have been disproportionately enforcing existing laws, and enacting new ones, to stifle protesters for progressive causes including racial justice and police reform.
The idea that we can trust [the powerful] to use that power to defend the powerless is not borne out by history.
Greg: The powerful do well under virtually any system of government. They’re not the ones who need freedom of speech. Its purpose is precisely to protect minority opinions and those who are unpopular with powerful people.
For most of history, the rich and powerful were protected by their wealth and power. Then, when democracies first emerged, the majority set the laws, and, because of that, their majority positions were protected by law. You only need a separate concept of freedom of speech or a law like the First Amendment to protect people, ideas, and arguments that are not already otherwise protected by the right to vote or some other power.
The ones who enforce the rules are, by definition, powerful. In a country with strong protections for freedom of speech, the powerful are barred from using the legal system to attack the powerless for their speech. If you empower the government to censor, you are giving the powerful more power.
The idea that we can trust them to use that power to defend the powerless is not borne out by history. If you want to give whoever is powerful censorship tools to protect the marginalized, do you trust that they will use it well? Do you trust what a Biden administration would do with that power? If so, do you trust what the next Trump would do with that power? A good intellectual exercise before passing a new law is to consider how your worst enemy would use that law — and thinking about that is even more important when imagining restrictions on free speech.