Last Friday, Jonathan Turley penned an excellent column about new threats to freedom of expression at home and abroad in the Los Angeles Times. Turley, a well-known legal commentator and professor at The George Washington University Law School, surveys the legal landscape in both Europe and the United States and concludes that "Western nations appear to have fallen out of love with free speech and are criminalizing more and more kinds of speech through the passage of laws banning hate speech, blasphemy and discriminatory language." He notes that "[i]ronically, these laws are defended as fighting for tolerance and pluralism."
Professor Turley writes:
Most democratic constitutions strive not to allow the majority to simply dictate conditions and speech for everyone — the very definition of what the framers of the U.S. Constitution called tyranny of the majority. It was this tendency that led John Adams to warn: "Democracy ... soon wastes, exhausts and murders itself. There was never a democracy yet that did not commit suicide.''
Legislators in the United States have shown the same taste for speech prosecutions. In June, Tennessee legislators passed a law making it a crime to "transmit or display an image" online that is likely to "frighten, intimidate or cause emotional distress" to someone who sees it. The law leaves free speech dependent not only on the changing attitudes of what constitutes a disturbing image but whether others believe it was sent for a "legitimate purpose." This applies even to postings on Facebook or social media.
Judge Martin's comments are disturbing because they reflect the same emerging view of the purpose and, more important, the perils of free speech. Martin told Perce that "our forefathers" did not intend the 1st Amendment "to piss off other people and cultures." Putting aside the fact that you could throw a stick on any colonial corner and hit three people "pissed off" at Thomas Paine or John Adams, the 1st Amendment was designed to protect unpopular speech. We do not need a 1st Amendment to protect popular speech.
Followers of FIRE's work on The Torch will of course recognize the depressing similarities between the cases Turley cites and the prosecutions of students and faculty we battle here at FIRE. For example, the Cumberland County, Pennsylvania, case that Turley discusses—wherein a man was told by a judge that wearing a "zombie Muhammed" costume in a Halloween parade was "way outside your bounds of 1st Amendment rights"—would likely sound uncomfortably familiar to Purdue University - Calumet Professor Maurice Eisenstein, who faced nine charges of harassment and discrimination and a months-long investigation after criticizing Muslims on his Facebook page.
And of course, legislation like Tennessee's new ban on online speech causing "emotional distress" might as well have been copied line for line from the speech codes all too common at our nation's colleges and universities. For example, Tennessee lawmakers may have been inspired by the State University of New York at Brockport, which maintains an Internet policy that states:
All uses of Internet/e-mail that harass, annoy or otherwise inconvenience others are not acceptable. This includes, but is not limited to ... offensive language or graphics (whether or not the receiver objects, since others may come in contact with it).
Indeed, the only thing I would add to Professor Turley's eloquent and much-needed warning is my fear that new generations of Americans will be less likely to so much as bat an eye at illiberal, unconstitutional bans on speech like that passed in Tennessee. Today's students receive their degrees from institutions where punishment for saying the "wrong" thing is routine and shockingly broad bans on expression are standard policy, so will they even be able to register the threat to our democracy posed by similar restrictions in society at large? As FIRE co-founder Alan Charles Kors put it: "A nation that does not educate in liberty will not long preserve it and will not even know when it is lost."