Media, Top Stories

The New York Times Comes Out Against Free Speech

According to a front page New York Times news (not opinion) article by Adam Liptak “Weaponizing the First Amendment: How Free Speech Became a Conservative Cudgel,” we must adopt a stance of skepticism toward all this talk of free speech: if we wish to be sophisticated and sensitive, as all good Times readers aspire to be. Free speech? So passé. Only conservatives care about free speech anymore.

This is monumental news: the most influential newspaper in the world, the standard bearer of the Establishment, is announcing that free speech is, or should be, over.

The article states:

The (Supreme) Court’s five conservative members, citing the First Amendment, had just dealt public unions a devastating blow. The day before, the same majority had used the First Amendment to reject a California law requiring religiously oriented “crisis pregnancy centers” to provide women with information about abortion.

Conservatives, said Justice Kagan, who is part of the Court’s four-member liberal wing, were “weaponizing the First Amendment.”

That’s a disquieting thing for a Supreme Court justice to say. Taking a hard line on the First Amendment – the same hard line that has been traditional among liberals – is not to “weaponize” it, as if fundamental principles of the American system were suddenly dangerous weapons, ripe for abuse. The court’s Court’s progressives believe that a religious pregnancy counseling service is giving medical advice, so it should cover all options, including abortion. But pregnancy advice is not merely medical; it is also ethical, religious, political, psychiatric, and deeply personal. Such advice (which, coming from a Christian organization, might include strong pleas not to get an abortion) does not necessarily constitute medical advice at all.

It’s pretty obvious that requiring religious organizations to share information about abortion, a practice those organizations sincerely consider to be murder, abridges not just their freedom of speech, but also their freedom to practice their religion according to their own conscience. The majority, in their wisdom, agreed with me. Liptak continues:

The two decisions were the latest in a stunning run of victories for a conservative agenda that has increasingly been built on the foundation of free speech. Conservative groups, borrowing and building on arguments developed by liberals, have used the First Amendment to justify unlimited campaign spending, discrimination against gay couples and attacks on the regulation of tobacco, pharmaceuticals and guns. …

If certain recent conservative victories have been “built on the foundation of free speech,” then apparently the problem must be with free speech; it couldn’t possibly be because left-wing lawmakers are increasingly wanting to impose their viewpoints on the populace by law. As absurd as it sounds, the Times article really does advance the view that, since those conservative victories are rooted in free speech, there must be something wrong with free speech itself.

The article approvingly quotes a Cato Institute lawyer who rightly labels the Court’s position as libertarian:

“The libertarian position has become dominant on the right on First Amendment issues,” said Ilya Shapiro, a lawyer with the Cato Institute. “It simply means that we should be skeptical of government attempts to regulate speech. That used to be an uncontroversial and nonideological point. What’s now being called the libertarian position on speech was in the 1960s the liberal position on speech.”

Maybe it would be more appropriate to say that, for the last 50 years or so, a free speech absolutist position has been uncontroversial and nonideological, one of the areas where Democrats and Republicans could often (not always) agree. But that seems to be changing. The interesting thing about the Times article is that it says that the Republicans, or conservatives, are making free speech into a controversial issue. But this doesn’t hold water. If Republicans are simply standing by the free speech absolutism that characterized mainstream thought on both sides of the aisle for a couple of generations, it implies that people such as Kagan who find such absolutism to be a “weaponizing” of the First Amendment are the ones who are making free speech ideological.

But let’s be precise. Free speech always was ideological; it is part of the American civil religion. But the social justice left’s commitment to its own ideological “religion” seems to be getting the upper hand.

The Times article continues to argue that:

And an increasingly conservative judiciary has been more than a little receptive to this [libertarian] argument. A new analysis prepared for The New York Times found that the Supreme Court under Chief Justice John G. Roberts Jr. has been far more likely to embrace free-speech arguments concerning conservative speech than liberal speech. That is a sharp break from earlier eras.

But again, if, rather suddenly, many more conservative-joined majority decisions are based on free speech rights, that does not necessarily mean that the “sharp break” was due to an unusual, newly radicalized conservative jurisprudence. It could be just as well understood as a reaction to a spate of speech-squelching lawmaking such as the California law forcing Christian “crisis pregnancy centers” to advertise abortion options. Why suppose that it is the conservatives who have made a “sharp break”? Ironically, the next thing the Times says is that it is thinkers on the left who have, strikingly, changed their minds about free speech:

“The left was once not just on board but leading in supporting the broadest First Amendment protections,” said Floyd Abrams, a prominent First Amendment lawyer and a supporter of broad free-speech rights. “Now the progressive community is at least skeptical and sometimes distraught at the level of First Amendment protection which is being afforded in cases brought by litigants on the right.”

Many on the left have traded an absolutist commitment to free speech for one sensitive to the harms it can inflict.

Take pornography and street protests. Liberals were once largely united in fighting to protect sexually explicit materials from government censorship. Now many on the left see pornography as an assault on women’s rights.

In 1977, many liberals supported the right of the American Nazi Party to march among Holocaust survivors in Skokie, Ill. Far fewer supported the free-speech rights of the white nationalists who marched last year in Charlottesville, Va.

This traditional support of free speech, by the way, has been perhaps the single strongest point of agreement between libertarianism in particular and progressivism. But apparently no longer. And so, just as progressives sometimes say that libertarianism is “naïve,” now, all of a sudden, the Times can approvingly quote a law professor saying that traditional free speech absolutism is “naïve”:

There was a certain naïveté in how liberals used to approach free speech, said Frederick Schauer, a law professor at the University of Virginia.

“Because so many free-speech claims of the 1950s and 1960s involved anti-obscenity claims, or civil rights and anti-Vietnam War protests, it was easy for the left to sympathize with the speakers or believe that speech in general was harmless,” he said. “But the claim that speech was harmless or causally inert was never true, even if it has taken recent events to convince the left of that. The question, then, is why the left ever believed otherwise.”

But this is, surely, a paradoxical thing to say. How can it be naïve to be a free speech absolutist, if that jurisprudence held sway for generations? After all, plainly, many free speech rules and policies were implemented. Just as plainly, generations of the most brilliant legal minds were free speech absolutists. It was, and remains, the Constitutional policy of the nation, as evidenced by the fact that the Supremes unanimously rejected hate speech laws again last year. It seems that Prof. Schauer is pleased to call this policy “naïve” because that is how the culturally elite law professors (who know better than the rest of us) like to persuade the readers of the Times. All he really means, of course, is that he and his fellow cultural elites now take the cool and edgy position, that of the clearly more enlightened Europeans, that free speech is not “all that”, after all.

The article next introduces some just shoddy academic theorizing, in an attempt to justify speech control and censorship:

Some liberals now say that free speech disproportionately protects the powerful and the status quo.

“When I was younger, I had more of the standard liberal view of civil liberties,” said Louis Michael Seidman, a law professor at Georgetown. “And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”

To the contrary, free speech reinforces and amplifies injustice, Catharine A. MacKinnon, a law professor at the University of Michigan, wrote in “The Free Speech Century,” a collection of essays to be published this year.

“Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” she wrote. “Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.”

These are strikingly bold and broad statements. You’d expect pundits to be making them rather than college professors. It’s a mistake to think that free speech contributes to a more just society? Really? It’s a “weapon of the powerful”?

I’ll get back to “weaponizing” in a moment, but I’d like to point out that the Times is presenting these two campus radicals as liberals, which is ridiculous. They are both theorists of the far left, purveyors of critical legal studies; MacKinnon considers herself a “post-Marxist.” Such people are leftists, not liberals.

The notion that people who attack American traditions of free speech and First Amendment are liberal, of all things, is patently absurd. If you are skeptical of free speech absolutism, then you are not a liberal for that reason alone: what is more essential to American liberalism than a strong commitment to free speech?

Now let me briefly discuss this notion that free speech is a “weapon of the powerful.” To be sure, the powerful have free speech rights and, like it or not, their power gives them the ability to exercise those rights more broadly and effectively than the weak. Welcome to Planet Earth: it is nothing new, it will never change, but it becomes much, much worse whenever a radical leftist regime takes over. The obvious fact that the powerful enjoy free speech rights, however, does not establish that free speech is not also a deeply important right of those who are weak. It is, after all, the rights of minorities and of the disempowered that most need protection by the law, considering that the powerful can usually take care of themselves.

There’s a striking irony in the article’s own examples. They all, with the sole exception of Citizens United, feature the rights of the ordinary, weak citizen protected from the depredations of some of the most powerful governments on earth. Don’t believe me?

Relatively weak religious organizations (the National Institute of Family and Life Advocates’ total national expenditures for 2009 was $759,259) came under attack by the enormously powerful government of California. It was the First Amendment, as interpreted by the SCOTUS majority, that protected their freedom of speech and religion. Nazis and Klansmen are surely some of the most hated and disempowered people in the country at present (and yay for that); like it or not, equality before the law means they have the same speech rights as more decent people. Principled laborers, just regular people, who do not want to support the Democratic principles of their company’s unions, were supported against organized union power (and the Democratic government power enmeshed with it). And pornography? Well, to be sure, pornographers can be powerful, but only a very few of them. Most of those who produce and consume porn are not particularly rich or powerful. They’re just horny little guys with rights. The free speech rights of the rich and powerful are, by contrast, well protected.

In the great First Amendment cases in the middle of the 20th century, few conservatives spoke up for the protection of political dissenters, including communists and civil rights leaders, comedians using vulgar language on the airwaves, or artists exploring sexuality in novels and on film.

In 1971, Robert H. Bork, then a prominent conservative law professor and later a federal judge and Supreme Court nominee, wrote that the First Amendment should be interpreted narrowly in a law-review article that remains one of the most-cited of all time.

“Constitutional protection should be accorded only to speech that is explicitly political,” he wrote. “There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic.”

Yes, the conservatives of fifty years ago were terrible on First Amendment rights, and a stalwart of that brand was rejected Supreme Court nominee Robert Bork. His principle, that the First Amendment protects only political speech and not creative works, was repressive, and roundly despised, particularly by progressives and liberals. Bork was the sort of jurist only an arch-conservative could love. So it is amazing that a Times reporter would have the temerity to mention Bork in the context of this article, considering just how loathed he was by the liberals of yesteryear. Yet although it cites Bork’s Principle approvingly, the Times article clearly does not view conservative speech as being equally worthy of protection as liberal speech, arguing that the Supreme Court has “ruled in favor of conservative speech at a higher rate than liberal speech as compared to earlier courts.”

Has the Supreme Court ruled more in favor of “conservative speech”? Maybe, maybe not; but surely “conservative speech” and “liberal speech” alike deserve protection. That much, I would have thought, is obvious. Yet the Times writer seems not to think so, and in this he follows Seidman, who (it seems) confuses partisanship for scholarship.

For argument’s sake, let’s suppose that it’s true that the Supremes have recently protected conservative speech more than progressive speech. This could be due to the random patterns in the data. It would be hard to show otherwise: the sample sizes (of Supreme Court free speech cases) are surely too small to show statistical significance. It could also be because conservative speech has come under attack.

But even if the Supremes have recently been unfairly favoring conservative speech, even if they have given conservatives prerogatives not given to progressives, it still does not follow that, somehow, free speech absolutism is now suddenly a “conservative” only position. Our journalist draws the inference anyway:

The Court, led by Chief Justice Earl Warren from 1953 to 1969, was almost exclusively concerned with cases concerning liberal speech. Of its 60 free-expression cases, only five, or about 8 percent, challenged the suppression of conservative speech.

The proportion of challenges to restrictions on conservative speech has steadily increased. It rose to 22 percent in the Court led by Chief Justice Warren E. Burger from 1969 to 1986; to 42 percent in the court led by Chief Justice William H. Rehnquist from 1986 to 2005; and to 65 percent in the Roberts court.

Even putting aside my earlier points, this argument is bizarre. Cases protecting conservative speech have risen, from 1969 until today, from 22 percent, to 42 percent, to 65 percent today. The latter number is supposed to establish that freedom of speech is now a “conservative” value? Consider that in 1969, the number was 22 percent. Would it have been reasonable, at that time, to conclude that conservatives should not have cared at all about free speech rights, that they were justified in being soft on free speech? I don’t think so.

Yet for all of the bad argumentation that is present within the Times article, the Supremes themselves articulate their positions well. (You gotta love Supreme Court opinions; they’re often well argued, even if they’re wrong, and they’re so earnest, as they should be!):

“Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned,” [Alito] wrote. “Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues — say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this.”

Justice Alito’s argument makes a great deal of sense to me, for what it’s worth. That’s a cogent analogical argument. (To be sure, it’s just an outline of an argument; see the opinion for the details.)

Although it’s no big surprise to me that the Times has come out against free speech absolutism, declaring it to be a conservative position and something that all enlightened people have evolved beyond, it’s dismaying to see it there on the front page in black and white. Our world has changed.

So, I fully expect there to be growing calls for laws against hate speech in the United States. Support on the American left for such laws is already huge. According to a Cato Institute survey, while “just” 40 percent of Americans favor banning hate speech – that’s actually a lot considering we’re talking about doing away with the First Amendment – fully 52 percent of Democrats (i.e., most of them) support such laws. The number goes up to 61 percent of Democrats, if we specify that the laws protect black Americans against hate speech. Maybe more troubling is that 66 percent of Democrats believe hate speech is “violent”; if you believe that, then of course it’s a short step to conclude that “violent speech” should be banned (as we ban other forms of violence). Interestingly, Cato also asked for Americans’ views on the relevant constitutional question; it turns out that 56 percent of Americans believe that banning hate speech is consistent with the First Amendment. It’s a good thing they aren’t on the Supreme Court.

Free speech on campus has increasingly come under attack. One of the most telling numbers from the Cato survey was that 68 percent of students support a confidential “bias reporting system,” i.e., they imagine that it’s a good idea that there be campus speech monitors, assisted by student informants. This is almost as stunning is the fact that 48 percent of all Americans support such a totalitarian system as well.

Even if the Supremes remain free speech absolutists for another generation, the left’s intensified attack on free speech is deeply consequential. The next presidents might very well include socialists who would replace Ginsberg, Breyer, Thomas, and Alito with radical free speech skeptics. It’s easy to imagine Kagan and Sotomayor moving more and more in the direction of free speech skepticism.

Besides, not everything depends on the Court. Formerly mainstream Democrats are showing themselves to be increasingly willing to take extreme action. It’s not that hard to imagine an independent California with hate speech laws stronger than any in Europe.

Due to its central role in protecting popular sovereignty in a republic, free speech is as important as it gets. The fact that the left is repudiating its former free speech absolutism is much more important than its decision to push for gay marriage or any other social agenda. It’s probably more important even than immigration or gun control. It’s fundamental; it goes to the root of our system.

Free speech skepticism—openness to censorship—could easily become de rigueur on the left, as gay marriage rights have become. That is actually what I would expect, because if there is one thing that animates progressives today, it is their contempt, even utter hatred, for anything they perceive as racist, sexist, homophobic, or anti-immigrant. So powerful is this animus that “reasonable” restrictions of hate speech can be easily sold to them as just good sense. To make matters worse, progressive judgment about what is bigoted in these ways is often inaccurate. “Racist” and “sexist,” often used as cudgels in debate, would be “weaponized” indeed by hate speech laws.

So what’s a free speech absolutist to do? Well, if you support free speech, push back as effectively as you can when you see your friends and acquaintances moving in the direction of free speech skepticism. This is still a battle for hearts and minds. The Supreme Court frequently follows popular opinion, and, sadly, there is no reason to think that a future Court might not dismantle many current First Amendment protections.

Also, learn the arguments; the case for free speech is very strong. There is no intellectually respectable case to be made for censorship (especially of merely offensive speech). Even from the point of view of cost-benefit analysis, the benefits of tolerating “hate speech” and eschewing compelled speech are substantial, and the downsides are minimal. By contrast, the risks of censorship and compelled speech are enormous: think of the threat to free and open inquiry. It is, in short, obscene to treat free speech as “weaponized,” when it is censorship and compelled speech that have been, throughout history, very real tools to stifle dissent and scaffold authoritarian regimes.


Larry Sanger is co-founder of Wikipedia and a Ph.D. philosopher. He is currently CIO of Everipedia, which will soon put Wikipedia’s content on the blockchain. Follow him on Twitter @lsanger

Listen to this article
Voiced by Amazon Polly


  1. Pingback: The New York Times Comes Out Against Free Speech. - The Intellectual Dark Web.

  2. cassian young says

    Great article. The same intellectual decay is taking place at the Financial Times and the BBC, by the way.

    Personally, I find myself retreating from them both, and I am a centrist. What’s happening to the rest of the population? Only a tiny minority of the UK or US actively support left-identitarians.

    As a political strategy, the co-option of media by activists resembles a slow march towards machine gun fire. By its nature, and as Mark Lilla and Richard Rorty have pointed out, it must generate more opposition than support.

    Unfortunately this isn’t the good news it might seem to be. We are still left with two sets of opponents to the civilising force that is enlightenment thought – the old anti-enlightenment right, and the new anti-enlightenment left.

    As Rorty predicted, watch out for a wave of Trump-like figures across the West.

    • John G Lammi says

      I cancelled my FT and Economist subscriptions and don’t bother with editorial aspect of the horrible BBC

      • @ John G Lammi

        I really do dislike people like you. You don’t know what you are on about. BBC is an odd organisation and by some standards it shouldn’t exist as it is. But it does. And it is overall still a credit to Britain. It is unique. If it ends in my lifetime, I will certainly mourn its passing.

        There are just too many silly little people who thoughtlessly butcher everything in their paths. And you have the stupidity to blame others but don’t consider your own destructive behaviour.

      • x-moose says

        Makes two of us. Add the New Yorker to my list. The WSJ and the Spectator are my two last bastions.

      • Grayson says

        Why did you cancel your Economist subscription?

    • Colin says

      “Only a tiny minority of the UK or US actively support left-identitarians”

      Is that really the case though? I certainly hope so, but as stated in this article huge swaths of people support hate speech laws and wrongthink police on campus.

      We have hate speech laws here in Canada, and its abundantly clear that they don’t even go after the people spouting genuinely bigoted or racist rhetoric – those people have small followings and little impact. They blatantly go after those who are critical of the current political regime’s trendy ideas on culture who DO have big followings and for all intents and purposes are little more than run of the mill cultural conservatives.

      We’ve got all kinds of people who genuinely talk of how ridding the world of Jews would be a good thing, and yet it is people like Mark Steyn who are brought before the human rights tribunal for decrying the cultural impact of mass migration from the Islamic world. His views may be insensitively articulated, and hell they may even be wrong sometimes, but they don’t come anywhere near to what most people envision when they declare their support for “hate speech” laws. This is what frightens me – you’ll see many radicals quote mine and obfuscate the positions of their most prominent ideological opponents (who are necessarily fairly mainstream and thus not nearly as bigoted or ‘dangerous’ as fringe elements can be) to try and argue they are engaging in hate speech, all while completely ignoring all the fringe figures who actually engage in what both sides of the mainstream political spectrum might call hate speech.

      The fear that hate speech laws might devolve into a weapon with which to stomp out dissidents seems to be viewed as a slippery slope argument, but it’s not that at all – from the very beginning hate speech laws seem to very clearly be about going after mainstream political positions that really aren’t based in bigotry and are very popular. The fact that they ignore small-time racists in favor of big time political thinkers (and it doesn’t even need to be said, but it’s exclusively people on the right who are apparently breaking hate speech laws, despite there being far more and more prominent leftist thinkers who openly call for violence and who make explicitly racist generalizations) is the most damning proof that the rise of support for hate speech laws is pretty terrifying evidence that radical, tyrannical and oppressive leftism is becoming more and more popular. It is necessarily the case that those whose job it would be to determine what is and isn’t hate speech are radical leftists who genuinely believe Ben Shapiro is an alt right white supremacist who’s getting away with murder by having the following he has.

      I’m not so sure it’s just a tiny bit very vocal minority anymore. A whole generation now reaching adulthood have been through a k-12 and university system that at every turn has taught them that the most fundamental conservative ideas are racist hatred, that it’s the state’s job to shape the culture and dialogue as much as it possibly can, and that even listening to arguments from these people amounts to enabling Nazism. People don’t realize how far gone the public education system is, and it is only students who actively rebel against the actual curriculum who would have ideas other than the radical leftist baseline.

      For all the left’s talk of “power”, they seem very adept at side-stepping what should be plainly obvious to everybody – the hard left has an absurdly disproportionate amount of political, institutional and cultural power that they are very eager to use to stomp out anybody who gets in their way. The idea that white christian conservatives have more ‘power’ than say a black LGBT activist in today’s political sphere is downright laughable, especially as the NYT makes this claim while pointing out that only conservatives have been brought all the way to the Supreme Court on charges one couldn’t even fathom being leveled at their leftist counterparts.

      • “despite there being far more and more prominent leftist thinkers who openly call for violence and who make explicitly racist generalizations”

        Really? Name one?

        ” who genuinely believe Ben Shapiro is an alt right white”

        He is a racist bigot. And yes some of his tweets on Arabs are outright racist.

        “A whole generation now reaching adulthood have been through a k-12 and university system that at every turn has taught them that the most fundamental conservative ideas are racist hatred”

        Silly exaggeration.

        “The idea that white christian conservatives have more ‘power’ than say a black LGBT activist in today’s political sphere is downright laughable, ”

        It is NOT laughable when it comes to USA. White xtians have vast amount of political power – especially now. ANd that is a fact.

  3. KD says

    The New York Times supported “free speech” when the media was dominated by large newspaper chains, with the NYT at the head of the corporate newspaper chain of being.

    Now, in an age when print is dying, and there are a number of small competitors, ***shock*** the NYT comes out in support of press censorship to use the power of state to crush “extremists” and “purveyors of fake news”, e.g. small upstart competitors.

    Its not much different from an established brothel which supports the legalization of prostitution (to protect the brothel), but seeks to limit prostitution to large capitalized brothels and desires the criminal prosecution of independent prostitutes cutting out the middle pimp.

  4. Sananvapaus says

    I only wish we had the same fundamental view towards freedom of speech in Europe. The United States represents a bastion of hope for many of us around the world. Keep fighting the good fight.

  5. alex says

    Excellent. And published on a very appropriate day!

  6. MCA says

    Did we even read the same article? Because I did not even slightly pick up “The NYT comes out against free speech”, and I don’t think you can plausibly argue that with resorting to (with apologies to Dennis Reynolds) “but the implications…”

    The article was, in my reading largely just a series of quotes (I suspect about ~50% of the words were quotes), and while it clearly played up the controversy angle (clickbait), it actually bothered to get quotes and views from both sides, pointing out the shifting allegiances, and avoided any direct, authorial statements about which side was right or wrong. Could they have quoted better people, used better labels, done better analysis, applied greater scrutiny? Absolutely, it was overall a relatively low-quality article that I’d expect from HuffPost, not NYT.

    But I didn’t see any evidence of the NYT or the author taking a specific position. Over-emphasizing a controversy and playing up both sides, sure, but the paper and author never specifically and explicitly said which side was right, and even gave both sides a better level of fairness than I’m used to seeing in today’s polarized environment.

    • Wendy says

      Ping. I had the same reaction to the original article as you did.

    • Bo Bo says

      Maybe you did read a different article? The title of the article being discussed here is “How Conservatives Weaponized the First Amendment”. That’s not in quotation marks, that’s the NYT saying that the first amendment has been “weaponized”, which seems fairly clear as a statement against the first amendment, especially when combined with the text of the article which characterizes the free speech position in negative ways (e.g. it’s about discrimination against gay people, rather than about protecting the speech rights of artists). The article offers no support of free speech, which itself represents a change in opinion at the NYT. But most importantly, just look at the title.

    • AA says

      “and while it clearly played up the controversy angle (clickbait), it actually bothered to get quotes and views from both sides, pointing out the shifting allegiances, and avoided any direct, authorial statements about which side was right or wrong.”

      You’re kidding right? The NYT article never once engages with or makes the argument for free speech as a fundamental principle…presumably because doing so would have made the ‘speech as a weapon’ argument silly and even dangerous in comparison.

      Our entire political system will be reduced to a Marxist hell-hole if enough people buy into the assertion that the expression of ideas is the equivalent of weaponized warfare. If indeed speech is a weapon, then there is no need to engage in deliberative democracy at all — we should just cut to the chase and meet on the literal battlefield.

    • andrew cronan says

      Yes, yes 100% yes. This guy found what he wanted to see in this article- not what was there

  7. ga gamba says

    An excellent analysis of the present state of affairs. Thanks, Mr Sangar.

    More worrisome than a NYT opinion is Kagan sitting on the Supreme Court. The NYT may only influence opinion. The Supreme Court’s power is far greater.

    As for the number of liberal and conservative speech cases ruled by the Court, the NYT should have performed an analysis of the number and type ruled by the lower court too. If progressives find their speech rights are largely assured by law presently they may not be filing suits. Further, I suspect the laws of the 1950s, and those who were oppressed by them, were very different from those of today. Public accommodation laws didn’t come into being until the mid-60s, and several high-profile cases are the result of the intrusion by the state into private business. Moreover, perhaps the left-right dichotomy is not the correct lens to use to view this issue. For example, within anti-pornography activism there exists an alliance of conservative Evangelicals and far leftist Radfems. This raises the question: Is anti-porn a left or right issue? A more appropriate lens is the authoritarian-libertarian one.

    I think for libertarians of both right and left it behooves us to frame the conflict as the struggle against authoritarianism rather than conservative versus progressive. Low-resolution understanding of issues has too many people simply going along with their political tribe. By reframing the issues and the speech-infringing laws as authoritarian it’ll be easier for libertarians to make the persuasive case. How many people happily declare themselves authoritarian or in support of its ideals?

    • peanut gallery says

      Yes, I hear lots of anti-fascist rhetoric, but really authoritarianism is the root issue. People in the prog sphere don’t seem to know what ideas fascists actually held…. Now it’s just anyone they hate/disagree with.

    • @ ga gamba

      “A more appropriate lens is the authoritarian-libertarian one. ”

      And yet this won’t solve anything. Porn is more of a morality question.

  8. Shenme Shihou says

    “But let’s be precise. Free speech always was ideological; it is part of the American civil religion.”

    Of course it was always ideological. Roger Baldwin (of ACLU fame) specifically said he only supported free speech as a means to fight capitalism. He was totally cool with freedom of speech being non existent in the Soviet Union. Lefty radicals in the US need freedom of speech, starving Ukrainians dont.

    It just shows that when an influential group becoms dominant they prefer to shut down dissent.

    The bright side is that now we have the internet, and thus, have a record of the NYT calling for the end of free speech. This means that if Gen Z is as reactionary as we have been told (fingers crossed), the NYT wont have a leg to stand on when the iron fist comes crashing down on them.

    • augustine says

      “It just shows that when an influential group becoms dominant they prefer to shut down dissent.”

      Yes, because they fear what they know about the group they have just defeated. One might think that the winners would be more tolerant of dissent (because they won after all) but humans have been through similar cycles many times before. In fact, toward the end of a conflict, when the opposition is weakest, the fight for an imagined absolute domination is often the most vicious. Cf. sports, etc.

  9. Paul Ellis says

    “Some liberals now say that free speech disproportionately protects the powerful and the status quo.”

    Well, of course they do. ‘Some liberals’ say anything that comes into their heads that they think will advance their cause, even for a millisecond. So does everyone else, if they think they can get away with it.

    Free speech is a necessary component of democracy, because it is only by being free to speak, and to listen, that one can inform oneself and take a view on political issues, and therefore vote in a responsible way.

    On the other hand, ‘free speech’ is not necessarily carte blanche to blurt out whatever is in your head under all circumstances like a Touretter. There is such a thing as common courtesy, a time and place. But there *must be* a time and place in a functioning democracy, otherwise what we are left with is progressive totalitarianism. Oh wait…

    • Caligula says

      Presumably when the NY Times considers limiting free speech, it envisions itself, or others in substantial political agreement with it, as being the arbiters of what speech is to be permitted.

      Yet surely “We must limit speech to protect the rights of the powerless” contains its own contradiction, as it can only be those with the means to impose their will on others who could possibly have the power to control anyone else’s speech.

    • The Wall says

      That part about listening would be one of my points. What I’ve been seeing on college campuses is the use of essentially specious free speech impingement claims to foist a militant presence that is really about domination, not dialog. Such abuses seem to inhabit the behaviors of people I would think of as liberals or progressives (forcing unfamiliar vocab on others, and the stupidity of displacing correctness with “feelings” in the trigger word issue) as well as rightist/conservatives, and corporatists who conflate amplification of speech with speech in order to justify unconditional application of corporate power with money (Citizens United). One of the things we’re losing is a sense of consensual reality, with the reification of justice as just one “point of view”, and denial of the right of everyone to be wrong until there has been enough discussion of an issue for a quorum to adopt a best practices resolution.

  10. Paul Ellis says

    “The obvious fact that the powerful enjoy free speech rights, however, does not establish that free speech is not also a deeply important right of those who are weak.”

    Correct. The same is true of copyright, also under attack by progressive utopians in thrall to powerful but ‘cool’ vested interests. I must confess to having a dog in this particular fight.

  11. TJR says

    It can’t be said often enough that Liberalism and Leftism are not the same thing. As you say, if you are not a free speech absolutist-or-nearly-so then you are pretty much by definition not a liberal.

    Wikipedia (seemed appropriate to check there) suggests that the conflation of leftist and liberal came from the right as a way of tarring genuine liberals with the leftist brush. Is there any evidence of leftist entryists appropriating the word liberal as well? Must be a shedload of PhDs you could write on this.

    • Mark says

      Wikipedia is wrong; to be a liberal originally meant to advocate freedom from authoritarian compulsion but was corrupted by the statists, particularly of the left. As Joseph Schumpeter said about the use of the term, “As a supreme if unintended compliment, the enemies of the system of private enterprise have thought it wise to appropriate its label.”

    • LukeReeshus says

      Wikipedia (seemed appropriate to check there) suggests that the conflation of leftist and liberal came from the right as a way of tarring genuine liberals with the leftist brush. Is there any evidence of leftist entryists appropriating the word liberal as well?

      Hard to say. Widely used political adjectives are practically untraceable in origin, because they’re so widely used.

      There is good news though: however much conservatives conflated 1960s liberalism with leftism, and however much that linguistic move carried on through the following years, it’s no longer occurring.

      I can remember, only a decade ago, when conservatives derided “liberals” as the enemies of freedom / God / whatever other conservative buzzword they were on about. Nowadays, though, they identify “leftists” as the enemy. At least, the more intelligent ones whom I read do.

      I think this is a step in the right (no pun intended) direction. The more people are able to delineate leftism from liberalism, the easier it will be to cordon off the more radical aspects of leftism that are not in line with fundamental American values, such as the one discussed in this article—the equation of speech with power projection.

  12. One thing about Bork: although he interpreted the First Amendment narrowly, he didn’t advocate speech restrictions as a matter of policy — even though they are in principle permitted by the Constitution, according to him. He thought we should have liberal laws on speech, but that the First Amendment doesn’t dictate that we have the correct policy. So it’s misleading to cite him as a conservative enemy of free speech.

  13. markbul says

    The American Left is finally coming out of the closet. This is wonderful. Now you see them for what they are. I can see no down side here – the mask has been pulled aside. No free speech for you – that’s only for us.

  14. According to the Georgetown law professor: “What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”

    Our US government was formed to counter those pesky power-mongering monarchies. We got checks and balances among the branches and retained individual liberties for citizens. While wanting a more ‘just society’ is a nice ambition, do we throw out the basic tenant of free speech for a nicety? If this statement represents their program, Georgetown law has run off the rails.

    • TarsTarkas says

      The Georgetown professor needs to reread the Founding Documents of this country. France is the nation who promulgated ‘liberty, fraternity, equality’. And I would like for him to describe what he considers would be a ‘more just society’. His definition? Someone else’s definition? A tyrant’s definition? Why must it be a top down imposition? Criminals convicted of crimes certainly don’t think society is just; should we in the name of fairness let them all out to prey on the rest of us? Must we consider their views and attitudes equal to our own law-abiding selves? Such a shameful suck-up to the SJW crowd.

    • Peter from Oz says

      Let’s face it, law professors are ignorant about politics. They know a little law, but aren’t good enoguh even at that to do anything but teach others who go on to practise law. It is the practise of law that provides true and deep intellectual knowledge of leal issues. If you want an opinion on the law you pay a leading attorney, not some silly law professor.

  15. Henry says

    This is part of a general trend, isn’t it? A lot of people who call themselves “liberals” or “progressive” have confidently espoused more and more extreme political stances – and they don’t want to admit this fact to themselves, or to anyone else.

    Thus they take the attitude that those who don’t agree with them are, in fact, the ones getting more extreme. It’s too simplistic to think in terms of “left” & “right” but people like their politics simple, so they concoct this idea that the far-right is making huge gains, and write pieces in once-serious newspapers about “hatred”, ” hate-speech” and so on.

    The problem is the power they now possess. Influential people believe (or go along with) this new religion

  16. Dustin says

    It’s a mistake to think that the Court’s conservatives are free speech absolutists. They clearly do not care to protect the free speech rights of high school students. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (where the Court’s conservatives curtailed the free speech rights of student journalists); and Morse v. Frederick, 551 U.S. 393 (where the Court’s conservatives allowed teachers to suppress student speech at an off-campus event during school hours).

    It’s also a mistake to think that “free speech absolutism” is always about speech first and foremost, rather than about calling something speech, like campaign contributions or commercial advertising, that the Framers did not consider to be part of the reason for adopting the First Amendment in the first place.

    By saying that the Times’ position on this is that “free speech is over” the author is engaging in rank hyperbole that does nothing to further a more nuanced discussion. Such a discussion might note that we appear to be entering a new Lochner Era, in which the Supreme Court is using the First (and Second) Amendment to curtail the authority of legislatures to make laws on all manner of subjects that previous generations would have found completely unobjectionable.

    In his book The Invisible Constitution, Harvard Law Professor Larry Tribe warned against interpreting the Constitution in ways that might make one of more of its provisions akin to a “black hole” that sucks up all the other values that document is supposed to embody and protect.

    • Mechan B says

      I agree with your notion that the Court’s conservatives are no angels either with regard to free speech and it is why citizens should continue to engage and challenge anything that may dissolve their free speech.
      However your notion that the author is engaging in “rank hyperbole” about positions taken by a major media corporation is confusing. It is exactly what we should be doing when we see any attempt to dislodge the fragile “free speech” that is special privilege to us. The only people who can uphold our free speech is us and if we let even a sliver of it go, that lovely miracle is gone.

  17. Pingback: New top story on Hacker News: The New York Times Comes Out Against Free Speech – Latest news

  18. Pingback: New top story on Hacker News: The New York Times Comes Out Against Free Speech | Do Mithay Bol

  19. Dustin says

    In addition thinking about how liberal and conservative justices have differed on the issue of student speech, you might also want to consider that over the last thirty to forty years, it has been the Court’s liberal wing that has consistently voted to uphold citizens’ Fourth Amendment rights against police searches and seizures. During that same time period, the Court’s conservatives, with few exceptions, have voted to expand police powers.

    • AA says

      Dustin, you entirely missed the author’s point if you think his argument depends on demonstrating ideological consistency of conservative judges across time and over issue areas. BTW, expanding police power, which is necessary to enforce the law, can be entirely consistent with striking down laws that violate individual rights and freedoms (though there are tensions to be resolved). Your juxtaposition of these positions as supposed evidence of ideological hypocrisy on the part of conservative judges is not convincing.

      • Dustin says

        I don’t think the author’s point depended on conservatives or liberals demonstrating ideological consistency. But many of the commentators here seem to think that the liberal justices are anti-libertarian. I am a civil libertarian and a lawyer, and I can tell you the Court’s conservatives from the time of Rehnquist to the present day have not been libertarian at all when it comes to the Fourth, Fifth, and Sixth Amendments. In addition, their First Amendment jurisprudence is biased in favor of corporations and religious groups and against students.

        • Peter from Oz says

          Isn’t it the case that a person can be libertarian on one issue and authoritarian on another?
          I would have thought the difference between the left and right is the different blends of authoritarian and liberatarian views each side takes.

  20. John says

    Idiocracy (2006) was not actually an absurdist satire and low-brow comedy. It was a documentary sent as a warning gift from the future.

    Sample quotes from IMDB:

    Narrator: “The years passed, mankind became stupider at a frightening rate. Some had high hopes the genetic engineering would correct this trend in evolution, but sadly the greatest minds and resources where focused on conquering hair loss and prolonging erections.”

    Narrator: “Unaware of what year it was, Joe wandered the streets desperate for help. But the English language had deteriorated into a hybrid of hillbilly, valleygirl, inner-city slang and various grunts. Joe was able to understand them, but when he spoke in an ordinary voice he sounded pompous and faggy to them.”

    Pvt. Joe Bowers: [addressing Congress] “… And there was a time in this country, a long time ago, when reading wasn’t just for fags and neither was writing. People wrote books and movies, movies that had stories so you cared whose ass it was and why it was farting, and I believe that time can come again!”

  21. OZMAN says

    Even in extremes you find truth. I hate communism because I hate the idea of my possessions which I earned could be taken and redistributed but from the far left you can also learn about the extent of inequity. However I also hate Fascism but from the far right you can also learn the extent of loathing towards white people and calls, including from people like Anthony Boudin whomI have seen during an interview that whiteness needs to be bred out. This out the chants of “Jews shall not replace us” of those at Charlotsville into better context so that we can get to the root cause of a problem and solve it.

    • TarsTarkas says

      Sorry, Fascism isn’t far right, it’s just a bit left of communism. It got smeared as far right by the true believers of Marxist-Leninism, their bitter opponents. True ‘far righters’ trend libertarian or even anarchistic, being very opposed to authority of any kind other than their own. That’s why you don’t see any ‘true’ far right organizations, those cats are very hard to herd and don’t take dictation or even guidance well.

      Change the word in ‘X will not replace us’ to ‘Whites’, ‘Conservatives’ ‘Racists’ ‘Cis-anything’ etc. and you’ve got whacked-out TDS Progressives at their finest. The NSDAP gladly welcomed ex-Communists to their ranks, knowing that they would work even harder for them than they did for their former comrades-in-arms, if only to prove their faith to the new religion.

      • Peter from Oz says

        Exactly right. The Communists and the Nazis weren’t political opposites, but different strands of the same collectivist dream.

      • @ TarsTarkas

        Er, no. Fascism is far right. Extreme nationalism, nativist, authoritarian, dictatorial power. That is hallmark of far right.

        “True ‘far righters’ trend libertarian or even anarchistic, being very opposed to authority of any kind other than their own.”

        Ah! The “true” game. Nope. You made this up. So from history who were the “true” far righters?

      • Andrew says

        This ‘Nazis and fascists were left wing’ meme is idiotic. Learn some history.

      • «True ‘far righters’ trend libertarian or even anarchistic, being very opposed to authority of any kind other than their own. »

        “True far-righters” are (or were, perhaps they went extinct?) throne-and-altar monarchists; nothing to do with anarchism or libertarians, and probably more close to fascists then to anarchist (look for the several alliances between fascists and old-style rectionaries: the Francoist army in Spain – joining the fascist Falange with the legitimist Carlists and the conservative catholic CEDA -, , the alliance between the Nazis and the DNVP – the party of the Prussian aristocrats and the pro-Empire monarchists – in the German Weimar Republic; the National Right Alliance in the Italy of the 1970s and 1980s, joining the Monarchists with the neo-fascist Italian Social Movement; the Petain regime in France, who had the support from many people of the fascist leagues, and also of many people from the traditionalist monarchist French Action, etc, etc.)

  22. Bubblecar says

    “the most influential newspaper in the world”

    My goodness, Americans do like to overrate themselves.

    But it seems to me the problem here isn’t one of “free speech”, it’s the usual one of dishonest peddlers of religion being dishonest.

    Why call your anti-abortion unit a “crisis pregnancy center” if you’re not trying to mislead people?

    “If you are skeptical of free speech absolutism, then you are not a liberal for that reason alone: what is more essential to American liberalism than a strong commitment to free speech?”

    American liberalism takes various forms, as it does elsewhere. There are what could be called “value-free” liberals – of which Sanger seems an example – who hold that the only responsibility liberals have is to argue for free speech, then stand back and let society sort itself out, even if that means tolerating increasing intolerance and empowering the sworn enemies of any form of liberalism.

    And there are liberals who believe that liberals have a duty to protect and promote a liberal society, by countering the efforts of the enemies of liberalism to dominate society.

    Let’s remind ourselves that certain self-styled “progressives” are often rightly criticised because of their reluctance to counter the stridently anti-liberal ideology of Islam.

    Such “progressives” are clearly often not interested in defending liberalism. But we can say for sure that the conservative judges are never genuinely interested in defending liberalism, and it is indeed naïve to believe otherwise.

    • Mark says

      I snickered when I read “the most influential newspaper in the world” in the world, too.

      We could do with a lot less cultural influence from the USA. All this political correct nonsense comes from activists copying the Yanks.

    • Mazzakim says

      “it’s the usual one of dishonest peddlers of religion being dishonest.”

      If you’ve been in one of these “pregnancy crisis centers” you will see non-medical staff dressed in clothing that is certainly supposed to suggest the advice they are giving is medically informed. It’s right on the line of fraud, imo. Maybe they shouldn’t be compelled to provide information on abortions, but I certainly think they should be required to be open and honest about the information and services they are providing as well as who is providing their funding.

      • MB says

        My God, what problem can you have with a crisis center. An abortion IS a crisis and should be met with utmost concern. And any way to stop an abortion is something that should looked into. You can be a “pro-choice” advocate but understand that an Abortion is the last step solution for anyone and not the FIRST step.
        Using your argument I would guess that “Planned Parenthood” centers are also misleading those that enter.
        So if you’re going to be political, remember even the “righteous side” may have ulterior motives.

  23. Chris conger says

    Lots of “Compelled speech” is a public good;

    We compel drug makers to say what the side effects and risks are. We compel soup manufactures to say how much MSG is in their soup.

    If a corporate friendly 6-3 supreme court, happens to decide that such regulations are “compelled speech” and are against the First Amendment; will we all be better for it?

    Will it be a victory for liberalism?

    Let’s all hear the liberal argument for withholding harmful information from consumers, so we don’t “compel speech” of the delicate corporations.


    • John M says

      I think you need to find a different analogy to make your case. The Supreme Court basically decided that the religious group shouldn’t be compelled to advertise for a competing service with which the religious group doesn’t agree (abortion providers). Both compete in the realm of helping people solve the problem of unwanted pregnancy.
      Your soup analogy is an example of compelling a business to reveal factual information about its OWN products.

      The analogy to that for the religious provider would be compelling them to reveal that their solution will result in a baby being born and the parent(s) may have to raise it or put it up for adoption. I’d venture to guess that they’re already doing this disclosure voluntarily.

      The analogy in the other direction would be compelling Campbells to tell its customers about Progresso soup.

      • Chris conger says

        I say “compelled speech” is a public good and provide simple examples.

        To reply :”you need to find a different analogy” is to avoid taking a position on the analogy I have provided.

        • John M says

          I have a position on the analogy you provided. I agree with requiring transparency for the ingredients in food. The problem is that your analogy isn’t directly relevant to the subject in the article for the reasons I stated. Compelled speech for transparency about an entity’s own services or goods isn’t the same as compelled marketing for an entity’s competitors.

          I don’t currently have a settled position on this particular case. It’s nuanced, and I’m looking for good arguments pro or con. Unless you’re going to argue that all service and goods providers should act in a fiduciary capacity for their clients, which in this case would require the religious group to mention all of the woman’s options (including abortion), then you’ll need to argue why the service of helping women deal with unwanted pregnancy is different from selling soup; not how it’s the same.

    • Peter from Oz says

      Hasn’t the Court read in an exception that relies on the public interest. Hence, things that aare a mixture of speech and deed, such as libel or incitement to violence, or things such as requiring labels to be true and comprehensive are not laws abrogating free speech.

      • ….so far, yes. But of course the Supreme Court is moving right, and “compelled speech” arguments will have a lot more sympathy from the solid majority very soon.

        Astonishing that the author of this Quillett piece has not thought 2 moves down the old chessboard.

  24. damienboum says

    Typo: Ginsburg, not “Ginsberg.”

  25. beyondyesandno says

    Liptak relying on free speech perspectives from Catherine “all marital sex is rape” MacKinnon! Well we’ve known for awhile that the NYT is sympathetic to communists.

  26. Dan Meisels says


    Thank you Larry Sanger, for a perfect rebuttal to the Times.

  27. Sydney says

    “But pregnancy advice is not merely medical; it is also ethical, religious, political, psychiatric, and deeply personal.”

    What is this silliness supposed to mean? I required simple medical advice from informed professionals for my pregnancies and abortions. Nothing more. Very simple. (And no advice whatsoever for my miscarriages.) Similarly for the millions of women across the globe experiencing pregnancies and abortions each day.

    Ridiculous, hyperbolic, pseudo-intellectual gobbledygook. So overblown that it’s funny, except I’m afraid that a lot of young, conservative men take this sort of junk seriously. Men who write like this do all but advertise their utter cluelessness about women’s reproductive lives.

    The NYT has indeed gone over the high side. I go over the front page every day and marvel at what it has become. But this sort of hyperbolic, uninformed writing doesn’t help any side at all. Quillette is good, but it really needs better editing.

    • John M says

      “What is this silliness supposed to mean? I required simple medical advice from informed professionals for my pregnancies and abortions. Nothing more. Very simple.”

      I think you’re confusing the reasons a woman consults a doctor for a wanted pregnancy with the reasons a woman sees a counselor for an unwanted pregnancy.

      In the wanted pregnancy case, the woman wants to ensure the health of herself and the child. I don’t imagine women go to their obstetrician to discuss concerns about fitness or readiness for parenthood unless their options for social interaction on the topic are severely limited.

      In the unwanted pregnancy case, it’s not a medical issue unless the woman opts for an abortion, unless concerns about her or her baby surviving the birth or other long-lasting health issues are the primary motivator for seeking help. The likely motivator for seeing the counselor is for non-medical issues, such as the woman thinking she’s not ready to rear a child, or concerns about contributing to overpopulation.

      The author is right on this point. Bringing a child into the world is a multi-dimensional decision that goes way beyond simply being a medical issue.

      In your case, it sounds like you made your decision on the non-medical aspects before you went to see a medical doctor, so at that point it really was that simple for you. Not everybody is like you.

  28. Peter from Oz says

    ”.. the most influential newspaper in the world” Hardly. Most people on the right ignore it, and the right is where the power lies.

    • Martin28 says

      Don’t kid yourself. The left controls the institutions of intellectual thought, which determine acceptable dialog and much of the research, the mainstream (most influential media), and the culture through Hollywood and the music industry. It controls the foundations, which give out huge funding for reports, research, and projects. The left is gaining control of the corporate world. The NYT is indeed the most influential newspaper in the US at least, and arguably the world.

  29. Adam Liptak is usually a great and careful legal reporter. He’s especially good on giving clear explanations of legal technicalities, tracking down facts about legal processes, and giving good narratives about cases. As I wretch my way through the ultra-ideological wasteland that the world’s greatest newspaper has become, I often get a respite when I land on one of Liptak’s serious pieces.

    This was not one of them. Beginning and ending with unhinged remarks of Justice Kagan was a giveaway that something was wrong. The rambling through random comments regarding tangential issues and superficial statements about profound issues was just weird. When I hopped through mini-paragraphs with cameo spots by MacKinnon and Bork, I knew Liptak was having serious difficulties with his assignment. It happens to many good journalists.

    Since the photographer Bill Cunningham died, there’s no longer a safe place to go to get away from the TDS and just sheer panic and madness and puritan rage of the NYT.

  30. Julian says

    I would agree that there should be some limit to the kind of speech protected by the 1st Amendment. I do not claim to be smart enough to know precisely where that line should be, but common sense dictates that someone should not be allowed to espouse patently libelous material and stay under the law’s protection, just as it should not protect deliberately hateful speech directed at a group unified only by biological factors they have no control or choice over.

    As for the proposed law by California, I would be wholeheartedly in favour of it. If an organisation is going to masquerade as a medical clinic, it should be held to those standards. Anywhere giving out medical advice should be treated as a medical facility in that respect, regardless of the ethos of those running it.

    • Dave says

      Slander and libel are already illegal. As far as “deliberately hateful speech” is concerned the Supreme Court has already ruled that “hate speech” is protected. Obvious reason is that who decides what is hate speech? To many on the left, simply saying that I am opposed to Affirmative Action makes me a Nazi, and so forth.

      • Bill says

        Ugh, they are NOT illegal. Illegal implies against the law meaning that the Government can penalize (i.e. imprison or fine). Those are civil claims seeking a redress of damages and have nothing to do with the government. If you libel or slander, the police don’t arrest you.

        Freedom of speech is about the government quelling speech — and ONLY the government. It does not cover your employer saying you can’t talk about politics, or me in my house kicking out someone with TDS spouting out non-stop and interrupting me watching the game on TV. It entered the realm of free speech in this case because the government, by law, compelled speech with penalty.

        As far as the “deliberately hateful speech” and the limits like the often quoted (but untrue) yelling of fire in a crowded theater, I believe (but i’m no lawyer) the rules don’t actually restrict the speech but clarify accountability of result. So if you shoult “FIRE!” in a crowded theater, you aren’t arrested and charged with anything per ce, but if you cause a riot because of it you are charged with that, and your shouting of “FIRE!” is used against you as showing intent. The “inciting violence” part simply loops in the speaker with the actor who committed the violence linking them and allowing charge stacking like conspiracy. It’s rarely charged or i’d imagine a ton of folks would be under arrest/charged right now due to inciting the man in TX to physically assault the teenager in the Whataburger.

  31. Pb says

    Media death is accelerating in front of our eyes. As the money leaves old legacy, so does the talent, and you are left with this. Whip the flames of extreme politics and the undecided swing right. The left have no limits, they are hippies after all, and their antics become increasingly repellent. And we see the unclothed babbling madness. The virtue signal hides a knife.

    • X. Citoyen says

      @Gonout Backson

      That New Yorker piece says a lot about why we’re here. Marantz, a supposed journalist and inquiring mind, meekly mirrors the pseudo-reality of the liberal professors he spoke to. The disturbers of the peace, the force of discord rocking campuses, is alt-right trolls.

      Not once does it occur to Marantz to ask his informants about the growing number of incidents that have arisen in house, without any impetus from outside provocateurs. Nor does it occur to Marantz that the tenured radicals who preach to their captive audiences day in and day out might be contributing far more to the incivility on campus.

      No, the provocateurs claim is a red herring to distract attention from the in-house radicalism that the majority of liberal faculty can’t bring themselves to admit exists and is a threat to the institution.

      • Gonout Backson says

        For me, the most delightful is his version of the Evergreen College story. Frankly, this is gentrified “Pravda”. I spent my youth reading such stuff – but never, not in my wildest dreams, would I imagine to find anything like it in one of the most famous and respected magazines of the Western press. “Full of passionate intensity”, indeed.

  32. Bill says

    In reading the various news sites over the past two days i’ve noticed an uptick in racism “signaling” with the same 2-3 stories of some black woman harrassed by a white man at the pool, or a white woman in a neighborhood being framed in 30-40 stories making it appear as though they aren’t outliers but this is a widespread thing going on right now. Trying to deflect from polling on immigration and approval ratings on economy? The journalist-activists are trying to create news and narrative. In essence, they have the platform to sell their narrative, and that narrative drives clicks which creates $$s so the platform approves. No different than sites like InfoWars during the Obama presidency.

    It is no longer about news, it’s about clicks. Newspapers sold ads, the online version sells clicks. The difference is that in the newspaper days, the ads were a segment (granted, a large one) of the revenue stream. In the modern age, it’s 100% of the revenue stream. Follow the money.

  33. Emelio Lizardo says

    What the First Amendment brilliantly does is limit the government’s authority over speech. In contrast, the Socialist basic laws of other nations simply see speech as one of many rights it grants and gets to arbitrate.

  34. Martin28 says

    Shocking, but it fits in with the “journalism is not activism” article that recently appeared on Quillette. If journalism is considered activism, and the end is a progressive social justice agenda, then indeed free speech gets in the way. The fear is that an alternative narrative will be presented that will be compelling. The NYT has long since given up its role as a voice for the truth, and it is now another voice for progressivism.

  35. Has anyone ever claimed that speech is “harmless”, as Frederick Schauer seems to imply? If anything, speech is probably the most powerful force in society as it motivates people to act on their ideas and their passions. Were M.L. King’s or Malcolm X’s or Stokely Carmichael’s utterances “harmless”? Indeed, without speech being powerful, we would have had neither JFK nor FDR nor the Civil Rights movement…nor Donald Trump.

    Speech can be used for good or ill. The assumptions behind the First Amendment include that the public is capable of weeding out the good from the bad rather than the prevailing wisdom defining what is bad, whether it be Communism or Conservatism. I don’t think anyone presupposes that the 1A is a silver bullet against bad governance. Especially if people are clueless.

    As far as there being more liberal First Amendment challenges a half century ago vs. more conservative ones now? Perhaps that is because half a century ago, we were extracting ourselves from the depths of McCarthyism and the HUAC inquisitions. Now it is conservative thought under attack. I would guess the cases reaching the high courts reflect what is being suppressed rather than the SCOTUS having made an ideological decision.

  36. John AD says

    In arguing against the Supreme Court’s progressives’ opinion that a medical centre should include advice on abortion, this article says “But pregnancy advice is not merely medical; it is also ethical, religious, political, psychiatric, and deeply personal.” Yes. But, conversely, it’s not merely ethical. And the ethics is skewed in a religious organisation.

    It’s by no means “pretty obvious that requiring religious organizations to share information about abortion [abridges] their free speech”. On the contrary, the advice from a religious medical centre (an oxymoron of teeth grating intensity) may be the only advice such folk in need can get, and we should indeed force such organisations to give full and correct medical advice. Not only that, we should force them to give the broader view on ethics (in the same way a teacher should not be allowed to dictate their personal ethics). The free speech angle would be to allow the individuals, outside of a medical advice centre, to say what the freak they like about their beliefs.

    • Bill says

      So then, by your logic, since the PPH clinic may be the only one in the area, you would be ok if the legislator put regulations requiring PPH to counsel on things like abstinence, alternatives to abortion, and mandating signage listing out all the negative consequences of abortion (mental and physical)?

      I don’t feel the government should bind either one to advertise the services of competitors (the religious places) or to advertise behavior that would be counter to their business model (PPH). Even in the case of Big Tabacco we don’t see the courts mandating that they advertise nicotine withdrawal products, only that they include information about product related harm in their advertising. That aligns with my PPH example above. Require PPH to advertise about the harm from abortion (mental and physical) no matter how slight (since it can’t be studied due to uproar/outcry/demagoguery from the left the same as studying firearm sees the same reaction from the right).

      • John AD says

        Yes. If an organisation is touting itself as a medical centre, then it should give, as I said, full and correct medical advice. If they are giving advice about birth control, then theoretically abstinence could be indicated as an option – but that’s not really advice about how to not avoid pregnancy when having sex; they’ve already made the decision to have sex. A medical practitioner would have to be extremely careful not to be moralising from their personal perspective. The person’s choice to have sex is their choice. The decision should ideally be made based on wisdom about living a fulfilling and rewarding life (which includes the consideration of others, obvs). That wisdom comes from many channels (personal experience, a broad education included exposure to moral philosophy and deep understandings of human nature etc).

        “Competitors”? Absolutely a medical centre should be mandated to provide information about other centres. This is not about commerce.

        And absolutely the psychological consequence of an abortion is relevant. That is obviously something that should be balanced against the consequence of enforced motherhood and the bringing into existence of a child with a mother and father who are not going to be able, ready, have the resources/maturity/jobs/home/stability, willing, capable, together, whatever (and yet who might be fantastic parents when the are). It’s the first I’ve heard of the stifling of research into the psychological consequences of abortion (but I live in a civilised country). If that’s the case then it’s obviously wrong. Two wrongs (stifling research into gun control and contentious psychology subjects) do not make a right.

  37. Song For the Deaf says

    It’s obvious what’s happened. Liberals wanted free speech for themselves and they used the rhetoric of universal free speech to persuade the rest of us to let them have it. Now that they’re in power -surprise, surprise- they don’t feel like reciprocating for the rest of us.

    “But we only object to free speech for racists.”

    Everyone they don’t like is a racist. It’s so transparent, only a liberal could lack the self-awareness to see it.

  38. X. Citoyen says

    I found Liptak’s frankness refreshing. Instead of feigning belief in the inherent value of the First Amendment before eviscerating it, he admitted that it’s only valuable as an instrument for furthering his political aims. Disturbing to see it naked, yes, but now we know where he really stands.

  39. Rikard says

    Happy fourth of Juli, if a bit late.

    I live in a country without free speech when compared to the USA. I can be sent to prison for up to two years for voicing my opinion (not inciting illegal action against an individual person, just voicing my opinion). Even if making a factual statement I can be sent to prison. Even if the court recognises and acknowledges that my statement is factually correct I can be sent to prison.

    This is due to my country’s laws governing ‘hate speech’, and in no small part thansk to our system of having politicians presiding in criminal courts – no jury; appointed politicians pass judgement on the advise of the court’s judge (I simplify the process in this description but this is the essence if you boil it down).

    I live in a country ruled by a socialist democrat party, allied with the environmentalist (emphasis on the ‘mental’ bit) and the communist party. I live in Sweden.

    Americans, we beg of you: defend your free speech by all means and measures. Your free speech is the golden standard for those of us living in the gilded cage of the european socialist democracies, for those of us – whether we be red or blue – who fight for our opponents right to voice his dissenting opinion, to state uncomfortable truths, and to simple be heard.

    In a few months, we have a general election. If the socialist coalition wins again (and being a corporatist stucture where party and state are fully integrated they may well do so despite the actual numbers), they will enforce a new law making what I’m writing here a crime punishable by life in prison: that law makes it a crime to, as a private individual, spread negative views about party policies to foreigners.

    Such is life in Sweden that even when quoting official governement sources stating that negroes, afghanis, and arabs commit upwards of 85% of all cases of rape (and 100% of all cases of rape with multiple offenders) in Sweden, I can be sent to prison. I mention this to drive home why free speech is such an absolute; once you start qualifying it, regulating it, sanitizing it – you have lost it.

    Recently a dentist tasked with looking over dental health of immigrants discovered that almost all of them had lied about their age – he reported this both through official channels and publicly. The other day he was sentenced to pay 500 000 SEK (appr. 40 000$) for violating the hate speech law. That his was a statement backed by facts mattered not: claiming, backed by facts from multiple sources that migrants as a group had lied about their age is a hate crime here.

    I could go on and on and on – people have been blacklisted, hounded to commit suicide, and have been made pariahs by the hundreds, if not more, these past ten years.

    Whatever your politial leanings in any other issue, please understand: without free speech you will share our fate. If the price is Al Sharpton, or Cliven Bundy, or whomever riles you up – it is worth it. Never let your governement take your free speech away, nor any other Agency. We did, fifty years ago, and now senior citizens are fined or imprisoned for voicing dissenting opinion on matters of islam and migration.

    Look at Sweden, Germany, and Great Britain to learn what not to do.

    Rikard, formerly a teacher

    • ga gamba says


      I was talking about these issues with my Swedish brother-in-law the other day. His feeling is that there is enormous pent-up rage against the ruling party that will be expressed in the polls this September. I hope so.

      But you can’t just can’t leave a change of the ruling party at that. The Social Democrats (SD) have wormed their way into many aspects of life, from the broadcasters to women’s refuges to police. A purge is needed. Be assured misdeeds were done and it’ll take determination to sort through the mess they’ve made. It may require the government cease funding SD-allied NGOs and other community groups. i.e. starving them out. School curriculum will need to be reviewed and revised. And certainly the Constitution must be strengthened to require speech protections and mandate thorough data collection by police and public access to such data. Yo ought to get rid of the hate-speech laws entirely. “We tired to be sensitive to some groups with regards to the Holocaust but the SD’s abused these laws, so never again.”

      • Anonymous Coward says

        @ga gamba

        “I was talking about these issues with my Swedish brother-in-law the other day. His feeling is that there is enormous pent-up rage against the ruling party that will be expressed in the polls this September. I hope so.”

        In Sweden ‘the world’s first feminist government’ has facilitated the establishment of the largest Moslem population as a proportion of the indigenous in any European country, and whatever else may be said about Moslems, sympathy for the mores of Third Wave Feminism does not appear to be among their philosophy’s defining characteristics.

        Is this some kind of cultural death wish on the part of Swedes? Because if it is, they look likely to get what they wish for. How is the damage to be undone without significant repatriation? Because integration contravenes Moslems’ core beliefs. Quite the opposite, in fact. They’re quite open in saying so, and we should take those statements at face value.

        Anonymous Coward for obvious reasons.

        • dirk says

          I wonder why Norway has escaped the immigration apocalypse, I only hear about problems in Sweden and Denmark.
          The fact that these 2 countries, unlike most other European nations, never had colonies (if we don’t count some Caribian islands for short time) and always had the privilege to be completely on their own, must be the reason that they don’t have the normal suspicion of ”otherness” of those other nations. Germany, of course, fares a middle position.

    • Nicholas says

      That is one of the saddest comments below the line that I have ever read. I thought it hyperbolic when the Breitbart crowd lamented that Sweden was “gone” but I fear they are correct.

  40. jappy says

    “with the sole exception of Citizens United”

    Ummm, these were ordinary people that just wanted to produce a movie about Hilary Clinton.

  41. Rob G says

    Interesting comparing the NYT’s equivocations with a more robust June 4th 2016 Economist leader in defence of free speech – in which TE noted how “authoritarians are always looking out for respectable-sounding excuses to trample on it.” Free speech, it asserted, is the best defence against bad government, and in that respect had been shown to ward off wider pathologies as well: “As Amartya Sen, a Nobel laureate, has pointed out, no democracy with a free press ever endured famine.”

    A well endorsed online comment flagged this leader as “… one of the best TE articles I have read. I do not find a left or right lean and it provides a well thought out, logical, non-PC argument.”

    Logical. Non-PC. Arguably, what free speech is all about, and in support of which The Economist’s advice was appropriately succinct: “Win the argument without resorting to force. And grow a tougher hide.”

  42. Great article, and so timely. It’s coming down to this lately. I’ve seen it coming and now it has risen to a fevered pitch. Free speech is the linchpin on which our individual sovereign rights rest. Take that away and we’re done. We might as well turn our country into one huge Gitmo/Gulag. So, where’s the New Times attack on free speech coming from? We know that communism is a failed experiment. Millions exterminated in the name of political correctness. Don’t these wild-eyed, ideologically possessed people on the left understand? They are signing their own doom.

  43. “This is monumental news: the most influential newspaper in the world, the standard bearer of the Establishment, is announcing that free speech is, or should be, over. ”

    The NYTimes is saying no such thing. NYT is merely pointing out that the conservative faction has become very skilled at manipulating language and symbols. People like Frank Luntz have trained the GOP very well in the arts of deception. Lesson No. 1 is “Learn to fake honesty and integrity.” The NYTimes position is basicly that we need to get much better at sorting out the real meaning and intent of any right wing statement or propaganda.

    We can start heeding the NYTimes message by interpreting the multiple flaws in logic which Mr. Sanger foists onto Quillette readers using the rules of mathematical logic in Wikipedia and countless other sources.

    • You misunderstand the fundamentals of free speech. Speech cannot be censored because it is deceptive or dishonest. Such judgments are not relevant to deciding whether speech can be precluded. The reason is that, in order to limit speech by such judgments as to the worth of its contents, would require that someone be given the authority to make such value judgments. Logically this power would devolve on some instrument of government, giving government authoritarian control over the limits of speech. The founders believed this would be anathema to the principles of a free people, liberty and democracy.

      A good book on the principles and practical reasons underlying free speech is “Kindly Inquisitions” by Jonathan Rauch. Read it and you may be surprised, but hopefully also persuaded.

  44. When Trump won the election it was a serious blow to the agenda to put in place the kind of limitations on free speech so common now in mainland Europe, the UK , Canada and Australia. The limits on free speech in the above mentioned countries is troubling because on the surface they pretend to be progressive and modern nation states. In reality they seem to be becoming distopian examples of what Eric Blair predicted in his Orwellian fiction. In the UK the Tommy Robinson case is a deeply troubling example now added to a host of others.
    With the above mentioned article the NYT’s has finally shown its “hand” and has thus revealed the senitments of a certain faction of Elites who have on their agenda — making speech that could possibly expose their affronts to liberty and truth– a crime in the US. Well that hidden agenda has now been exposed on the front page of their truth “rag”.

  45. I recently subscribed to the Times for a limited period of time. I noticed that it inserts articles in its news coverage pages that are not labeled as opinion, but clearly represent a partisan political point of view. The articles are not even labeled as “analysis.” This is one of these ambiguous articles. This seems a natural extension of the Times’ long existing practice of manipulating its news coverage – through what is reported, how it is written, and where it is located on the news pages – to conform with the Times’ editorial positions. Just one more step in the degradation of responsible and ethical journalism among the MSM.

  46. andrew corpe says

    I have cancelled subscriptions to the NYT, UK Independent(sic) and now the FT for this kind of ‘News’ item that is nothing other than the expression of a political agenda. Most insultingly we are expected to pay good money to be indoctrinated in this way. The NYT is currently offering me a weekly subscription at 1€ if I sign back up. I will be hanging on to my euro.

  47. Pizza Pete says

    “Although it’s no big surprise to me that the Times has come out against free speech absolutism, declaring it to be a conservative position and something that all enlightened people have evolved beyond, it’s dismaying to see it there on the front page in black and white. Our world has changed.”

    It took me longer than many to come to this realization. Sad and not a little bit scary.

  48. “There’s a striking irony in the article’s own examples. They all, with the sole exception of Citizens United, feature the rights of the ordinary, weak citizen protected from the depredations of some of the most powerful governments on earth.”

    Yes. I was thinking this while I read your article. The job of the supreme court is not to be left or right. Their job is to protect individuals from the overreaching power of government. That’s it. It is how Kennedy can come out in support of both gay marriage and Masterpiece Cakeshop!

    Citizens United is interesting. The founders never foresaw limited liability corporations. They never envisaged that their country would need a strong means of keeping overreaching corporations from preying on weak citizens. This is still a work in progress.

    But for everything else, every person in the US, conservative or progressive, should be enthusiastic about the libertarian bias of the supreme court: protect it’s citizens from government tyranny.

  49. I am as disheartened as Mr Sanger at the rising tide of censorious opinion among the prominent left. (It is not coincidental that, as he notes in passing, that the Times’ article appeared on page one as a “news” story, which is indicative of the erosion of objectivity at that publication.) However it would seem equally worrying that anti-free speech thought appears already entrenched among many inhabitants of social media: those straying from “approved” vocabulary are regularly and harshly shamed into submission. This type of censorship is not based in law, tradition, or even partisanship – it is a new form of mob rule.

Comments are closed.