Free Speech Matters, Even When it’s Not Protected by the First Amendment
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Free Speech Matters, Even When it’s Not Protected by the First Amendment

Jason Richwine
Jason Richwine
5 min read

“The government isn’t involved, so it’s not a free speech issue.”

Follow any debate over censorship these days, and one is likely to hear this misguided view stated repeatedly. It means, in effect, that free speech is a legal right against the government, but not a spirit or value that the broader society should honor. In an interview with Above the Law, First Amendment lawyer Ken White (of “Popehat” fame) colorfully articulates this perspective:

Recently you see, from the Right, (and from some Libertarians), a tremendous amount of bullshit about “the spirit of free speech.”

“The spirit of free speech” can be summarized as saying that not only is racist speech protected from prosecution and civil suits, it ought also be protected from other people’s response speech…. [N]ot only should they not be prosecuted (right) or sued (right), but it would be wrong to boycott them, shun them, encourage public condemnation of them that might cost them their job, and so forth, because that “chills speech.”

Basically, the “spirit of free speech” people want a world where people can be consequence-free assholes: where there’s a set of rules of civility and high-minded discourse that apply only to the responses…

White’s position is a confused one, but it reflects a worrisome movement toward devaluing free and open discussion, so it needs to be addressed. Let’s start with the confusion. For advocates of free speech as a “spirit” or cultural value, an important distinction exists between disagreement and retaliation. Obviously everyone should feel free to criticize anyone else, even in harsh terms, because that’s necessary for robust debate. If the “spirit of free speech” were supposed to render every speaker immune from criticism, then the concept would clearly be self-defeating.

The real threat to free speech comes not from harsh words, but from social and economic punishments that go far beyond the initial disagreement. A culture of free speech says that Ken White and I can have a vigorous debate over some issue of the day, but when it’s over we can both go back to our private lives without fearing retribution. I should not have to worry that White will lobby my employer to fire me, or encourage a mob to protest outside my house, or threaten my friends and colleagues with similar treatment unless they disconnect.

Those who instead believe that free speech means only that Ken White cannot have me arrested should consider why First Amendment protections exist at all. Presumably, the founders believed open debate is essential to a free society, and the threat of government persecution would discourage that debate. Of course, the First Amendment restrains only the government, but if we take the wisdom of it seriously we should value its principles more broadly. After all, if open debate is truly desirable, we should be concerned not just about government suppression of unpopular views, but about non-governmental suppression. As chilling effects go, “I would speak out, but I don’t want to risk going to jail” is not all that different from “I would speak out, but I don’t want to risk losing my friends and my livelihood.” The end result is the same—less speech, less debate, less openness.

Some people assume non-governmental censorship limits only a vitriolic fringe. I see no evidence of this. James Damore hardly expressed a fringe or hateful perspective when he internally criticized Google’s diversity ethos, but the company fired him anyway. Mozilla CEO Brendan Eich donated to a ballot initiative against same-sex marriage that won, but he lost his job anyway. The message from both companies was that people with contrary views—even widely-held contrary views—should get with the ideological program or lose their jobs.

Another misleading assumption is that private-sector censorship is only about defending the powerless from harassment. Actually, it’s often about defending the powerful from criticism. CNN once threatened to dox a blogger who had created a pro-Trump meme mocking the network. It backed down only on the condition that the blogger apologize and promise never to do it again. Who exactly was the powerless one in that situation? Dr. Noah Carl was fired by St. Edmund’s College because his research on group differences was “problematic,” but the administration cited no actual errors in his work. Was the university speaking truth to power, as the saying goes—or speaking power to truth?

Technology companies, media organisations, and universities exert tremendous influence over society, and we should not want them to punish people for what they believe, what they say, or what they research any more than we should want the government to do so.

In fact, non-governmental persecution is in some ways worse. At least someone whom the government charges with a crime is entitled to a trial in which the facts are aired. In the midst of social shaming, facts become secondary to outrage, and lives can be irreparably harmed before cooler heads prevail. Furthermore, the government must establish clear rules, with decisions subject to appeal, but non-governmental organizations can act on a whim. Exactly what kinds of speech will ignite an outrage mob or get a person banned from using PayPal? Nobody knows. The feeling that it is impossible to speak freely on controversial matters without being misunderstood or caricatured, combined with the sheer unpredictability of what will trigger an outrage mob, frightens people into keeping quiet. Is all of this okay just because it’s not spearheaded by the government?

The model that says “government censorship = bad; non-governmental censorship = good” is not sustainable. I believe that free speech should be a cultural value for the same reason it is a legal right—namely, that an open discussion is valuable. But censors will eventually turn this logic around. They will argue that if it’s right and good for private actors to persecute people for their “wrong” views, then surely it is also right and good for the government to do it. In fact, this is the position taken by White’s interviewer at Above the Law, Elie Mystal, who supports an anti-“hate speech” amendment to the Constitution. Sadly, an amendment probably won’t be necessary to achieve his censorship goals. A recent poll found that 35 percent of college students already believe that the First Amendment contains a “hate-speech” exception. How much longer until the courts decide it’s in there for real?

In the long run, the rights of a free people are sustained not by laws, but by a cultural consensus that places real value on freedom. That’s why the “spirit of free speech” is so important to revive. Debate people vigorously, but don’t try to silence them. Don’t try to prevent others from hearing what they have to say. Don’t try to get people fired from their jobs or shunned by their friends and colleagues.

Respecting free speech does not mean, of course, that every aspect of society must be viewpoint-neutral. A pro-choice advocacy group obviously need not hire pro-life employees, nor should we feel compelled to associate with unsavory characters in our private lives. When responding to speech we don’t like, a useful guideline is to ask ourselves, “Am I disagreeing, or am I retaliating? Am I trying to persuade, or am I trying to silence?” If retaliation or silencing is the goal, remember that such techniques will ultimately be used not just on “bad” speech, but on “good” speech, as well. And when people refrain from speaking because they fear personal retribution from corporations, the media, academia, or an unruly Twitter mob, the value of their speech is lost—lost in the same way it would be if the government threatened them with punishment. Someday in the not-too-distant future, speakers may have to fear that, too.

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Jason Richwine

Jason Richwine is a public policy analyst in Washington, DC.