JANUARY 24, 2021
IS FREE SPEECH the friend of equality and justice? Or is it the foe? Is free speech a tool wielded by conservatives and white nationalists to provide aid and comfort to the spread of their racist ideologies and hateful messages? Or is free speech a valuable weapon used throughout history by oppressed groups to speak truth to power and bring about radical change to reverse centuries of racism and discrimination? Have accusations against progressives for promoting a “cancel culture” given conservatives a perfect opportunity to seize the mantle as the valiant defenders of free speech?
A frontpage article in the October 18, 2020, edition of The New York Times Magazine reports that some people “question the way we have come to think about the First Amendment’s guarantee of free speech” and wonder if “perhaps our way of thinking about free speech is not the best way.” Was free speech ever meant to take sides in these fraught debates? Was it intended instead to simply create a marketplace where competing ideas wrestle to be heard, with the hope that truth might emerge? And is that very marketplace rigged to protect only the speech of those already in power?
We are in the midst of a historic reckoning on race and democracy that demands that the American people take stock of the lasting legacies of its original sin of slavery and consider the future of our political system. With every institution under scrutiny, the origins, purposes, and future of free speech are no exception. Three new books, with a range of perspectives, sharpen this debate and together help us navigate this moment that is so laden with strident charges and countercharges.
In Is Free Speech Racist?, Gavan Titley, a senior lecturer at the National University of Ireland, Maynooth, questions whether the false and discredited practice of racism deserves the respect and protection afforded to free speech, or whether it in fact enables, facilitates, and legitimizes hatred and discrimination. In Confessions of a Free Speech Lawyer: Charlottesville and the Politics of Hate, prominent First Amendment attorney Rodney A. Smolla examines the consequences of his career dedicated to defending the free speech rights of people who espouse ideas with which he vehemently disagrees. And in Dare to Speak: Defending Free Speech for All, Suzanne Nossel, the chief executive officer of PEN America, while making the case promised by her title, recognizes the real harms inflicted by hateful racist, sexist, homophobic, ableist, and other forms of offensive and demeaning speech, and offers a path forward. Taken together, these three books initiate a far more sophisticated, nuanced, and realistic conversation about the role of free speech in contemporary society than the tiresome and headline-grabbing “free speech debates” where so many strut and fret upon the stage, superficially magnified in the media, full of sound and fury, signifying nothing.
In Is Free Speech Racist?, Titley is at his best when describing “the stark realities of subjugation and humiliation” imposed by racism, which possesses “an irrational hostility based on race, usually accompanied by a belief in the superiority or inferiority of certain races.” He calls out a few recent examples of racism such as President Donald Trump saying that Representatives Ilhan Omar and Alexandria Ocasio-Cortez should “go back and help fix the […] crime-infested places from which they came,” singling out two women of color oblivious of the fact that they are actually “from” the United States. Titley describes the frustration of writers such as Reni Eddo-Lodge, who has suffered the sting of racism to the point of exclaiming, “I’m no longer engaging with white people on the topic of race” because of “a lifetime of self-censorship that people of colour have to live.” Had Titley written a book developing these themes, exposing the evils of racism, explaining the nature of implicit bias, white privilege, and systemic racism, and outlining concrete steps that societies can take to dismantle racism, he would have contributed significantly to the progress of racial justice.
Yet Titley does very little of that. Instead, he blames free speech for racism, and his antidote is to block, cancel, and eliminate racist speech. It is a flawed and lazy analysis. But before examining its weaknesses — in the spirit of free speech — let’s give his arguments a fair reading.
Titley is deeply concerned that conferring on racist speech the respectable mantle of “free speech” gives it the same deference and hallowed status that has been bestowed on great and worthy ideas over centuries of classical liberal thought. As a result, free speech no longer serves its neutral role in the storied “marketplace of ideas” because it elevates, honors, and promotes racism and all of the hatred, oppression, and silencing that it represents. For him, free speech has become “weaponized” in the service of racism. He sees a tendency of “appropriating ‘free speech’ as a shield against criticism or as a licence [British spelling] to provoke.” The “central argument” of his book is that “where racism is dominantly understood in terms of ideology and ideas, invocations of free speech have become fundamental to reshaping how racism is expressed and legitimized in public culture.” Consequently, “free speech has been adopted as a primary mechanism for validating, amplifying, and reanimating racist ideas and racializing claims.”
As Titley sees it, giving a racist a platform on a university campus or community forum to voice hate-filled rhetoric anoints that speaker with the imprimatur of the university or forum. “The very idea of public debate,” he writes, “exudes a glow of democratic potency, one that all too often remains undimmed by any reckoning with the barriers and inequalities to meaningful participation that shape public cultures.” He skeptically adopts the question of one observer: “How can we balance the core values of preserving freedom while limiting the harmful effects of racism?”
Titley argues that the far-right has “captured” free speech. Racists have replaced hackneyed KKK appeals to “White Power” with the rhetoric of free speech, converting challenges over the validity of what they say into attacks on their cherished right to say it. “Anti-racism is increasingly cast in the role of censor,” he writes, “granted exceptional powers to silence in a context of abundant, endless communications.” By hijacking free speech, Titley argues, racists attract support from a wider swath of society who are more comfortable defending such a universal value but would never be caught dead defending racism or white supremacy itself. In a variation on the Observer Effect, which posits that the very act of observing a phenomenon changes that phenomenon, Titley appears to be suggesting that the very act of treating racist speech as free speech transforms racism into a legitimate subject for public discourse and debate.
Titley, author of several books, including After Charlie Hebdo: Terror, Racism and Free Speech (2017), is rightly skeptical of the “marketplace of ideas” metaphor. The “dominant liberal vision,” he writes, “has always been shadowed by the constraints it neglects: the forms of material possibility, structured inequality, political power, media access, and communicative capacity that organize the meaningful distribution of expression and attention in racially ordered capitalist societies.” Aside from unnecessarily limiting his critique to capitalist societies (Lenin imposed strict controls on the press as soon as he came to power, as regimes across the political and economic spectrum have done and are doing), Titley makes a valid point. There has always been something abstract and pristine about the Holmesian notion that we exchange our ideas in a free and unconstrained market where truth will inevitably emerge from the clash of ideas openly expressed by all sides. The ability to be heard and compete for recognition has never been conducted on a level playing field and has always been subject to “market constraints” Titley mentions and, one might add more explicitly, severe economic, racial, and gender disparities across society.
But Titley goes much further. He argues that racism — and by the end of the book, he includes sexism and homophobia — is a categorically false and discredited idea that does not deserve to be treated as free speech, just as the Holocaust, eugenics, or the flat earth theory should no longer be debated. If free speech is based on the pursuit of truth and racism is universally known to be false, then there is nothing further to pursue, and racism is automatically disqualified from its status as free speech. If free speech is based on the power of reason to identify what is good for society, which people and governments should endorse and nurture, then because racism is irrational, invalid, and incoherent, it is not entitled to the protection of free speech.
Titley is explicit and unequivocal on this point. He argues that “opposition to far-right speakers is based on a rejection of the idea that racializing discourse should be treated as debatable in societies and contexts where it acts in and on the lives of its targets.” He considers it key to his argument that “because fascist speech is action oriented toward furthering a violent politics of domination, there is no possibility of democratic debate. Instead, all forms of fascist activity constitute attempts at mobilization which must be defeated before they achieve traction.” He endorses an observation in Antifa: The Anti-Fascist Handbook (2017) that “[i]nstead of privileging allegedly ‘neutral’ universal rights, anti-fascists prioritize the political project of destroying fascism and protecting the vulnerable regardless of whether their actions are considered violations of the free speech of fascists or not.”
When it comes to racists speaking on campus or at other forums, Titley approves of tactics such as “blocking,” “disruption,” and “no platforming.” Titley awkwardly claims that to “block is not to stem the transmission of ideas, but to stymie the cumulative force of ritual, drawing attention to the conditions of reception required for racism’s successful reproduction.” He argues that “to play the roles allotted by the ritual is to refuse the postracial licence increasingly accorded to racializing discourse under the sign of civil debate.” He defines the roles allotted by “ritual” as allowing a speaker to speak without cancellation, interruption, or disruption.
There is no question that Titley presents a consistent and elaborate argument grounded in a compassionate and genuine sympathy for the victims of racism. But his argument is deeply flawed, beginning with the elemental obligation of defining what he’s talking about. While everyone, including Titley, has their own working definition of “racism,” in a book whose essential purpose is to eliminate an entire classification of speech from public discourse, the author has a special responsibility to define what he means by “racist speech.” He is advancing a very serious project of categorically excluding what he calls “racism” from the protections afforded to the universal notion of free speech. But what ideas, ideologies, practices, and policies are encompassed within Titley’s definition of “racism” which are sufficiently false, discredited, irrational, and beyond the pale to no longer deserve to be debated? What ideas, ideologies, practices, and policies should be blocked, canceled, or disrupted? Titley never says.
In just a moment of reflection, a number of possibilities come to mind which might — or might not — qualify to be blocked, canceled, disrupted, or placed beyond the realm of debate in a world controlled by the speech regime Titley recommends: Is it racist to counter “Black Lives Matter” with a demand that “All Lives Matter”? Is it racist to call racial sensitivity training “divisive anti-American propaganda”? Is it racist to label Critical Race Theory “cult indoctrination”? Is it racist to deny that America is inherently a racist country? Is it racist to complain about multiculturalism, ethnic studies, and identity politics? Is it racist to claim that there is more Black-on-Black crime compared to police shootings of unarmed Black men? Is it racist to argue that affirmative action programs constitute reverse discrimination against whites? Is it racist to object to reparations? Is it racist to prohibit the teaching of the New York Times 1619 Project in public schools? Is it racist to deny the existence of white privilege and white fragility? Is it racist to deny that systemic racism exists in law enforcement? Is it racist to demand that athletes salute the American flag rather than take a knee? Is it racist to oppose the removal of Confederate statues? And so on.
Remember, to deem the expression of any or all of these ideas “racist” under Titley’s free speech regime is to exclude them from any further debate and to allow them to be blocked, canceled, or disrupted when (or even before) they are uttered. This is the essential problem with Titley’s book. If after 155 pages he is proposing something else, what is it? A book fails when a careful reading leaves a reader in such a quandary.
And there are other problems with his arguments. Titley bridles at the suggestion that anti-racists are trying to “censor” racist speech, but his entire argument — placing certain speech beyond debate and allowing it to be blocked, canceled, and disrupted — validates that very suggestion. Long passages from his book, some of which are quoted in this review, will be Exhibit A the next time Richard Spencer or other alt-right speakers accuse anti-racists of seeking to suppress what they have to say. This only serves to play into the white supremacists’ hands, further solidifying their claim to the hallowed role of Defenders of Free Speech.
Titley also makes the mistake committed by other proponents of limiting free speech: He never does the heavy lifting of explaining who is going to decide what is debatable and what should be blocked, canceled, or disrupted. He offers a few half-hearted disclaimers that legal or governmental restrictions are beyond the scope of his book. So then what? In the university setting, who will decide what is debatable and what should be blocked, canceled, or disrupted? The administration? Faculty? Students? And regardless of who is on “the committee,” by what reasonable and objective standards would speech be deemed “racist” and therefore beyond debate and suitable for blocking, canceling, or disruption? One hundred years of Supreme Court interpretation of the First Amendment, involving thousands of scholars, judges, and advocates, has never been able to devise such a definition that passes constitutional muster bound by requirements of fair notice, due process, and the prohibition on content-based prior restraints.
A related problem that Titley ignores is whether commentary, criticism, and condemnation of racist speech would itself fall victim under his regime. Would the portions of his own book where he quotes racist speech need to be redacted to prevent the spread of these discredited ideas by the very practice of “repetition,” which he criticizes? Would portions of this book review fall afoul of Titley’s proscriptions? And given the subtleties of language and argumentation, how would “the committee” ever be able to distinguish between condemnation and criticism, not to mention all the shades of opinion in between. Titley’s free speech regime would have unintended consequences, especially in classrooms, town halls, political debates, or other forums where the use of “devil’s advocacy” is a tried-and-true method of exposing the fallacies of racism.
Titley’s book is the biggest advertisement for the classic liberal approach, which he himself belittles — more speech, not less — developed by Justice Louis Brandeis. The first Jew on the Supreme Court, Brandeis was personally familiar with racist speech, having been subjected to a scurrilously antisemitic confirmation process in the US Senate in 1916. Without harboring any delusions that the opportunities for free speech were equitably and fairly distributed through society, Brandeis nonetheless believed deeply that instead of suppressing hateful or offensive speech, the best remedy was the use of more speech to refute, dismantle, and condemn such speech, thereby exposing and discrediting it and promoting a vision of equality and justice in its place.
Finally, Titley ignores perhaps the greatest threat his regime poses for his ultimate goal of eradicating fascism, racism, sexism, homophobia, and other systems of invidious oppression. Let’s imagine Titley succeeds in establishing his regime at college campuses, libraries, city councils, state legislatures, and eventually Congress, installing “committees” at every level of public and private life to designate certain ideas, ideologies, policies, and practices, beyond debate and therefore subject to blocking, canceling, and disruption. With these standards and procedures solidly in place, ratified and endorsed all the way to the Supreme Court, occupied by justices firmly in Titley’s camp, what if the membership of “the committees” were to change? What if white supremacists took control first at a few universities here and there, then a few libraries here and there, then more and more cities councils and state legislatures, and eventually Congress, the White House, and the Supreme Court? Now in control, they remember only too well the one-sided rules and procedures established under the Titley regime that had systematically suppressed their racist truths. Based on precedent, the new “committees” promptly declare anti-racist ideas “beyond debate” and proceed to systematically block, cancel, and disrupt them because they are false and anti-American “propaganda.” Without the classical liberal First Amendment protections for free speech that we rely on today, the content-based Titley regime would allow anti-racist ideas to be placed beyond debate and subject to blocking, canceling, and disruption.
This is what the famous scene in A Man for All Seasons was all about. When William Roper asks Sir Thomas More if he would “give the Devil the benefit of law,” More readily replies, “Yes! What would you do? Cut a great road through the law to get after the Devil?” Roper fires back: “Yes, I’d cut down every law in England to do that!” Without a pause, More declares:
Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
Despite its flaws and inequities, the strength of the classical liberal tradition of free speech lies in its protection for all ideas, no matter how odious or offensive, giving the Devil the benefit of that protection for the sake of protecting ideas with which the rest of us agree.
One of the most compelling refutations to calls to prohibit hate speech was made by Aryeh Neier, former executive director of Human Rights Watch. He was born in Nazi Germany and became a refugee when his family fled in 1939 when he was two years old. He was also national director of the ACLU at the time of the Skokie controversy, when the ACLU defended the right of American Nazis to conduct a nonviolent march in that predominately Jewish community. What he wrote in his book Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom (1979) is worth quoting in full:
Because we Jews are uniquely vulnerable, I believe we can win only brief respite from persecution in a society in which encounters are settled by power. As a Jew, therefore, concerned with my own survival and the survival of the Jews — the two being inextricably linked — I want restraints placed on power. The restraints that matter most to me are those which ensure that I cannot be squashed by power, unnoticed by the rest of the world. If I am in danger, I want to cry out to my fellow Jews and to all those I may be able to enlist as my allies. I want to appeal to the world’s sense of justice. I want restraints which prohibit those in power from interfering with my right to speak, my right to publish, or my right to gather with others who also feel threatened. Those in power must not be allowed to prevent us from assembling and joining our voices together so we can speak louder and make sure that we are heard. To defend myself, I must restrain power with freedom, even if the temporary beneficiaries are the enemies of freedom.
Neier’s powerful and compassionate comments reflect the words of the Seventh Circuit Court of Appeals in its decision in Collins v. Smith, upholding the right of the Nazis to march in Skokie:
[O]ur task here is to decide whether the First Amendment protects the activity in which appellees wish to engage, not to render moral judgment on their views or tactics. No authorities need be cited to establish the proposition, which the Village does not dispute, that First Amendment rights are truly precious and fundamental to our national life. Nor is this truth without relevance to the saddening historical images this case inevitably arouses. It is, after all, in part the fact that our constitutional system protects minorities unpopular at a particular time or place from governmental harassment and intimidation, that distinguishes life in this country from life under the Third Reich.
In Confessions of a Free Speech Lawyer, Rodney Smolla takes the accusation that free speech enables racism very personally. That explains his repentant title. He has spent his entire legal career teaching, practicing, and defending the First Amendment. Among many books and scores of articles on free speech, Smolla has been the editor of the legal treatise Smolla and Nimmer on Freedom of Speech since 1996 and the author of the casebook The First Amendment: Freedom of Expression, Regulation of Mass Media, Freedom of Religion since 1999. In 2002, he represented a Ku Klux Klan leader in the case of Virginia v. Black in which the US Supreme Court ruled that a cross-burning statute was unconstitutional. In the aftermath of the violent and deadly Charlottesville “Unite the Right” rallies three years ago, Smolla was appointed by Virginia Governor Terry McAuliffe as special advisor for First Amendment issues on a task force created to investigate what happened during those bloody confrontations.
Did free speech kill Heather Heyer on August 12, 2017? Smolla is haunted by that question. Blame has been cast on many for her death, starting with James Alex Fields Jr., who drove his car into her and later pled guilty to 29 violations of federal hate crimes, for which he received a sentence of life in prison, plus 419 years and a $480,000 fine. Blame has also been cast on the white supremacists who planned and carried out the violent rallies. Others blame lax and ill-prepared Charlottesville and University of Virginia law enforcement. But Smolla is distraught by those who argue that “a piece of the blame should be placed on the First Amendment and the marketplace theory of free speech, which treated hate speech as free speech.”
I took this last criticism particularly personally, since I had long been, as both a scholar and a courtroom advocate, a champion of expansive protection for free speech. Was I, in some sense, personally complicit in Heather Heyer’s death, and in the deaths of thousands of others killed by radicalized extremists who bought into the wild “white genocide” conspiracy theories that fueled the Unite the Right rally and other episodes of hate and violence around the globe?
To answer that question, Smolla weaves together two important strands in his highly engaging book. He presents an engrossing chronicle of what led up to the horrific Unite the Right rallies of August 11 and 12, 2017, and the soul-searching that took place in their aftermath. Meanwhile, he interlaces an excellent analysis of First Amendment history and case law. Both threads, skillfully woven together, are illuminating and make for a captivating account suitable for laymen and lawyers alike.
Smolla’s lucid explanation of the two major theories of free speech in the American legal system that have jostled for preeminence for over 220 years should be required reading for anyone who deigns to express an opinion on free speech. He labels them the “order and morality” theory and the “marketplace of ideas” theory. Neither is mentioned in the First Amendment, which simply declares, in relevant part, that “Congress shall make no law […] abridging the freedom of speech, or of the press; […] or the right of the people peaceably to assemble…”
As Smolla explains it, the order and morality theory, which largely tracks Titley’s approach, “is grounded in the notion that freedom of speech cannot be elevated above the ‘social compact’ that binds us as a society.” A “stable, decent, and just society may call on its citizens to obey certain elemental precepts of order,” reflected in admonitions such as “thou shall not kill,” or “thou shall not wage war against the government.” Likewise, our society “may also call on its citizens to respect certain precepts of morality,” exemplified by the principle that “thou shall not degrade or debase a person based on the person’s racial, religious, or sexual identity.” Consequently, the order and morality theory “posits that freedom of speech, while important, remains subordinate to values of order and morality,” and “[s]peech that undermines order and morality may be punished by laws enacted through the democratic process.” In short, freedom of speech “is not freedom to subvert order and morality.”
As Smolla explains it, the marketplace of ideas theory is the very opposite. “It is grounded in the notion that democracy is subordinate to free speech,” and that the “test of truth and morality should be the power of a thought to win in the competition of the marketplace of ideas.” This should be an ongoing and unfettered competition, “outside the heavy-handed authority of the law.” Laws enacted by a majority vote “may not suppress expression merely because that expression is deemed an affront to prevailing views of good order and morality,” because the “government has no authority to declare political truth or orthodoxy.”
For over 150 years, the order and morality theory of free speech held sway in the United States, with the courts largely allowing Congress and state legislatures to pass laws without questioning whether they ran afoul of the First Amendment. To be sure, there were dissenting views that began to question whether the government had unchecked power to dictate what people could say, write, or read. Indeed, it was in dissent in a case in 1919 that Justice Oliver Wendell Holmes Jr., joined by Justice Brandeis, first introduced the “marketplace” metaphor. He wrote that
the ultimate good desired is better reached by a free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment.
The shift away from the order and morality model toward the marketplace of ideas model began to develop in earnest in cases such as West Virginia State Board of Education v. Barnette in 1943, in which Justice Robert Jackson wrote, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” In the subsequent 75 years, the Supreme Court has repeatedly adopted a broad reading of the First Amendment, protecting a wide array of controversial, offensive, and hateful speech from government censorship.
Smolla recounts that as “a young free speech lawyer and litigator, I was once an unabashed and unapologetic zealot for the marketplace theory.” But quoting Joni Mitchell’s “I’ve looked at life from both sides now,” he admits that he now sees “the battle of ideas as excruciatingly close, and for me the Charlottesville events made the choice even more excruciating. I am sure I am not alone.”
Smolla introduces us to Leslie Kendrick, who is Jewish and a distinguished First Amendment scholar. She is the vice dean and a professor of law at the University of Virginia Law School and lives in Charlottesville. According to Smolla, in the aftermath of the Unite the Right rallies in her hometown, Kendrick took a hard look at her traditional defense of free speech. Skeptical of the marketplace rational, she questioned whether suppressing or protecting extremist speech strengthens or weakens such speech. Ultimately, Kendrick “comes down in favor of the modern protection of hate speech, as better than any plausible alternative.” He summarizes her conclusion this way:
Preventing government from deciding what speech is worthy of protection and what speech is not poses major problems of legitimacy, and the nation has a less than stellar track record in that regard. Modern marketplace of ideas principles exist to shelter unpopular views from the power of majorities. As Kendrick points out, this “is true whether the unpopular belief in question is white supremacy in 2017 Charlottesville or equality in 1964 Birmingham.”
Lest it be assumed that over time the marketplace theory has only been used to protect racist and hateful speech, Smolla shows how it has been employed to protect various progressive ideas, such as opposition to the Vietnam War and protests against Ronald Reagan. In 1971, the Supreme Court overturned the conviction of a California man who had been convicted of “tumultuous and offensive conduct” for wearing a jacket bearing the phrase “Fuck the Draft” in the corridor of a Los Angeles courthouse with women and children present. “In an opinion by Justice John Marshall Harlan,” Smolla explains, “the Supreme Court rejected California’s claim that it could use the law to preserve decency and decorum in society by banning public vulgarity and sheltering citizens from offensive language.” And in 1989, the Supreme Court overturned the conviction of Gregory Lee Johnson who had been convicted of burning the American flag at a rally in front of the Republican National Convention in Dallas, Texas, protesting Reagan, the military, nuclear war, and corporate America. Speaking for the court, Justice William Brennan declared “that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
At the conclusion of his book, Smolla returns to the questions that have haunted him from the start: Is the contemporary First Amendment principle that hate speech is free speech to blame for the violence and death in Charlottesville three years ago, and do free speech lawyers like himself share that blame? There is no doubt that Charlottesville has prompted Smolla to engage in serious soul-searching. He is now convinced by those events that “the marketplace theory cannot be defended on the naïve faith that allowing free speech to remain unfettered leads to the triumph of truth in the marketplace.” Sometimes it does, and sometimes it doesn’t. “Often, as in the case of the irrational and hate-filled conspiracy theories of the far right,” Smolla writes, “freedom of speech leads to the proliferation of death and destruction.”
Nevertheless, Smolla comes to the conclusion that the marketplace theory is “the best of the bad options.” First, it does not result in protection for any and all speech because the Supreme Court has consistently held that the First Amendment is not absolute. “It protects speech that is only hateful, but it does not protect hateful speech that is also a true threat, an incitement, or part of a conspiracy to engage in either threats or incitement.” Indeed, on July 9, 2018, US District Judge Norman Moon held that the First Amendment did not prevent 11 plaintiffs injured in the 2017 Unite the Right rallies from proceeding to trial against several individuals and organizations accused of conspiring to commit violence in Charlottesville in violation of the federal Ku Klux Klan Act.
Consequently, according to Smolla, “despite all its shortcomings, the marketplace theory largely works. It protects evil abstract advocacy, as it is designed to do” without placing society in “a straitjacket.” When “proof of actual conspiracy to incite violence and intimidate exists,” Smolla writes, “the rules of the marketplace theory permit accountability.”
As Smolla sees it, the “Achilles’ heel of the order and morality theory is that it can only work if the government is empowered to decide when society’s norms of order and morality have been transgressed.” This inevitably means that we must “trust the government to make these decisions wisely.” In the end, “the defense of the marketplace theory is that government cannot and should not be trusted with the power.”
With Titley arguing that certain ideas, ideologies, practices, and policies are so false, discredited, irrational, and beyond the pale that they deserve to be blocked, canceled, or disrupted, and Smolla holding fast to the principle that short of true threats, incitement, or conspiracy, the First Amendment protects racist, sexist, homophobic, and other hateful and offensive speech, is society left powerless to deal with the toxically polluted public discourse that these authors agree exists?
Into this breach Suzanne Nossel offers us a path forward in her innovative book, Dare to Speak: Defending Free Speech for All. Nossel is deeply concerned that the “state of discourse in America today raises a troubling question of whether the principle of free speech can survive intact in our diverse, digitized, and divided culture.” She shares Titley’s concerns that talking about free speech is hard because “the speech that gives rise to such conversations is unpopular, offensive, dangerous, or otherwise contestable.” She hopes that her book will help people, when confronted by free speech issues, not “to follow the crowd, nod along with outraged friends, or change the subject.” Instead, Nossel wants people to “enter into dialogue about why free speech matters and how it can be protected without running roughshod over values of equality.” Nossel accepts Titley’s premise that free speech enables the spread of racism and other objectionable ideas, but she proposes remedies which are far different from his.
Dare to Speak is actually a practical handbook that offers 20 specific principles to help everyone “rise to the defense of free speech in ways that avoid simply fueling controversy and instead help rally others to the cause.” Fortunately, Nossel pulls this off in a very engaging fashion, looking at the responsibilities we bear living in a diverse society when we speak, when we listen, when we debate, and when we address laws, regulations, and social media company practices. Nossel is convinced that public support for free speech will increase as people feel that their own speech is respected and public discourse is characterized by greater civility.
While her 20 principles could have read like platitudes, Nossel is adept at exploring them more deeply and illustrating them with spot-on examples. She develops the adage “watch your language” into a more sophisticated call for linguistic conscientiousness. She encourages speakers to understand that the meaning of words and phrases is not universally shared; we must strive to keep abreast of how language and usage are changing, and we should assume our audience encompasses a wide range of experience and viewpoints. She also cautions that all speakers have a “duty of care” to do their homework first to understand how what they say may be heard differently by different audiences and not to assume their speech is private, especially when using email and social media. She suggests that by keeping an open mind, you can make space in “your information diet” for alternative viewpoints and sources, and you can develop the strength when appropriate to offer a prompt, sincere, self-reflective apology that does not deflect blame or make excuses. Nossel emphasizes that these norms — this linguistic conscientiousness — does not mean self-censorship but in fact enables us not only to express strongly held ideas and opinions but also to improve our chances of persuading others to more readily consider what we have to say, and, in many cases, come to agree with us.
Nossel also counsels that we need to become better listeners by delaying a response until we have seriously considered the intent and context surrounding what has been said or written. If there is ambiguity, we should offer the speaker the benefit of the doubt and investigate before responding; consider the culture and the setting in which something is said; and resist applying “strict liability,” recognizing that something that appears offensive at first blush, may not have been intended in that way.
Nossel explains that there are times to “call in” (with a private reproval) and times to “call out” (with a public response). She recommends calling in when the offense appears inadvertent or unintended, the speaker is open to correction, the potential harm can be prevented or ameliorated, and when there is a trusted relationship with the speaker. Calling out is justified when behind-the-scenes efforts have failed, the speaker has a track record of deliberate provocation, the offense is highly public and therefore demands a public response, the speaker intends to cause harm or has already caused harm, and a shared taboo has been breached and warrants reinforcement. In all this, one bears a special responsibility as a classroom teacher, a panel moderator, or someone in a position of higher authority.
When it comes to the attempted regulation of hate speech, Nossel has been paying close attention to the debate exemplified by the competing views of Titley and Smolla. To “have doubts about new government restrictions on hate speech,” she writes, “does not imply callousness toward loathsome invective.” Those who are “legitimately anguished over the rise of hateful speech” need to be persuaded that “free speech is not their enemy,” while those who oppose censorship need to be persuaded that “active, effective resistance to hateful speech and crimes is essential.” To fend off new curbs on speech, Nossel argues that “it is essential to demonstrate that there exist viable, constitutional measures to combat hateful speech and prevent hate crimes.”
Nossel distinguishes hate crimes from hate speech. According to the FBI, a hate crime is “a traditional offense like murder, arson, or vandalism with an added element of bias” motivated in whole or in part “by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.” Hate speech is the expression of any form of bias not accompanied by a crime motivated by such bias. Hate crimes can involve speech tied to a clear-cut criminal act such as an assault or vandalism or where the speech crosses the line into action, such as a death threat or harassment. To emphasize the difference, the FBI notes that “[h]ate itself is not a crime — and the FBI is mindful of protecting freedom of speech and other civil liberties.”
Nossel is very clear, and indeed even more descriptive than Titley, that hate speech — slurs, insults, stereotypes, bigoted symbols — causes real harm, including engendering feelings of fear, scapegoating, intimidation, inferiority, and stigma, and wider social effects, including stimulating, legitimizing, and provoking violent or criminal actions, as well as stoking divisions and undercutting the security and well-being of the larger community. She cites several studies documenting these harms, culminating in a meta-study conducted by the University of California San Francisco Medical Center which found that “[t]he mental and physical health consequences of perceiving and experiencing discrimination or bias due to some aspect of the self that can be negatively judged appears to be persistent and pervasive.” Nossel’s discussion on the harms of hate speech thoroughly refute the schoolyard retort that “sticks and stones may break my bones but words can never hurt me.”
Yet Nossel cautions against going in the other direction, exaggerating claims of harm by speculating, inflating, conflating, or projecting onto others. She also is highly critical of “a surprising number of influential voices [who] seem ready to treat ugly speech as akin to physical violence.” Speech “is never the same as physical violence, nor a justifiable provocation for it.” As Nossel sees it, “Collapsing the time-honored distinction between speech and action would erode the rule of law, chill speech, upend long-held legal and social arrangements, and invite violence in response to verbal provocation.”
The core of Nossel’s project is to offer tools and tactics under the general rubric of “counterspeech” to undermine, diminish, and eliminate the “hate” in “hate speech,” first because it’s the right thing to do and then because it relieves pressure to enact government controls on speech. She discusses a wide array of methods, including pointing out facts to dispute misstatements and misperceptions; spotlighting hypocrisy and contradictions; warning about the consequences of speech; relating personally to the speaker or the target; opposing the speech rather than the speaker; using humor, empathy, or sometimes denunciation; deleting and not forwarding; eliciting supportive counterspeech from bystanders; and more.
Nossel recommends the work of the Dangerous Speech Project (DSP), an organization focused on mobilizing more effective responses to the most menacing speech. In a 2016 study, DSP found that the use of the foregoing tactics, though hardly foolproof, can in the best of circumstances lead to “golden conversations,” in which extended exchanges (usually between two people) bring about lasting changes in beliefs. More commonly, counterspeech succeeds incrementally especially where it comes from persons in authority for whom speakers have respect or who are respected within the speaker’s community or circle of influencers. In those situations, the counterspeech is effective because it authoritatively refutes invidious claims; conveys that toxic messages are rejected writ large; isolates and stigmatizes the speaker; offers a unifying rallying cry for those who oppose the message; and supports those who feel targeted. In its work, DSP supports free speech “because it is a fundamental human right — and also because silencing people can make them more likely to resort to violence, if they have no peaceful way of expressing and resolving their grievance.” This has been called the “safety valve” benefit of free speech — letting off steam to prevent an explosion.
In the long run, Nossel recommends that “the best solution to hatred is to root it out” through “education, dialogue, and exposure to diverse groups and populations.” She points to “comprehensive anti-bias programs in schools, including curricula, staff and faculty professional development, student leadership training, community forums, and forceful response to bias incidents.” In addition, direct human encounters replace stereotypes, including “[i]nterracial dialogues, interfaith efforts, LGBT-straight alliances, and a range of other formats.”
Nossel also recommends stronger hate crime reporting and law enforcement. She cites a 2019 report of the International Association of Chiefs of Police and the Lawyers’ Committee for Civil Rights Under Law which recommended “beefed-up training for law enforcement and community activists, more rigorous data collection and analysis, and augmented collaboration among police, prosecutors, and community organizations.”
Nossel believes that opponents of racism and other forms of bigotry should engage in more effective acts of protest which do not silence, ban, disrupt, or cancel their opponents, including walking out; turning your back; displaying signs, banners, silent gestures, satirical costumes and images; posing tough questions; and protesting outside a venue loudly, boisterously, and nonviolently.
Nossel is alarmed that several recent surveys indicate that just as millennials (born between 1981 and 1997) and members of so-called Generation Z (born between 1995 and 2010) are becoming more liberal and progressive and more supportive of racial and gender diversity and inclusion, they are more willing to accept government regulation of speech. Generally, they place far lower priority on free expression relative to social justice concerns, seeing these values in conflict with one another rather than being allied in the struggle for a just and equal society. Her concerns are worth considering at length:
If younger Americans come to believe that the First Amendment is a tool of white, male-dominant culture, long-standing protections for speech may give way over time. In the long run, those who have the greatest to lose from a withering of free speech norms are those most vulnerable to government suppression of speech, or to being shouted down by the mob, namely the powerless and voices of dissent. It would be ironic for those whose voices are in greatest danger of being silenced to lead the charge to dismantle the norms and principles intended to guarantee them their say.
She quotes President Barack Obama in a 2016 commencement address at Rutgers University where he criticized the university’s decision to give in to student protestors and cancel the planned graduation speech by former secretary of state in the Bush administration Condoleezza Rice. “If you disagree with somebody,” Obama said,
bring them in and ask them tough questions. Hold their feet to the fire. Make them defend their positions. If somebody has got a bad or offensive idea, prove it wrong. Engage it. Debate it. Stand up for what you believe in. Don’t be scared to take somebody on. Don’t feel you got to shut your ears off.
Nossel is very clear that free speech concerns “should neither be allowed to distract from questions of racial equality nor take a deferential backseat to them.” The challenge of “realizing a society dedicated to both is to articulate how they interact and can reinforce one another.” Speaking directly to Titley, Nossel writes that while “free speech can be invoked cynically, it is not the wellspring of bigotry or racism. Those evils derive from history, belief systems, socialization, power structures, fear and other sources.” While free speech principles sometimes safeguard bigots from certain forms of reprisal, Nossel firmly believes that “to blame ‘free speech’ for social and racial inequality, or suggest that curtailing free speech will somehow redress these ills, is a red herring.” In fact, Nossel argues that “free speech is essential to enable the bracing and confrontational protests, demands, and debates that have historically been the engine of equality.”
Nossel balances her strong defense of free speech with a refreshing critique of the marketplace theory. Free speech defenders, she writes, must “consider what it would take to create a marketplace for speech in which everyone is an equal participant.” Citing Ibram Kendi’s seminal 2019 book How to Be an Antiracist, she identifies the “educational, cultural, historic, and other forces that dictate who enjoys important outlets for speech — publishing contracts, newsroom jobs, public speaking slots, plum jobs, and opportunities to make art or films,” as well as the “myriad forms of mentorship, recognition, and acclaim with the power to raise visibility and propel expressive careers.” Access to these advantages “is shaped by the forces of inclusion and exclusion that pervade society at large, including racism, sexism, and other forms of discrimination and inequity.” Kendi argues that it is not enough to be nonracist; individuals and institutions must be explicitly anti-racist, meaning “that they are working assiduously to dismantle, reverse, and reinvent the forces of racism that pervade society.”
Nossel challenges her free speech allies to insist on, and work for, “the eradication of constraints, biases, and inequities that make speech freer for some than others.” If free speech is premised on robust give-and-take, she insists that “exclusion and underrepresentation in such debates impoverish the deliberation and compromise the result.” Finally, “when free speech is seen as benefiting only the powerful, it becomes discredited as a tool of privilege.” Instead, free speech and its defenders need to be seen as allies in the struggle to eliminate racism, sexism, homophobia, antireligious bias, and prejudice.
To that end, Nossel presents a program to spend more effort enabling the speech of those who have been silenced and marginalized together with the traditional work of constraining limits on speech. On a personal level, she recommends a range of methods to welcome participation at the Thanksgiving table, a business meeting, or a classroom discussion, making space for those who are too shy or intimidated to speak, or using “progressive stacking” which prioritizes excluded groups who are all too often drowned out by traditionally male-dominated settings.
Another idea is “centering” and “decentering.” “The notion is that white voices, ideas, and institutions have long occupied center stage in American society, and that it is important to now center people of color and their narratives as a way to upend traditional hierarchies that impair equality.” Some of these hierarchies are so entrenched we easily overlook them. The prevalence of all-male panels in academia, business, and civic society led some to label them “manels” prompting intentional efforts to diversify such gatherings.
As an example of what is being done on a more institutional level, Nossel identifies five literary organizations that are expanding opportunities for expression, including Cave Canem (African American poetry), Kundiman (Asian American creative writing), Lambda Literary (LGBTQ writers), Vida — Women in Literary Arts (women reviewing books and essays), and Asian-American Writers Workshop (supporting writers and curating events).
Nossel concludes her book by tackling the quarrelsome issue of online free speech. The size of the digital public square is immense. Seventy-two percent of American adults use some form of social media, and 68 percent rely on social media as a main source for news. Among young adults, the proportions are even higher. Five billion videos are viewed on YouTube and 500 million tweets are posted every day — every day! The public increasingly demands that these platforms monitor all this content. Consequently, Facebook, YouTube, and Twitter have established Community Guidelines that provide standards of what the platforms permit and forbid when it comes to nudity, violence, hate speech, and other contentious content. Social media sites rely on tens of thousands of “content moderators” who are usually low-wage individuals employed by outside contractors, poring over endless streams of explicit, violent, and disturbing messages in depressing work conditions. They often suffer from panic attacks and even post-traumatic stress disorder, and some, after prolonged exposure, even eventually embrace the very fringe views they are monitoring.
Compounding the problem, the standards used to monitor content are labyrinthine and illogical, confirming the fears of free speech defenders who complain about the unintended consequences once someone in authority assumes the power of restricting speech. At one stage, Facebook’s official policy protected “white men” from hate speech (since both race and gender are protected characteristics) but not “black children” (since age is not a protected trait). A post by US representative Clay Higgins calling for the murder of radicalized Muslims was allowed to remain online, while a post by a poet and Black Lives Matter activist saying, “All white people are racist” was removed. A 2016 study found that Islamic State accounts on Twitter were subjected to frequent disabling and removal, while white nationalist accounts were allowed to post with little disruption. YouTube removed a video channel tied to California State University San Bernardino’s Center for the Study of Hate and Extremism — a channel educating users about bigotry, not promoting it. YouTube also pulled a series of videos depicting fighting dinosaur robots because they showed “deliberate infliction of animal suffering or the forcing of animals to fight.” This is all a baffling laboratory experiment exposing the problems that would confront any state or federal government agency, university, or other “speech control committee” that assumed the power to block or cancel free speech.
Another serious problem Nossel identifies is that profit-driven market considerations influence content decisions. In 2018, Twitter earned $3 billion, Facebook $56 billion, and Alphabet (Google) $137 billion. To attract and keep users and increase engagement, ad dollars, and transaction revenues, “the platforms favor gripping content, including surprising, shocking, up-to-the minute posts with the potential to go viral.” According to Nossel, a major 2018 study conducted by the Massachusetts Institute of Technology found that on Twitter, “falsehoods consistently travel farther and wider than truthful posts, undercutting the incentive for traffic-hungry content czars to crack down on misleading information.”
In the face of these daunting problems with social media, Nossel suggests both institutional and personal responses. She recommends a multipronged, multiyear effort based on increased transparency; meaningful accountability for malfeasance and negligence; respect for international human rights law and norms; adequate redress for individuals who are harmed, including through the unwarranted suppression of their speech; and credible and empowered external oversight.
She also endorses the Santa Clara Principles developed by open-expression advocates in 2018 to expand disclosures and enable greater public accountability, including calling on companies to reveal how many posts are removed, provide notice and an explanation if content is taken down or an account is suspended, and to create an accessible appeals process.
On an individual level, Nossel recommends a variety of steps users can take to be responsible online citizens, including following reliable news reports on platform’s products, operations, and terms of service; expressing oneself publicly and within ones circle of influence on issues that matter; asking questions about how the platforms work; voicing outrage when user trust and expectations are breached; reporting content that is unlawful or inconsistent with a company’s standards; not sharing dubious content; and voting with clicks — i.e., rejecting platforms that betray their responsibilities to society.
And one could add: Not believing everything you read online. Many of us were brought up not to trust everything we read in the newspaper. Proponents of imposing restrictions of free speech assume that the public needs a Big Brother to decide what they can see and read because if left to its own devices the public can’t be trusted to make its own decisions. We need to teach and practice critical thinking. We need to “consider the source” and remain skeptical about what we read.
Titley makes the case why hate speech undermines the struggle for equality and should be curtailed. Smolla makes the case why hate speech, short of threats and incitement, deserves First Amendment protection. Nossel makes the case that if defenders of free speech put time and energy into creating opportunities to give voice to those who have been marginalized, society would see that free speech and equality are friends, not foes.
Nossel reminds us that free speech is the foundation for all other rights. “If we did not enjoy the freedom to write, speak, publish, assemble, and protest,” she writes, “the great movements for reproductive freedom, racial justice, environmental accountability, immigrants’ rights, and other essential causes would be hamstrung.” Every major manifestation of social progress, including “passage of civil rights laws, women’s suffrage, environmental protection, gay marriage, and countless other examples” has been driven forward “by the exercise of protected speech: people who voiced ideas that were novel and debatable and used their powers of persuasion to win gradual support.”
Justice Brandeis gets the last word. Writing over 100 years ago, he warned that “the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.” Titley, Smolla, and Nossel have done their duty venturing into this controversial public discussion about free speech. It’s up to the rest of us to sustain that vital discussion, not merely by defending the right to speak, but by ensuring the widest opportunities for those who historically have been silenced.