David Gespass
David Gespass is a former president of the National Lawyers Guild, former Editor-in-Chief of the National Lawyers Guild Review, and current Comtributing Editor of the National Lawyers Guild Review.
I recall the days of my youth when everything was clear, when I knew all the right answers to the most vexing problems facing humanity. Those days are long gone. Bright lines are replaced by ever-expanding gray areas. I almost envy the clarity Erwin Chemerinsky and Howard Gillman express in their new book, Free Speech on Campus, and Nadine Strossen expresses in hers, Hate: Why We Should Resist It with Free Speech, Not Censorship. Chemerinsky and Gillman recognize that private colleges and universities are free to establish whatever speech codes they choose, but argue, based on First Amendment principles, that any such restrictions be minimal. Strossen, on the other hand, addresses the strictures that should be imposed on governmental regulation of speech.
It would be a fool’s errand to debate these eminent authorities on judicial interpretation of the First Amendment’s free speech clause. Collectively – and, likely, individually – their knowledge and understanding of First Amendment jurisprudence is unexcelled anywhere in the country. One may, however, question whether the jurisprudence permits too much, or too little, speech or whether its requirement of imminent threat or fighting words definitively separates protected from unprotected speech.
Both books have substantial merit. They address problems that are roiling the United States, both on campus and generally. Strossen argues her point, encapsulated in her title, carefully, logically and persuasively although, I confess, her penultimate chapter on “Non-Censorial Strategies” for combating hate speech did not strike me as either complete or completely persuasive. Similarly, Chemerinsky and Gillman make cogent arguments about the need for students to confront and debate ideas they are uncomfortable with or even offended by. What I find concerning is that both books tend to pick extreme examples of hypersensitivity and resulting undue censorship rather than grappling with more difficult questions.
For example, Chemerinsky and Gillman assert that “some students expect that a supportive campus environment is one in which their views are not challenged (emphasis added)” and, as well they should, decry that attitude. They argue, “A campus can’t censor or punish speech merely because a person or group considers it offensive or hateful. A campus can censor or punish speech that meets the legal criteria for harassment, true threats, or other speech acts unprotected by the First Amendment.” My concern is that the definition of what constitutes unprotected speech remains unclear. The question they do not answer is what constitutes “harassment, true threats, or other speech acts unprotected by the First Amendment.”
Interestingly, an episode of 1A, the NPR show hosted by Joshua Johnson, aired from the University of Michigan and addressed the struggle over free speech. One of the panelists was Jesse Arm, a senior and Chairman of the American Enterprise Institute’s Michigan Executive Council. Another was Ph.D. candidate Maximillian Alvarez, co-founder of the Campus Antifascist Network. Arm said he chose to attend Michigan in order to be exposed to views other than his, but that he was always being attacked and harassed for his conservative positions he claimed were not tolerated by his professors and classmates. Alvarez responded that he was simply being challenged, which is why Arm said he chose to attend Michigan in the first place. The point is that it is easy to say that diversity of viewpoints and having one’s beliefs challenged is good and that shutting down views one does not like is bad, but determining which is which is no simple task. It is certainly not as simple as Chemerinsky and Gillman would have it.
They also argue that “(a) faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness for his or her position.” They say, for instance, that a professor who expresses sympathy with Nazis or the KKK privately should not face discipline so long as that does not translate into destructive behavior in class. If, for instance, the professor teaches mathematics, those views would be irrelevant to the course material. But one must ask, and the authors do not, could such a professor possibly be fair to African-American or Jewish students. We know that implicit bias affects the ways in which the best-intentioned of us view others. How could explicit bias not be worse?
First Amendment absolutists like these authors argue that all other rights are dependent on the right to free speech. Parenthetically, there is no such thing as an absolute First Amendment absolutist, but I cannot think of a better term. Everyone agrees that some speech cannot be tolerated. People disagree on where the line should be drawn and those I label absolutists simply draw the line somewhat differently than I might. More precisely, they draw the line based on Supreme Court doctrine that only true threats can be proscribed but defining true threat is purely subjective, as the University of Michigan debate highlights.
Beyond that, however, there is, I think, a division between constitutional advocates and human rights defenders. International human rights principles hold that human rights are universal, inalienable and indivisible. That is, a diminution of any right diminishes all and one human right cannot be elevated over others. This, too, is easy to proclaim as some platonic ideal, but is difficult to apply when rights come into conflict. Chemerinsky and Gillman take a different position. They say, “. . . we believe that freedom of expression is an indispensable condition of all other freedoms and deserves a preferred place in our system.” That may be a fair and defensible position but they do not seek to explain their conclusion; they simply conclude and opposing positions are equally fair and defensible. One may well be persuaded they are right, but they merely posit their contention with no acknowledgment that it conflicts with, among other things, international human rights law.
Notably, as well, the description of a particular right as the sine qua non upon which all other rights are dependent is hardly unique to freedom of speech, as these constitutional scholars should know. The Supreme Court said much the same thing about the right to vote. “Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.”1 But much the same can be said about any other human right. The right to speak freely or vote or run for office is pretty hollow for a homeless person living out of their car, so one can just as well say all other rights are illusory if one does not enjoy the human right to adequate housing and nutrition. It is precisely for this reason that human rights advocates refuse to establish a hierarchy of rights and it is perhaps their contention that free speech is somehow transcendent that is my fundamental concern with these authors. That argument, which they make without proof, creates a hierarchy of rights (or at least one right), thus not dealing with, much less resolving, the very difficult questions that arise when rights come into conflict.
Strossen cites with approval the successful ACLU defense of the proposed Nazi march through the streets of Skokie, home to many Holocaust survivors. Courts had little trouble saying that the right of the Nazis to march and express their abhorrent beliefs had a “preferred place” vis-à-vis the feelings of Skokie’s residents. Strossen would argue that was so because the march did not threaten imminent harm (she also argues that, in retrospect, it had other positive effects, but that is not the point here). Again, one can make that claim, but consider how many of the Skokie residents may have suffered from PTSD and how utterly destructive to their well-being it would have been to see marchers parading through the streets where they lived brandishing swastikas. Courts have not been shy to require protesters at women’s clinics providing reproductive services to stay a certain distance away from entrances. One might say such injunctions are to prevent violence, but it is equally true that women seeking abortions have a basic right, as Samuel Warren and Louis Brandeis argued, to be let alone.2 The right of protesters to protest needs to be balanced against such rights as the right to be let alone and the right to an education. My issue with these authors is not that they are necessarily wrong, but they do not recognize how delicate that balance is. Again, it is easy to advocate for any right in the abstract. But the exercise of a particular right – and certainly the right to engage in controversial speech – inevitably raises the danger that it will come into conflict with some other right. It is simply too facile to say that free speech trumps everything short of a true threat.
The most persuasive argument both books make is that, to paraphrase Winston Churchill (loathe as I am to venerate so repugnant an individual), permitting the expression of repulsive views is the worst possible means of combating those views except for all the others. It is, indeed, a slippery slope to pick and choose what speech is permissible and what is not. Saying that harassment and true threats are not permissible provides a guideline rather than a bright line. Other criteria may well do the same. Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) states:
States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:
(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;
(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;
(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.
One may well ask why these requirements are any less specific or appropriate than the requirement of harassment or true threat. Yet the authors find the latter clear and appropriate and the former an unlawful and undesirable infringement on freedom of expression. To be fair, Strossen recognizes that “no statutory wording can eliminate all ambiguities (and) First Amendment law therefore recognizes that some degree of vagueness and overbreadth is unavoidable. . .” Yet, she finds Supreme Court doctrine acceptable but not the proscriptions contained in CERD, because the latter is necessarily vague, overbroad or both.
Strossen argues that prohibitions on racist and hateful speech have proven ineffective. She cites the rise of the National Front in France and right-wing extremist violence in Germany as evidence. Again, she may be right but the fact that hate speech laws in Europe have not eradicated racism and xenophobia there is not proof that they are ineffective. One need only look to the United States and Donald Trump’s presidency for a counter-argument. Trump’s rhetoric has certainly unleashed a rising tide of racist violence and activity here. One can only speculate on whether laws prohibiting the most blatant of Trump’s lies, such as Muslims in New Jersey celebrating the 9/11 attacks, would have made a difference, although post-Trump racist and fascist rhetoric is far more prevalent and public now than it was before. What is clear is that the rise of right-wing “populism” in European countries where laws against such speech existed corresponds to its rise in the United States, where that populism led Trump to the presidency and a compliant Congress to stop criticizing him for even his most revolting proclamations.
To be clear, if there is ever a choice between allowing or prohibiting certain speech, my inclination is to the former. In particular, as the authors all point out, prohibitions and restrictions on speech have far more often been used to suppress the left than the right. Of course, as with so many things, the gains won by progressives and radicals in securing greater freedom of speech are now being usurped by the right and corporate monopolies. We can certainly expect that to be the case in the future and, indeed, Trump has threatened as much. The arguments the authors make for more, rather than less, speech on campus and in society generally are cogent and deserve serious consideration. They cite disturbing, if extreme and uncommon, examples of suppression going too far.
There are those who can be persuaded they are wrong. That can only happen when they are challenged with a level of respect, if not for their opinions, at least for their sincerity. There was a time in my life when I had no tolerance for those who disagreed with me on even the most arcane political issues. Not surprisingly, I won very few to my positions. Remarkably, when I recognized that others had good reasons for thinking as they did, even if they disagreed with me, and I did not dismiss their ideas out of hand, I found I had a better chance of changing their minds or, perhaps better, reaching consensus. We cannot dismiss everyone who disagrees with us as hopeless.
At the same time, there are those who are hopeless and dangerous. Steve Bannon comes to mind, as do most Fox News commentators. While I am not at all sure how best to deal with them, I know they will not be persuaded they are wrong and they will not stop spreading their venom. It is easy to say that we need to persuade those who can be persuaded, as the authors all argue. But they do not really grapple with the difficult questions of how best to defeat retrograde ideas, except perhaps with the bromide that the best way to combat bad speech is with good speech (one is tempted to say that is the First Amendment equivalent of the NRA’s Second Amendment pronouncement that the way to stop a bad guy with a gun is a good guy with a gun, but that would be going a bit far).
Both books are worth the time. Both address important issues and make cogent arguments. But they should be the start of a conversation on the limits of speech, not the final word. The issues they address are too complex for these short volumes and the authors’ certainty. Their virtue is the clarity of their vision. Their vice is their failure to see nuance and to grapple with the hard questions their arguments inspire. Finding the proper balance between free expression and protection of other important human rights is not easy. As I said at the outset, the older I get, the more difficult I find it. These authors, for better or worse, believe they have found it. I am not yet convinced.
Notes
1 Wesberry v. Sanders, 376 U.S. 1, 17 (1964).
2 Brandeis, Louis & Warren, Samuel, The Right to Privacy, IV Harv. L. Rev. No. 5 (December 15, 1890).