In 1943 referring to free speech, Supreme Court justice Robert H. Jackson wrote “Compulsory unification of opinion achieves only the unanimity of the graveyard.” He could have used the word quiet instead of unanimity because lack of free speech and dissent has the same effect.
The unanimity of opinion comes under the boot of an authoritarian state or under the need not to offend anyone. The last thirty years, and especially now, the United States has started to experience a taste of both. Not that the country has not gone through periods when illiberal forces tried to cancel and persecute “objectionable” speech and ideas. We thought the McCarthy era would be the last such period. But as the culture wars and national politics became less liberal, our collective commitment to preserving free speech started to fray.
Perhaps, not surprisingly, the educational institutions and instruction have emerged as ground zero of the battles about free speech. From elementary to higher education, race, sex, gender, and history have become topics of contested speech. Since 2021, 175 different bills in 40 states have targeted what teachers and academics can teach and many of them have become laws (New York Times editorial, 3/20/2022).
But before we consider the assault on free speech by state actors, we need to reckon how speech started to be viewed as an uncomfortable condition of an open and pluralistic society. The story goes back a few decades when leftist student groups started to object to campus visits by speakers harboring odious ideas, like white supremacy, holocaust denial, racism, and homophobia. Deemed as provocateurs and purveyors of hate and bigotry, these speakers were banned or disrupted on college campuses. Regrettably, some university administrations acquiesced to this type of speech cancelling. Even worse, they sought cover by claiming that racist, pro-Nazi and anti-gay speech was mentally and emotionally upsetting to some students. Thus, they started to establish “safe” spaces where like-minded students would discuss issues without opposition. Jonathan Haidt of NYU described this insular approach to free speech as “safetyism.”
Now let’s move forward to the last couple of years. The cancelling tactics that leftist students had used in past years against speakers whose ideology they opposed were now applied to students demonstrating against Israel for how it prosecuted its war against Gaza. In many instances, peaceful student demonstrations as well as pro-Palestinian speakers and intellectuals were cancelled to placate pro-Israel students, powerful donors, and meddling politicians.
Although universities have been right to respond to acts of violence and harassment against pro-Israel Jewish students, their overall handling of past and current incidents related to free speech have left American universities vulnerable to severe criticism as to whether they can remain citadels of free inquiry and ideas. Michael Roth, president of Wesleyan University, is one of the few university leaders that has raised alarms in this connection. He made his support for free speech on campuses very clear in the title of his NYT opinion piece “I Hope My Campus Is Even More Political This Year” at the start of the academic year in September.
It is important to realize that the culture and foreign policy confrontations that have taken place on campuses and within academic disciplines have involved private actors and institutions. Thus, they have been played out in the marketplace of competing ideas and politics. A lot more insidious for our rights to free speech and expression is, however, the insertion of the state as it attempts to define the permissible content and conduct that citizens must adopt as they exercise their constitutional right to free speech.
What we have witnessed the last few weeks should alarm everyone who understands and believes that democracy and free speech are inextricably necessary for their mutual survival. Apprehending a permanent resident for organizing pro-Palestinian demonstrations without evidence of violent conduct, cutting federal funding of scientific research unless a university capitulates to the demand of the government as to how it should organize its internal affairs, threatening scores of universities with the same potential penalty for the same objective, threatening private businesses, including law firms, with legal action unless they cancel or modify their language and commitment to diversity, inclusion, and equity are unprecedented and naked attempts to influence free speech and expression.
Before we go too far into the dismantling of our right to free speech, we need to keep in mind the following. First, squabbles among private parties about the boundaries between free speech and unacceptable conduct are fundamentally distinct from the full force of the state when it attempts to dictate what is permissible speech and conduct in its expression. Second, once a country falls in the practice of tampering with constitutionally protected free speech the door opens for future administrations to apply rules that work against the interests of those who sympathize with the tactics of the present administration. In the long-run none of us is protected. Third, our commitment to free speech is truly tested when we have to tolerate speech we abhor.
Finally, we need to realize that the argument that it’s not the content but the conduct that is prosecuted is the typical justification of illiberal and authoritarian regimes. When autocratic governments crack down on news outlets, or the internet, or demonstrations – even peaceful ones, it’s not because the conduct or medium of expression is violent. It is the content of the speech they are after. It is the message that they try to prevent from going out. So, what autocratic regimes do is either to expand the scope of impermissible speech – often by means of vague language, or to narrow the scope of permissible conduct. I am afraid this is what is happening right now in this country.
As one commentator wrote, the protection under the First Amendment is a signal component of America’s national identity. When dissenting opinions are suppressed by the state or by intolerant groups of citizens the eerie quiet of the graveyard will come from the tombstone of our democracy.
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