Redefining Free Speech

Why is the First Amendment, protecting free speech, the most popular one among Americans?

It’s the only one that receives popular support, regardless of whether you’re conservative or liberal. There’s something in the nature of free speech that people believe is fundamentally American. No other country has people believing that they can say whatever they want. Americans are fond of saying, “It’s a free country!”  Yet, even in European liberal democracies, people don’t speak so boldly about their right to speak. Other liberal democracies don’t treat speech the way we do, like it’s unfettered and without restriction.

These “fundamental” rights to speak and act are uniquely American. Neo-Nazis marching in front of Holocaust survivors could not happen anywhere else, under the guise of free speech. In Austria, they’d march straight to prison if they tried that. For other democracies, free speech doesn’t come at the expense of the dignity of others.

How would you define freedom of speech?

The common definition since the 1960s is that when people speak about a matter of public concern, the government cannot restrict their right to speak or hold any views.  This right protects citizens from government intervention in their expression of their views. So the government cannot restrict a citizen from obtaining a permit to protest if the citizen’s purpose is to express his view on matters that affect the public and are of a political nature.

Almost anything that is political in nature is protected from governmental intervention. It doesn’t protect you from being treated poorly by those who oppose your views but it won’t allow the government to stop you from expressing those views.

There are proscriptions on the First Amendment –libel, slander, defamation, “fighting words.” Citizens don’t have the right to defame someone else under the guise of free speech.  In my book, I argue about what it means to say something of political concern. We have made the mistake of assuming that nearly anything that comes out of the mouth of a hateful lunatic is treated as a worthy idea of public concern.  Ideas compete against each other in the marketplace of ideas.  Free speech is granted so that more ideas will be shared and the best ones will prevail.  But we should able to tell the difference between an actual idea, and the nonsense words intended only to incite violence.

If neo-Nazis have something to say, they should write opinion pieces, but for them to be allowed to threaten Holocaust survivors by marching right in front of them is not an idea that the First Amendment should protect because it is not intended to be an idea.  It is intended to threaten, intimidate and traumatize.

What are its limitations?

The book argues that If speech causes harm, it loses its protection as free speech. While some think harmful speech is okay and should be allowed to compete in the marketplace of ideas because people can always reject it, I contend that hate speech and speech that causes harm should not be an American right, and was never intended to be by the Founding Fathers. Forcing Jews or African-Americans to defend their very existence is not what the First Amendment should require. Free speech should not be permitted to be weaponizing against vulnerable groups of people.

We are all familiar with the old nursery rhyme: “sticks and stones will break my bones, but names will never harm me.” Everyone knows that this was never true, and now neuroscientists can prove it.  Threating and humiliating speech that tramples upon human dignity causes actual psychological and physical harm.  Words can bring about physical symptoms and cause sickness.

We’ve been building a constitutional amendment around a nursery rhyme. This kind of speech shouldn’t be protected and never was until the 1960s when all the rights exploded –abortion, women’s, civil. But the right to free speech exploded in a way it never existed previously.

Speech that tramples on the dignity of others and harmful speech that is threatening or deprives people of feeling like citizens should not be protected. To quote Lyndon Johnson, “Every man has the right to go into public and not be humiliated.”

The rabbis in the Talmud understood this concept thousands of years ago when they said that humiliation causes people first to turn red in shame and then white as they are drained of blood. They compare humiliation to a death. 

What is the role of colleges and universities in advancing free speech? 

In the current climate, colleges come at it differently than I’ve been describing.  I believe that if you’re harmed or threatened, that‘s not free speech. On college campuses, they say if you hurt my feelings or you have different political orientation than I do, I will shut you down.

Right now, on college campuses there are two things undermining free speech. One, they are treating any hurt feelings as something impermissible. Two, if a political idea is unpopular on campus, they ban it.

Colleges should reclaim their overriding institutional purpose which is to be bastions of ideas, not a place where ideas are routinely shut down. Campuses should be about learning and the life of mind. They need to take back that right and stop coddling our students and allowing them to dictate what they get to hear.

How does the free speech of today differ from the vision of America’s Founding Fathers?

The Founding Fathers never understood speech to be individuals attacking other individuals and undermining their citizenship and right to exist as part of the marketplace of ideas. They understood it as being able to protest without being thrown into jail when the king taxed them on stamps and tobacco.

For the Founding Fathers, freedom of the press and religion were of paramount importance and the central focus of the first amendment. Later on, it became about speech when the states pushed it.

We should be able to judge what’s worthy of being called an idea and what is simply hate. The Founding Fathers never thought speech would trump all other values and today in the U.S., it’s the one that beats all cards.

Dignity was not on the minds of our Founding Fathers, but we should always ask ourselves the question: What would George Washington think about that? Would he think free speech protects the right to protest at the funeral of dead U.S. marines or burn flags?

People need to realize that no one is protected if everything is okay. In the 1970s, when the neo-Nazis marched in Skokie, Illinois, where Holocaust survivors lived, the Supreme Court said we know that this causes incredible damage to refugees and survivors but the answer is for them to stay home and close the blinds. To protect themselves, they were told not to go outside because in effect, the Nazis’ free speech rights superseded the Jews’.  What kind of citizenship is that? Survivors should not have to have the traumatic experience of seeing Nazis marching through a small town overridden by hate-filled anti-Semites. That Jews should be killed is advocating genocide, and it is not an idea worthy of being in marketplace or being protected.