As western society has become religiously more diverse (with the arrival, particularly, of Muslim migrants and immigrants), western liberalism—broadly construed—has struggled to accommodate a traditional commitment to free speech with an increasing sensitivity to religious pique (the most notable such pique being the violent reactions of some Islamic adherents in the west to unflattering, blasphemous depictions of the Prophet Muhammad). 

An argument has been put forth that Muslims experience Islam differently than Christians do Christianity, and that this difference—partly, at least—accounts for the divergent reactions to blasphemous material within the respective religious communities. See, for instance, the late UC Berkeley professor Saba Mahmood’s “Religious Reason and Secular Affect: An Incommensurable Divide?” from the Summer 2009 issue of Critical Inquiry. According to this argument, Christianity is a mere belief system, with its attendant commandments and admonishments, a system to which one can choose to subscribe or not. One’s belief may be sincere, even intense, yet Christianity is more a spiritual elective than a constitutive part of one’s identity, more a holy abstraction than a corporeal part of one’s daily life as a Christian. And this—the argument would have it—explains the relative ease with which Christianity coexists with secularism and with civil society’s commitments both to freedom of speech (even blasphemous speech) and to the separation of church and state (in America, at least). 

The same argument has it that Muslims, by contrast, experience Islam on a much more constitutive basis. Mahmood wrote of how the faithful interact with the Prophet:

Muhammed is regarded as a moral exemplar whose words and deeds are understood not so much as commandments but as ways of inhabiting the world, bodily and ethically. Those who profess love for the Prophet do not simply follow his advice and admonitions . . . but also try to emulate how he dressed, what he ate, how he spoke to his friends and adversaries, how he slept, walked, and so on. These mimetic ways of realizing the Prophet’s behavior are lived not as commandments but as virtues; one wants to ingest, as it were, the Prophet’s persona.

When it comes to ingesting your moral exemplar (the focus of your veneration and worship), it’s hard to beat the Eucharist. But Mahmood was attached to the idea that this was a uniquely defining aspect of Islam, and she reiterated and reinforced her point using such words as inhabitation, cohabitation, consubstantiality, immanence, similitude, and habitus. In short, the argument has it that Christianity is something a person believes, and believing is something one does, whereas being a Muslim is just that—a state of being, something one is. Therefore, freedom of speech is an insufficient concept when addressing the profound sense of personal injury a Muslim might experience as a result of blasphemy. 

Of course, numerous religions find their adherents corporeally inhabiting their faith—through emulation (baptism by water in Christianity, mortification of the flesh in various religions), through ritual forms of dress and grooming (everyone from Sikhs to Mormons to Jews to Muslims), through dietary traditions (Hindus, Jews, Muslims), and through the daily pursuit of virtue (virtually all of them, no pun intended). Christians believe that mankind was made in God’s image, and that the body is therefore a temple, within which the Holy Spirit resides. Hence the idea that cleanliness is next to Godliness, though devotional hygiene and self-care are hardly exclusive to Christians. Some sects speak in tongues—talk about bodily inhabiting your faith (or being possessed by it). Others claim to be born again.

Yet Mahmood’s apparent belief that embodiment, consubstantiality, and the like are peculiar to Islam led her to believe that blasphemy is felt uniquely among Muslims not just as a transgression of religious law (that is, as a juridical matter) but almost as a physical wound, an inflicted sickness or injury, a violation of one’s very self, which at least partly explains the more extreme reactions to blasphemous material within Islamic communities. But given that such embodiment, as established above, is not exclusive to Muslims, it would be reasonable and empathic to assume that by the very same standard Christians have been equally sickened and wounded, say, by Andres Serrano’s Piss Christ; by the animated TV shows South Park, Robot Chicken, and Rick and Morty’s gleefully irreverent depictions of Jesus; by Monty Python’s Life of Brian; and by Lenny Bruce’s quip that “If Jesus had been killed twenty years ago, Catholic school children would be wearing little electric chairs around their necks instead of crosses.” Do these all constitute non-crime hate incidents one could label Christ-phobic? Should South Park, Robot Chicken, Life of Brian, and Rick and Morty be stripped from streaming services? Were conservative senators Jesse Helms and Alfonse D’Amato (among others) right to object to Piss Christ? Were the cancelers justified in taking out Lenny Bruce, and should Spotify and the like be compelled to efface him from cultural memory by removing him from their offerings? 

Never mind Christianity—yoga, which is indivisibly focused on the body as well as the mind, has deep spiritual roots in Hinduism and Buddhism. Does such embodied spirituality mean there can be no more yoga jokes, lest we sicken and injure those emulating the Buddha?

The First Amendment and its Establishment Clause offer no special, legal protective status to any group. Everyone—whether in the majority or the minority, whether religious or not—has both the equal opportunity to be offensive (within broad limits) and the equal opportunity to be offended. Yet where the “right” to be offended is concerned, one increasingly sacralized group is succeeding in being more equal than others, the better to enforce social censorship, and is doing so on precisely the grounds laid out in Mahmood’s essay: by claiming that offenses felt by its members are almost bodily in nature—intolerable, threatening blows to the members’ sense of personhood (if not their very lives)—and that given the quasi violent and supposedly hate-motivated nature of such offensive material the group requires and deserves protective status as a vulnerable minority (protection manifested, again, as social censorship against those to whom the group objects).

Which brings us to Dave Chappelle and his latest run-in with transgender activists, a run-in that resulted in Minneapolis’s First Avenue club cancelling and relocating a Chappelle show mere hours before the scheduled performance, after transgender activists on the venue’s staff took to social media to complain of their employer’s decision to book a comic whose words made them feel unsafe. 

“Dave Chappelle has a record of being dangerous to trans people,” a petition on Change.org read, “and First Avenue has a duty to protect the community. Chappelle’s actions uphold a violent heteronormative culture and directly violate First Avenue’s code of conduct. If staff and guests are held to this standard, performers should be too.”

The last sentence is fatuous. By that logic, if performers have access to the stage and to private dressing rooms and are paid, guests should be too. Performance halls—ever and always, and by design—are scenes of glorious inequality, with the performers onstage bathed in light and amplified to the rafters, often transgressing social norms to the delight (and expectation) of the audience itself, while the guests pay to sit at their feet in the dark and enjoy the show within the venue’s rules, and while the staff serves drinks to make a wage plus tips. There are hierarchies and double standards where showfolk are concerned (at least during performances), and if we’re being honest, we wouldn’t have it any other way. Egalitarianism is the stuff of encounter groups and union halls, not entertainment venues. And “a duty to protect the community”? Dudley Do-Right couldn’t have said it better.

As for the talk of heteronormative violence and danger—talk used to justify calls for cancellation—it is not without some basis in reality, yet it has become casual, unexamined boilerplate in these sorts of debates, and closer examination is in order. According to the Trans Murder Monitoring Project, 4,042 trans and gender-diverse people were reported murdered worldwide between 1 January 2008 and 30 September 2021. That averages out to roughly 300 trans murders per year worldwide—300 too many—but the distribution is far from even. Roughly 41 percent of the reported murders come from Brazil alone, and another 15 percent come from Mexico, giving just those two countries a 56 percent share of the worldwide total over that time period. Add in the rest of Central and South America and you’ve accounted for 78 percent of the total.

The United States contributed 8 percent, with 324 murders over the nearly fourteen years. That averages out to roughly 24 murders per year in the United States, about equal to the ten-year (2012–2021) average of people who died each year in the United States from lightning strikes. That every one of those murders is lamentable should go without saying. Yet these numbers seem surprisingly low considering the endless and reflexive assertions that violence and murder are suffered disproportionately by the trans community here in the United States. 

One might reasonably point out that the trans community makes up a relatively tiny percentage of the overall U.S. population, so the lightning-strike analogy is misleading in that it fails to measure those tens of deaths per year against the trans community’s much smaller numbers (relative to the U.S. population as a whole), which would make those tens of deaths per year proportionately larger. This is true, and should be factored in.

According to a June 2022 Pew report, 1.6 percent of adult Americans identify as transgender or nonbinary. For those under the age of thirty, the number climbs to 5.1 percent. Comparing these percentages against overall U.S. homicide totals for 2020 (the most recent year for which such stats are available) and against the Trans Murder Monitoring Project (TMMP)’s Stateside total for roughly that same year reveals what should be welcome news. The total number of people murdered in the United States in 2020 was, according to the Centers for Disease Control and Prevention (CDC), 24,576. The TMMP reports that between 1 October 2019 and 30 September 2020, 28 trans people were murdered in the United States. The TMMP’s number for that time period is roughly one tenth of one percent of the CDC’s total for 2020. If we use the TMMP’s number (53) from the subsequent twelve-month period, it amounts to a little over two tenths of one percent of the CDC’s 2020 total. The CDC and TMMP date ranges don’t exactly align, of course, and the numbers do increase (as homicides did overall, significantly, for 2020), but the percentages are a sliver of those established by Pew, indicating—reassuringly, one would think—that trans people are at the very least not disproportionately the victims of the most violent of violent crimes in America. Indeed, something like the opposite seems to be the case.

The TMMP numbers do get woefully disproportionate when the profession of the victims is taken into account. In the two annual TMMP reports linked to in the preceding paragraph, it was noted that among those whose occupations were known, sex workers made up 62 percent and 58 percent of the victims, respectively, and more than a third of the murders in each report took place in the street. But this demonstrates not so much a peculiar vulnerability among trans people as it does the acutely elevated risk of violence associated with sex work, particularly that involving street walking. This is true no matter one’s gender. One study states flatly: “It has been estimated that women involved in street prostitution are 60 to 100 times more likely to be murdered than are nonprostitute females.” And another study confirms that, “Prostitute women have the highest homicide victimization rate of any set of women ever studied.” The danger resides primarily in the work, not in the gender identification of the worker. (Yes, transgender street-walkers are involved in what is called “survival sex.” But what street-walking prostitutes aren’t performing sex on a desperate, transactional basis related to their needs—be those needs food, shelter, protection, drugs, or whatever else is deemed necessary for their survival? Does anyone think non-trans prostitutes are just nymphos who enjoy the night air?)

But to take TMMP numbers, ignore all such specificity (related to which countries and regions are most violent and which profession is most at risk), and use them to justify cancelling a Dave Chappelle show in Minneapolis on the grounds that Chappelle is a clear and present danger to the community is a bit of a stretch. Imagine American Christians borrowing the elevated levels of anti-Christian violence in Pakistan and Nigeria to beef up U.S. numbers (which do exist) to prove that Robot Chicken is a direct, Christ-phobic, physical threat to the well-being of American Christians and should be removed from all cable and streaming services. Would we celebrate that as nothing more than Christians practicing their right of free speech and moral suasion? Or, more likely, would it be seen as cultural and moral overreach (and specious into the bargain), involving one group dictating to others what the others should be allowed to see and hear?

An aside regarding those U.S. numbers: The FBI’s hate-crime statistics from 2019 (the most recent year available) include 1,521 religiously motivated hate-crime incidents, which made up roughly 21 percent of all hate-crime incidents recorded that year. By comparison, sexual-orientation and gender-identity hate crimes made up roughly 19 percent of the total. Jews were by far the most targeted religious group, accounting for nearly 63 percent of the religiously motivated hate-crime incidents. (And, you know, there are a lot of Jew jokes out there, including by Chappelle. Does that make him a dangerous, violent threat to Jews?) But Christians—whether Catholic, Protestant, Eastern Orthodox, Jehovah’s Witness, or “other Christian”—were the second-most-targeted religious group, accounting for more than 12 percent of the total, just slightly ahead of Muslims. No one has a monopoly on being hated and targeted.

Back to the First Avenue cancellation: A Twin Cities nonprofit called Reclaim, which helps local queer and trans youths gain access to mental-health services, protested the Chappelle booking on its Instagram by citing Chappelle’s “history of transphobic rhetoric that has directly harmed the queer and trans community we serve.” That’s a statement as frivolous as it wants to be serious. If someone has “directly harmed” another, and this can be so flatly asserted (and presumably established), then that person has committed assault, against which there are laws. If in response to this crime against the community that they’ve deputized themselves to protect and serve all Reclaim and the First Avenue staff thought to do was sermonize on social media and cancel a comedy routine, then they’re morally and legally derelict. Someone should be filing a police report. 

But that won’t happen, because all this loose talk about Chappelle being a violent, dangerous bringer of harm is but a variety of threat inflation, hyperbole meant to morally coerce others into silence and/or assent. We’ve seen recourse to similar hyperbole recently with the bullying, accusatory misuse of such terms as treason and disinformation. Only in the court of public opinion (if even there) can one’s claim of having suffered violence and offense serve as its own proof of another’s having culpably committed a violent offense. Hence, again, no police reports but lots of trembling grief on Instagram and Twitter about violence having been committed—a process that reveals not only the unseriousness of the claims against Chappelle but also, as he continues to defy cancellation, the need of the online deputies to be ever more strident in making those claims. 

But what if there really has been someone of bigoted leanings who, after seeing a Chappelle special, was motivated to commit a hate crime against a trans person? Or what if there really has been a trans person who, after seeing a Chappelle special, felt so violated by the comic’s sentiments that he/she/they was driven to self-harm? And what if, in both cases, this could be established? Would Chappelle be responsible?

No, he would not. Just as abridging speech is a double wrong (committed not just against the speaker but also against all who have the right to decide for themselves whether they want to hear and listen to that speaker), speech itself entails a double responsibility—that of the listener as well as the speaker. Actions taken on the part of a listener are not the direct responsibility of the speaker unless that speaker has engaged in speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action,” per the Supreme Court’s June 1969 decision in Brandenburg v. Ohio (yes, the Klan case).

That same summer of 1969, Nina Simone took to a stage in Harlem and chanted to a lively and receptive audience the following words: “Are you ready black people? Are you really ready? Ready to do what is necessary? To do what is necessary to do? . . . Are you ready to kill, if necessary? Is your mind ready? Is your body ready? . . . Are you ready to smash white things? To burn buildings? Are you ready?”

One doubts there’s anything quite so explicit and exhortatory in Dave Chappelle’s oeuvre, but even if someone in the audience left that concert and saw fit to smash white things, even to kill, Simone—per the Brandenburg standard—is guilty of nothing more than performing political art (and being one of the most singular talents and distinctive voices in twentieth-century American music). Simone does sound awfully close to advocating violence, but the standard upheld in Brandenburg is that advocacy is not the same as action, and that this distinction must be kept strictly in mind, lest the urge to aggressively suppress get the better of us.

As we have argued elsewhere, the danger of incessantly and recklessly equating words with violence must be far more carefully scrutinized than has become the custom. The more we’re encouraged to think of words as violence, the more some among us will likely come to think of violence as a proportional response to words—an eventuality every bit as tragic, if not all the more tragic, if the violence is turned on the self. Given that thoughts and rates of suicide are particularly high in the transgender community, it would seem that trans activists would be motivated toward linguistic precision and rhetorical prudence in this matter, for the sake of the community they represent. To indulge in threat inflation and to encourage its perception among people who already feel an elevated sense of vulnerability and threat seems misguided at the very least, perhaps even unkind and cynical. 

It may serve the group overall to unify in opposition to an improbable folk devil like Dave Chappelle, whose sinister and particular habit, they claim, is to target them for suffering. Such a claim helps the group achieve the status of blasphemed martyrs, which allows them to wield the greatest possible moral influence in society. But this conjuring and amplification of supposed devilry and menace may be taking a hideous toll on individuals within the group—a toll then laundered through social media and attributed to the devil himself. (Of course, this can no more be proved than can the charges that Chappelle has directly contributed to harm and violence, but it does seem intuitively possible, even likely.)

The First Amendment and the Establishment Clause accommodate not only all manner of religion but all manner of religious pique (short of actual violence)—the quasi religious pique of trans activists being no exception. They are perfectly within their rights to get in a holy uproar over Dave Chappelle and that other, equally improbable folk devil, J. K. Rowling. And we really should celebrate scenes of trans activists raising a mild ruckus outside a Minneapolis performance hall (exhibiting no sense of being menaced or targeted whatsoever) while Chappelle, equally unmenaced, charmed audiences inside with his wit. Free speech all around. But when the activists try to limit who can access the public square, who can speak and what can be spoken, and what can be seen, heard, and listened to by the rest of us—when they essentially try to establish their standards as the only allowable standards—then they’ve gone from exercising their rights to infringing on everyone else’s. And that deserves active opposition all its own.

Probably the most widely admired definition and dissection of “cancel culture” remains Ross Douthat’s New York Times column, “10 Theses on Cancel Culture”—an article that, upon its publication in 2020, the cognoscenti immediately certified as the smart take on the subject. The most conservative of the Grey Lady’s columnists, Douthat is a decidedly minority taste among the paper’s readership, and his column rarely wins general accolades. But with this on-the-one-hand-on-the-other piece, Douthat manages, uncharacteristically, to create a broad and mushy middle ground, one composed of both cautious critics and those who defend at least some aspects of cancel culture. You should smell a rat.

In enunciating his theses, Douthat strives for a consensus-building moderation and deploys a posture of mollifying, seemingly bracing realism. Two interrelated theses define his argument, and both have been lauded by defenders of “cancel culture” as important concessions to their way of thinking – as indeed they are:

All cultures cancel; the question is for what, how widely and through what means. There is no human society where you can say or do anything you like and expect to keep your reputation and your job . . . Today, almost all critics of cancel culture have some line they draw, some figure – usually a racist or anti-Semite – that they would cancel, too. And [those] who criticise cancel culture, especially, have to acknowledge that we’re partly just disagreeing with today’s list of cancellation-worthy sins.

If you oppose left-wing cancel culture, appeals to liberalism and free speech aren’t enough . . . debates about cancellations are also inevitably debates about liberalism and its limits. But to defend a liberal position in these arguments you need more than just a defense of free speech in the abstract; you need to defend free speech for the sake of some important, true idea. General principles are well and good, but if you can’t champion controversial ideas on their own merits, no merely procedural argument for granting them a platform will sustain itself against a passionate, morally confident attack. So liberals or centrists who fear the left-wing zeal for cancellation need a counter argument that doesn’t rest on right-to-be-wrong principles alone. They need to identify the places where they think the new left-wing norms aren’t merely too censorious but simply wrong, and fight the battle there, on substance as well as liberal principle.

As one wokeish Twitterer nicely summarised Douthat’s position: “I didn’t think it’d be Ross Fucking Douthat who’d be the one at the NYT to articulate how “cancel culture” isn’t new per se, it’s just a shifting of moral expectations for public behaviour, and maybe centrists need an actual argument.” The Tweeterer’s approval is justified. Taken together, Douthat’s conciliatory arguments constitute an assault on the defense of free expression, a defense that can only be made along absolutist and abstract lines.

The faux-realism that insists that, come-off-it-everyone-draws-a-line-somewhere-when-it-comes-to-opinions-that-deserve-to-be-barred-and-punished is specious. It conflates those who favour licensed speech with those committed to free speech. The latter know that a liberal society and true freedom of thought can only survive if, within the law, no lines are drawn. They know that such a stance requires not, as Douthat would have it, the defense of those who avow opinions deemed “important” and “true” (who, by the very nature of their opinions, will be safe). Rather, it requires the defense of those who avow opinions known by all who matter to be reprehensible and dangerous – a category that emphatically includes the champions of racist or anti-Semitic opinions. And those really committed to free speech know that such a defense can only be mounted not, as Douthat declares, according to the “substance” of the opinion but as an assertion of general principle. Finally, they know that such an assertion is indeed (pace Douthat) a “passionate, morally confident” defense.

To indulge in the idea that those who decry today’s cancel culture do so merely because they don’t agree with “today’s list of cancellation-worthy sins,” and to acquiesce in ad hoc judgments about what views deserve to be defended from cancellation, is to succumb to historical myopia. It is to forget, as Oliver Wendell Holmes Jr, put it, “that time has upset many fighting faiths.” After all, the witch-hunts of the past weren’t led by those intent on doing bad (as the current comic-book version of history insists) but by those fervently committed to morality, not a few of whom incidentally believed that they were serving a politically progressive cause.

Today, people who would cancel those they deem racist, homophobic, xenophobic, etc, know that they are merely seeking to exclude from polite society and to drive from employment those who advocate morally repugnant ideas. People who campaigned successfully to cancel (to use an anachronistic term) pacificists, Communists, socialists, atheists, supporters of the ACLU and the NAACP, advocates of abolishing miscegenation laws, champions of labour unions, proponents of gay rights and of women’s access to contraception possessed the same moral clarity. A liberal and self-critical society can only function as such if it eschews the universal temptation to persecute people for their opinions, which means – as much as Douthat’s thoughtful social conservatism may shrink from the injunction – that it must apply to non-constitutional matters Justice Lewis Powell’s intellectually and morally laissez-faire proposition that “under the First Amendment there is no such thing as a false idea” (to quote the majority opinion in Gertz v. Robert Welch, Inc.).

Douthat’s own assertions demonstrate that no other approach can work. On the one hand, he’s apparently comfortable with what he sees as the consensus that a “racist or anti-Semite” can be hounded from his or her job. Opponents of cancellation, Douthat argues, shouldn’t defend those who hold such bad opinions; they ought to limit their efforts to defending “some important, true idea”—and they should accordingly limit criticism of censoriousness to those occasions when the censors’ opinions are “simply wrong.” But of course, there’s no fixed understanding of what constitutes racism or anti-Semitism. For example, where, precisely, is the line to be drawn between anti-Semitism and criticism, even dislike, of Israel? A particularly pernicious feature of today’s censorious thinking is its sweeping ambit for what counts as “racism,” “sexism,” “transphobia,” “Islamophobia,” “white supremacy,” and “xenophobia” (and for that matter, the Right’s bugbear, “Critical Race Theory”) – a development exacerbated by the equally vague, all-embracing notions of “dog whistle” and “harmful” speech (a point Douthat notes, even as he bafflingly fails to grasp its implications). Which people judged “racist” and “white supremacist” is it OK to defenestrate? For instance, staff members of the San Francisco Museum of Modern Art drove out the senior curator of painting and sculpture, Gary Garrels, for saying that “it is important that we do not exclude consideration of the art of white men,” because to do so would amount to “reverse discrimination.” They judged his statement to be “white supremacist and racist.” To others, though, Garrels expressed an “important, true idea.” The logic of Douthat’s position would be to sanction Garrel’s expulsion because, after all, as he sees it, most of us draw the line at racism. But who’s to define that particular taboo? Although Douthat dismisses “general principles” as “all well and good,” in fact the only way out of the conundrum that the Garrels case poses is to defend the principle, not the specific idea that has roused the witch-hunters.

No, this doesn’t mean that ideas and opinions ought not to be vigorously challenged. It simply means that a mature, liberal people should insist that their society and culture draw a distinction between contesting the idea and hounding the promulgator of that idea from the public square and from his or her job, regardless of how repellant a few people or even most people find that idea. Free speech isn’t just a general principle; it’s a hard discipline. To Douthat, the repression and punishment of ideas by public opinion is largely just a matter of shifts in public opinion: we all do it. It’s relative and contextual. In fact, however, the defense of free speech is an absolute or it is nothing. The protection a society affords to those who espouse ideas cannot be applied according to the degree that society finds those ideas acceptable. To do so would assure a dangerous, or at best stultifying, conformity to mass or vociferous opinion. To Douthat, the proposition that people should be free to express unpopular or despised thoughts without risking their livelihoods seems “merely procedural” and nothing more than an abstract and bloodless concept. Surely it is. But to civilised and tolerant people (a group that assuredly includes Douthat), the ideas in Areopagitica, On Liberty, and the (mostly) glorious tradition of American free-speech jurisprudence – all based solely on abstract principle, on what Holmes acknowledged to be merely “a theory” – are eminently worthy of battle in their defense.

_____________

A version of this essay was published in spiked.

Back in March, the New York Times published an editorial titled “America Has a Free Speech Problem,” which—despite its bland if mostly accurate assumptions and assertions—was swiftly condemned from the left and tepidly lauded from the right. Both reactions owed primarily to the fact that the Times not only identified cancel culture as a genuine and pernicious phenomenon but that it dared put cancel culture on a par with right-wing legislative attacks on free speech. In short, the Times argued that not only is free speech under some degree of legal assault in America but also that the country (to some degree) is abandoning its cultural commitment to free speech. 

It didn’t help that the Times clumsily and inaccurately claimed (in the opening paragraph, no less) that Americans have a fundamental right to “speak their minds and voice their opinions in public without fear of being shamed or shunned.” Um, no they don’t. As virtually every respondent has pointed out, shaming and shunning are forms of speech as well. Criticism is perfectly valid, and lies at the heart of free speech. The problem is when criticism morphs into vigilantism and ostracism. 

Some critics, however, took this bit of Times ineptitude as proof that cancel culture simply isn’t real, that it’s merely part of a right-wing moral panic trafficked in bad faith by culture-war cynics and conservative politicians looking for electoral gain, a panic now seconded by a feckless bunch of middle-of-the-roaders at the Times. That cancel culture can be both real and trafficked by some in bad faith never seems to occur to those critics, one or two of whom—with nary a scintilla of self-awareness—promptly called for the self-cancellation of the entire editorial board of the Times. (Matt Taibbi had a lot of fun with this irony, along with much else about the hysterical overreaction to the Times editorial.)

Dan Kennedy, a journalism professor at Northeastern University and the media columnist for GBH in Boston, was just brave enough to admit that cancel culture isn’t entirely a right-wing fabrication, but he was exceedingly blithe about its implications:

We are, indeed, living through a period in which free speech is under attack from both the left and the right. But all of the power and money is on the right. Book bannings, Florida’s “don’t say gay” bill, state laws against the teaching of “divisive concepts”—these are the real threats to freedom of expression.

Lefty college kids shouting down a conservative speaker? Well, they should learn some manners. Of course, I don’t mean to limit my critique to that rather trivial example. There are cases in which people have lost their jobs or [been] held up to public ridicule in the cesspool of social media because of some ill-considered remark they made. But there’s no way these incidents can be compared to the systematic right-wing assault on freedom of expression with which we are now contending.

Perhaps Professor Kennedy is unaware of Frederick Douglass’s famous 1860 “Plea for Freedom of Speech in Boston,” delivered a week after Douglass and others had had a planned discussion on abolition shouted down and broken up by rowdy protestors (in the presence of derelict law enforcement). The matter, in Douglass’s eyes, involved much more than a “trivial” breach of manners. “Liberty is meaningless,” he argued, “where the right to utter one’s thoughts and opinions has ceased to exist.” He continued: 

There can be no right of speech where any man, however lifted up, or however humble, however young, or however old, is overawed by force, and compelled to suppress his honest sentiments.

Equally clear is the right to hear. To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker. It is just as criminal to rob a man of his right to speak and hear as it would be to rob him of his money.

As we at the U.S. Free Speech Union (USFSU) have noted, “Violence Equals Silence,” and this is indeed a problem plaguing public discourse from both the left and the right. As for whether, pace Kennedy, people being cast out of their professions because of social-outrage campaigns is comparable to more-systematic, more-official assaults on freedom of expression, no less than John Stuart Mill thought it was. In his 1859 On Liberty, Mill demolished any theoretical distinction that Professor Kennedy and others might try to maintain between the effects of legal versus social punishment. In practical terms, as Mill notes, the latter punishment is as severe as the former, and perhaps even more effective at stifling thought and expression:

For a long time past, the chief mischief of the legal penalties is that they strengthen the social stigma. It is that stigma which is really effective, and so effective is it, that the profession of opinions which are under the ban of society is much less common in England than is, in many other countries, the avowal of those which incur risk of judicial punishment. In respect to all persons but those whose pecuniary circumstances make them independent of the good will of other people, opinion, on this subject, is as efficacious as law; men might as well be imprisoned, as excluded from the means of earning their bread.

Mill went on to argue that a society that indulges in excessive stigmatizing does as much (unwitting) harm to itself as it does to those whose expressions it wishes to discourage:

But though we do not now inflict so much evil on those who think differently from us as it was formerly our custom to do, it may be that we do ourselves as much evil as ever by our treatment of them . . . Our merely social intolerance kills no one, roots out no opinions, but induces men to disguise them, or to abstain from any active effort for their diffusion . . .

And thus is kept up a state of things very satisfactory to some minds, because, without the unpleasant process of fining or imprisoning anybody, it maintains all prevailing opinions outwardly undisturbed, while it does not absolutely interdict the exercise of reason by dissentients afflicted with the malady of thought. A convenient plan for having peace in the intellectual world, and keeping all things going on therein very much as they do already. But the price paid for this sort of intellectual pacification is the sacrifice of the entire moral courage of the human mind. A state of things in which a large portion of the most active and inquiring intellects find it advisable to keep the general principles and grounds of their convictions within their own breasts, and attempt, in what they address to the public, to fit as much as they can of their own conclusions to premises which they have internally renounced, cannot send forth the open, fearless characters, and logical, consistent intellects who once adorned the thinking world . . .

Those in whose eyes this reticence on the part of heretics is no evil should consider, in the first place, that in consequence of it there is never any fair and thorough discussion of heretical opinions; and that such of them as could not stand such a discussion, though they may be prevented from spreading, do not disappear. But it is not the minds of heretics that are deteriorated most by the ban placed on all inquiry which does not end in the orthodox conclusions. The greatest harm done is to those who are not heretics, and whose whole mental development is cramped, and their reason cowed, by the fear of heresy . . .

In other words, society can’t hope to censor its way to genuine consensus. As Justice Louis Brandeis observed, “order cannot be secured merely through fear of punishment for its infraction.” The peace that is achieved through the threat of social stigma is a fragile and counterfeit peace, and it conduces no less to potential intellectual subversion (or worse) on the part of dissenters driven underground than it does to a dangerous intellectual atrophy on the part of those who uncritically adopt and enforce the social orthodoxy. The atrophy, per Mill, is owing to the “fatal tendency of mankind to leave off thinking about a thing when it is no longer doubtful”—a state of affairs he calls “the deep slumber of a decided opinion.” 

But, the critics say, isn’t the accommodation of heretical ideas tantamount to a cowardly “both-siderism” that refrains from any value judgments, no matter how atrocious the ideas and thoughts expressed might be? As Salon put it in the title and subhead of its response to the Times editorial:

What the New York Times doesn’t get about free speech and “cancel culture”

In a [sic] editorial, the board equates book-banning with “social silencing” people for bigoted opinions

Note the scare quotes around cancel culture. Note also that although Salon flubs the indefinite article, it definitely knows that the only people being silenced are those expressing bigoted opinions (bigotry being defined entirely by the silencers, of course). Thus cancel culture is presented at one and the same time as completely fictitious and totally justified. There is no cancel culture, per Salon and others. There is only the satisfying and self-justifying quest for moral hygiene. Yet such certitude, Mill noted, is the beginning of “moral coercion,” the stuff of puritanism. “[T]o extend the bounds of what may be called moral police,” Mill wrote, “until it encroaches on the most unquestionably legitimate liberty of the individual, is one of the most universal of all human propensities.” The propensity, alas, is not only deleterious to the individual; it also runs counter to society’s best interests. For even reprobates can make beneficial, laudable contributions to society, contributions (in the arts, sciences, and whatever other endeavors) that might very well be worth having even at the cost of society’s being exposed to what Salon sweepingly identifies as bigoted opinions.

Regarding such unsavory opinions (and other matters of social disrepute), “the individual is not accountable to society for his actions,” Mill wrote, “in so far as these concern the interests of no person but himself. Advice, instruction, persuasion, and avoidance by other people if thought necessary by them for their own good, are the only measures by which society can justifiably express its dislike or disapprobation of his conduct.” Yet even Mill acknowledged that society has its own prerogatives, which it may assert vis-à-vis the individual in certain cases and under certain conditions: “for such actions as are prejudicial to the interests of others, the individual is accountable, and may be subjected either to social or to legal punishment, if society is of opinion that the one or the other is requisite for its protection.” 

As we at the USFSU have observed, this is the loophole through which all justifications for cancellation currently pass. It’s not (the logic goes) that society has overstepped its bounds, subjecting certain of its individual members to puritanical moral coercion in the enforcement of social orthodoxies. Rather, it’s that society is protecting certain other individual members, and the balance of society itself, from harm, because words at odds with the orthodoxy (and even silences, in certain contexts) transmute alchemically into actual harm and violence. Thus, perversely, and through the most fanciful abuses of logic and language, can Mill be used to justify curtailments on liberty itself.

In his own response to the Times editorial, Dan Froomkin, of Press Watch, echoed one of the observations made by Professor Kennedy, of Northeastern University:

How the Times editorial board ended up here is incomprehensible, but one key factor was clearly a succumbing to the “woke panic” that has addled the minds of so many other effete writers such that they see threats from an “illiberal left” as existential—even compared to actual, official censorship and the increasingly likely prospect of an authoritarian, anti-democratic Republican Party seizing and holding control of the U.S. government.

. . . Another factor is the malignant spread of the Timesian drive to appear “above the fray” and avoid “taking sides”—even when the two sides exist in gross asymmetry.

Like Salon and others, Froomkin sees cancel culture as a figment—naught but a panic being ginned up cynically by right-wing culture warriors and conservative politicians. But even were it real, he and Kennedy agree that it is (or would be) a mere bagatelle compared with the official encroachments on free speech being perpetrated in some right-wing precincts. That cancel culture and such right-wing legal maneuverings are both real—and both bad—seems an unassimilable thought to the likes of Froomkin. For the record, we at the USFSU have taken on both cancel culture proceeding from the left as well as the right (see, for instance, here, here, here, here, here, here, and here) and right-wing legal encroachments on free speech (see, for instance, here, here, and here).

But Froomkin’s narrow, dichotomous reading of the matter is fairly typical. By such a reading, free speech pertains only to that codified in the First Amendment, which means that only the government can be considered an unwarrantable threat to free speech. Punitive social measures meant to chill certain types of speech are just . . . more speech. And isn’t that what so-called free-speech absolutists are always calling for—more speech? Isn’t the marketplace of ideas working when morally salubrious ideas win out over morally dubious ideas? 

Not exactly. The idea isn’t to have the moment’s most agreed-upon truth calcify into unquestionable, uncontested dogma. The marketplace of ideas is not meant to serve as an ever narrowing, teleological pathway to a righteous “end of history” (how utopian). Rather, it’s more of a process in which everyone has a standing invitation to take part. The idea is to allow for the constant interplay of ideas, and to allow the purveyors of even disfavored ideas to hold their opinions without being hounded out of the public square or the workplace in the name of progress. In short, such people (should) have the right to be wrong, without being turned into personae non gratae. 

But since the First Amendment—wisely—doesn’t attempt to anticipate and codify every such scenario (and therefore doesn’t explicitly police speech in the public square, except to forbid government intrusion), those who take a strictly letter-of-the-law approach to the matter feel justified in dismissing all but the narrowest interpretation of free speech as irrelevant, intellectually venturesome, self-serving bunk. Society qua society can enforce its own norms, the argument goes. And according to such argument, cancellation is a form of speech, about which the First Amendment is silent, so this is simply not a free-speech issue one way or the other.

But the Founders saw government as being of and by the people, meaning they didn’t see things in the strictly dichotomous fashion that observers like Froomkin and Kennedy do (wherein the government exists as some stand-alone entity separate from society). The reason the Founders explicitly checked government’s ability to control speech is because government was the most obvious and available tool by which society itself might try to control speech—and to do so legitimately, through mere electoral victory, had the Founders not promptly undercut the electoral majority’s power to use the government for such a purpose. It’s telling that one of the first things the Founders did after hammering out the Constitution was to amend it, introducing the Bill of Rights specifically to protect individuals and those of minority opinion from the majority, even from duly elected (possibly moral) majorities. 

This is the good news in regard to recent, official right-wing encroachments on free speech. Legislation of that sort—if, when, and where it passes—will have to run a gauntlet of judicial and constitutional challenges. (We can thank the Founders for such separation of powers and for checks and balances, too.) Furthermore, the governors and lawmakers who put forth such legislation are all subject to scheduled elections, with the vote itself (a form of speech) being among the unassailable rights of American citizenry.

None of this guarantees a specific outcome with regard to the contested legislation, of course. The laws may stand, or they may be overturned. But at least there’s a process in place to test and determine the legality of such measures—involving a second opinion from the courts, as it were, because again, legislative majorities weren’t to be granted incontestable power simply by virtue of having achieved their status through legally transacted elections. (The Founders viewed the crowd, the majority, the demos—and by extension their elected representatives—with some trepidation, which is why, among other things, the United States by design is not procedurally a true democracy.) 

However, where society itself and not the government is the abuser of free speech, doling out its arbitrary punishments on those of minority opinion, no such due process, no such potential legal safeguard, exists. Majority opinion goes effectively unchecked. This results in what John Stuart Mill—sharing the Founders’ trepidation—called the tyranny of the majority:

Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant—society collectively over the separate individuals who compose it—its means of tyrannising are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compels all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism. 

Where Dan Froomkin and Dan Kennedy see an asymmetry in power between (to put it in contemporary terms) aggressive right-wing legislators, on the one hand, and trivially boorish left-wing agitators, on the other, Mill saw a different kind of balance, one by which society—free of the legal constraints imposed on government—can effect much more harm on the culture of free speech, without which culture the law is made rather hollow.

In a 2020 debate with First Amendment litigator Ken White in Reason magazine, Greg Lukianoff, president of the Foundation for Individual Rights in Education, argued that free-speech culture is upstream of free-speech law; that the former is the indispensable source of the latter. To treat free-speech law and free-speech culture as separate entities—and to grant law, with its precise limits, almost sole legitimacy—is folly, Lukianoff observes, quoting the most famous passage from Judge Learned Hand’s 1944 “Spirit of Liberty” speech to make the point: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.” If we turn away from our broader commitment to the principle of free speech, if we abandon that commitment in the cultural and social realms, we will—of our own accord—have rendered the legal freedom of speech almost moot, because fewer and fewer of us will risk practicing it in the first place, knowing that the First Amendment alone can’t protect us (from job loss, from being cast out of the public square, etc.).

Episodes in our own history confirm society’s great potential for menace during periods of cultural and political tension. As Nick Schwarz outlined in an essay for the USFSU, popular, non-governmental coercion in the name of political conformity during the First World War and the first Red Scare in that war’s aftermath (a coercion that led to even the most mild dissenters being fired from their jobs, socially ostracized, tarred and feathered, beaten, and killed) “haunted American intellectuals, as well as civil libertarians, lawyers, and jurists—the Supreme Court Justices among them.” Schwarz elucidates:

What retrospectively most troubled liberal opinion about the breach of civil liberties . . . were not the draconian federal laws and enforcement actions that had clamped down on political dissent, but the hysterical, often violent cultural and political repression imposed by local groups. This repression emanated from mobs and ad hoc citizens’ groups, from the newly formed American Legion, and from state and local police, prosecutors, judges, and juries that reflected and responded to popular passions. “Not only were radical and pacifist tendencies . . . thoroughly suppressed,” historian Henry May explained, “but the lukewarm, the reticent, or the unpolitical were often hounded and pilloried” . . . According to this perspective, a persistent intolerant pathology menaced freedom of speech, political and intellectual dissent, and minority rights—the hallmarks and foundations of democracy.

Similarly, during the “Second Red Scare”—the decade succeeding our involvement in the Second World War, years we associate in the popular imagination with such federal communist hunters as the House Un-American Activities Committee, Senator Joseph McCarthy, and FBI chief J. Edgar Hoover—it was actually society that was the greatest threat to the well-being of the average American. Trade and professional associations, unions and guilds, universities and other employers—even the American Civil Liberties Union—were all known to purge or exclude from membership or employment communists or presumed communist sympathizers, based on such people’s having practiced (or having merely been suspected of practicing) nothing more than freedom of association, freedom of conscience, and freedom of speech. Through such social vigilantism and professional stigmatizing was the greatest number of lives and livelihoods adversely affected in this period. But because the government, in the majority of cases, wasn’t involved, the First Amendment remained largely unactivated, leaving the victims in most cases bereft not just of social sympathy but also of hope for political or legal redress. 

In his “Spirit of Liberty” speech, Judge Learned Hand went on to venture an admittedly idiosyncratic definition of the spirit of liberty: “The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias . . .” Those today who are certain that cancel culture is a figment, and who then promptly, paradoxically assert that those who are cancelled are never more than irredeemable bigots who have no place in society, could stand to ponder whether they’re as right as they think they are, and whether puritanism and vigilantism really befit the spirit of liberty. 

In April, The Atlantic and the University of Chicago’s Institute of Politics cohosted a three-day conference titled “Disinformation and the Erosion of Democracy.” Topics of discussion included how and whether to regulate social-media companies; the pernicious influence of deep fakes and algorithms; the dangerous allure of conspiracy theories; national security; Russia; the storming of the Capitol on January 6, 2021; and the implications of all this for free speech.

Guest speakers included such politicians as former President Barack Obama—who, to judge from his remarks at the conference and in his subsequent speech at Stanford titled “Disinformation Is a Threat to Our Democracy,” is particularly taken with this issue—Senator Amy Klobuchar, and Representatives Adam Kinzinger and Lauren Underwood; plus an assortment of academics, authors, journalists, activists, intelligence veterans, computer scientists, and others. But save for one speaker on stage, the moderators and guests sheepishly avoided the central dilemma the conference seemed to raise. Panelist after panelist, in session after session, highlighted with confidence the many and varied problems surrounding misinformation, disinformation, and the ungoverned dissemination of information in general in the internet age. Many asserted and agreed that the problem now posed by disinformation is unprecedented. Many also asserted and agreed that owing to this unprecedented problem, American democracy is facing its greatest ever existential threat (1/6 apparently bests 1861 in this regard). But few dared to much more than gesture toward solutions, likely because the solutions anyone could conceive of would erode democracy more (and more quickly) than the supposed problem itself.

Examples of free speech gone wrong abounded, as did examples of free and open media platforms being put to nefarious purposes. In a conversation with the political consultant David Axelrod about current acts of Russian disinformation, the journalist and historian Anne Applebaum talked of how even the old USSR disseminated disinformation by cleverly seeding and laundering it through a free and open western press. Neither she nor Axelrod thought to note that this was essentially the same method used by the George W. Bush administration to gain credibility for the Iraq-weapons-of-mass-destruction story in 2002–2003: by having proxies seed it anonymously in the New York Times, with the help of a cooperative journalist, thereby allowing the administration to cite the Times as a credible and independent entity corroborating what was (of course) nothing more than the administration’s own seeded talking point. The consequences of this well-placed, effectively laundered misinformation (if not disinformation) were hardly insignificant. Years of war, human misery, and damage to the credibility of both the Times and the country ensued.

Ironically, one of the hosts of the conference, The Atlantic’s editor in chief, Jeffrey Goldberg, has himself stood accused of trafficking in Iraq misinformation, for reporting he’d conducted while serving as a New Yorker staff writer in the lead-up to the 2003 invasion. That reporting, his critics have credibly demonstrated, amounted to little more than stenographically recording fabrications regarding links between Al-Qaeda and Saddam Hussein. Goldberg’s articles containing those fabrications were essential evidence in George W. Bush’s and Dick Cheney’s case for war against Iraq. Goldberg wasn’t the only promulgator of disinformation at the disinformation conference: As a Washington Post reporter in December 2002, Barton Gellman, one of the conference’s moderators and an Atlantic contributor, erroneously contended that Iraq had supplied Al-Qaeda with a nerve agent. Most of the evidence for that false claim had been fed to Gellman by Bush administration officials; Gellman’s story was so thin that it elicited the criticism of the Post’s own ombudsman. Disinformation such as that which the Bush administration was peddling and which Gellman was parroting encouraged Congress and the public to support a war built on falsehoods and exaggerations.*

The push for that war, of course, was not the first instance of American hawkishness relying on a compliant press in order to rally public opinion around dubious if not outright concocted assertions. Think, for example, of the Gulf of Tonkin incident and of the sinking of the Maine, which—respectively—helped catalyze America’s entry into the Vietnam War and the Spanish-American War. (The Gilded Age form of dis-/misinformation called “Yellow journalism,” the U.S. State Department’s Office of the Historian helpfully reminds us, was “a style of newspaper reporting that emphasized sensationalism over facts” that “helped push the United States and Spain into war in Cuba and the Philippines, leading to the acquisition of overseas territory by the United States.”)

Indeed, much of American foreign policy since the 1890s can be seen as built on disinformation, whether one views those policies as wise or foolish, prudent or dangerous. After all, Woodrow Wilson rallied Americans to support the U.S. intervention in the First World War through a mixture of distortions, specious slogans, and the ruthless crushing of dissent. FDR, though he claimed to embrace the neutrality that a great majority of Americans favored, in fact surreptitiously sought, long before Pearl Harbor, to maneuver the United States into the Second World War, through a series of initiatives that he hid from, and mischaracterized to, the American people. The Truman administration followed Senator Arthur Vandenberg’s advice to Secretary of State Dean Acheson to “scare hell out of the American people” by, in Acheson’s words, painting a picture “clearer than the truth” regarding the Soviet menace in order to win public support for enormous defense increases and for the new and sweeping global role the administration perceived to be in America’s interest to pursue. In the 1960 presidential election, John F. Kennedy had cynically attacked Richard Nixon from the right, by misleadingly claiming that the Eisenhower-Nixon administration had allowed a dangerous “missile gap” to grow in the USSR’s favor. In fact, just as Eisenhower and Nixon had asserted—and just as the classified briefings that Kennedy received as a presidential candidate indicated—the missile gap, and the nuclear balance generally, was overwhelmingly to America’s advantage. And as the Pentagon Papers abundantly revealed, from the first deployment of American advisors through the beginning of the bombing campaign against North Vietnam to the decision to deploy ground troops and the subsequent ramp-up of the ground war, the American government and national-security bureaucracy consistently misled Congress and the American public about the the prospect of “success” in the Vietnam War and the blood and treasure that the war would demand. In short, the threat and the woeful consequences of disinformation are hardly unprecedented, and the wily Russians need not even be involved. The United States is perfectly capable of finding itself the victim of homegrown misinformation and disinformation campaigns.

The irony revealed in this chronicle is heavy: Not only has the U.S. government regularly issued disinformation, but those dissenters and skeptics who rightly questioned or disputed the government’s dissembling orthodoxy would themselves—according to the criterion of the speakers at the democracy and disinformation conference—be charged with spreading disinformation and misinformation, since their views and arguments departed from the views and version of events certified by officials, experts, and the establishment press.

Less dramatic but still significant examples abound. For instance, the Hunter Biden laptop story—now acknowledged to be true by even the New York Times and the Washington Post—was loftily declared disinformation by the prominent social-media platforms (which barred postings asserting its veracity) and by nearly all of the establishment press (which disdained even covering it)—including, of course, the Times and the Post—and was dismissed as almost certainly Russian disinformation by 50 former high-ranking intelligence officials. Was the insistence on its inauthenticity itself, as now seems arguable, a bit of disinformation—or at least politically motivated misinformation? Ditto the Covid lab-leak theory, which was treated peremptorily as disinformation until, with the change of presidential administrations, it wasn’t, making the original, peremptory take seem politically motivated and therefore of dubious truth and intention. The word disinformation is too often used to refer merely to disputed information, making its use, at least in some cases, a bien-pensant version of Trump’s shouting “fake news!”

One of the most consequential, recent acts of homegrown disinformation is the Russia-collusion story, which led to widespread investigations and which grew out of Democratic opposition research involving a suspect source feeding bogus testimony to the FBI. Talk about eroding democracy. Faith in the integrity of our electoral and party system suffered a tremendous blow because of many people’s eagerness to believe this tale, and the odd combination of pessimism and credulity that swept much of the country was only shared and amplified by our leading media outlets. One could have a three-day symposium on that tawdry episode alone, yet it went mostly if not completely unremarked among those speaking at the disinformation conference. (Although the foregoing examples of disinformation may have emanated from or been embraced by political progressives, of course the Right’s embrace of disinformation, which the conference speakers dwelt on nearly exclusively, is at least as ardent.)

Seeing what ails us as no less a technical than a sentimental problem, the panelists wanted to make sure everyone understood that the pace with which disinformation can now be disseminated via the internet and social media is in and of itself an unprecedented threat to social order, as is the profusion of potential disseminators. Again, it seemed not to occur to anyone at the conference that much the same thing was said about the introduction of the printing press . . . in the fifteenth century. Within decades of that invention, print shops were set up in hundreds of European cities, and the output of printed materials rose exponentially. Not all of those materials, of course, were congenial to the then-prevailing social, religious, and political orders. The advent of movable type radically democratized and diversified knowledge and learning, and shifted the planes of power. As the Yale historian Carlos M. N. Eire has put it, “No printing press, no Reformation.” Of course, no Reformation, no Counter-Reformation, and no wars of religion that racked Europe for more than a century, claiming the lives of millions. The pace of it all, in relative terms, was no less “problematic,” as we now like to say, than it is today. But there’s a reason why medieval (as in, the period ending in the fifteenth century) is typically used as a pejorative and why renaissance (as in, the period beginning in the fifteenth century) has a much more favorable connotation, and why even though bad ideas have been spread as surely as good by way of print, we consider book burning to be the very symbol of arch-reaction. It’s not just the destruction of the objects themselves; it’s the attempted suppression of what those objects contain: disfavored ideas and thoughts, free speech both expressed and received.

The “problematic” relationship between media diffusion and political instability—a “problem” that President Obama has warmed to, as is evident in his remarks at the conference and in his speech at Stanford—has prior examples in American as well as European history. To give just one: the number of newspapers (many of them openly, politically partisan) in the United States increased by 500 percent between 1776 and 1800, a period that partly coincided with vicious political factionalism between the Federalists and the Republicans, each of which sincerely thought the other was going to destroy the young country. The former accused the latter of being Jacobins, part of a mobocracy intent on undermining the nation’s fragile institutions. The latter accused the former of being secret monarchists and genuine elitists bent on betraying the very cause of the American Revolution. Each faction freely indulged in misleading characterizations and outright falsehoods in castigating the other. In this atmosphere of partisan-induced political collapse, and with the excesses of the French Revolution roiling in the background and causing further alarm (at least among Federalists), John Adams signed the notorious Sedition Act in 1798, to clamp down on anti-government “disinformation” that he and other Federalists believed was eroding democracy. 

Returning to the technical theme, however, speaker after speaker at the disinformation conference warned that social-media algorithms stoke division by giving us . . . more of what we want. And what many of us want, apparently, is division. If you like videos of cats chasing laser dots, Facebook gives you more of that. And if you like historical photographs of your favorite city, Facebook gives you more of that. But if you like being outraged over certain politicians or public figures, certain political parties or movements, certain subcultures and social trends, Facebook gives you more of that. In the last case, addiction to outrage ensues, leading to a host of political, social, and cultural pathologies. No doubt this is all true. But are we to treat information like a controlled substance and social-media companies like drug traffickers? Do we need a war on information akin to the war on drugs, to somehow manage the supply in order to save us from our own insalubrious broadband appetites? Whom would we entrust with that task—coders at the selfsame social-media companies who devised the algorithms in the first place? Government regulators? How could we, as an admittedly divided society, even agree on which official or which entity was trustworthy and impartial enough to be deputized with this task? Or would any attempt look to one side like a regulatory power play being perpetrated by the other side, and therefore be a cause of further division? Quis custodiet ipsos custodes?—who will watch the watchers? The dilemma is older than, well, the ancient Romans.

More than one speaker floated the idea of holding social-media companies accountable on grounds of product liability. The companies’ products cause “harm,” this argument goes, therefore the companies should be held liable, just like any company that puts a harmful or defective product on the market. But who gets to define harm, and therefore liability? Who gets to define defective, and by what standard? Such questions instantly return us to the beginning. Assuming we can even agree that there is a problem, who would be tasked with defining it, regulating it, punishing it? Whom would we trust to do so? Is there anyone—any entity—that we (in our patently divided state) could possibly agree on? Most important, who could even do so within the bounds of longstanding, even foundational legal principles? As Justice Robert Jackson wrote in the majority opinion in West Virginia State Board of Education v. Barnette: “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 . . . or other matters of opinion.”

Speaker after speaker, in session after session, ran up against this dilemma and stopped. We should do something, they all seemed to say. But what that something was, no one could say with boldness or precision, beyond suggesting some fairly minor technical and/or regulatory adjustments along the margins. Alone among the speakers, the University of Chicago law professor Geoffrey Stone ventured courageously into the heart of the dilemma. “I think it’s important,” he said, “to understand why the Supreme Court has been so skeptical about allowing organizations or individuals to be held accountable for disinformation or misinformation, except in very narrow circumstances like perjury and fraud and defamation of an individual. When you’re talking about public speech, what the Court has been quite concerned about is, Do you trust the government to decide whom to prosecute?” Lest the implication be lost on the mostly liberal crowd of conference attendees, organizers, and speakers (many of whom were pondering whether free speech was an outdated nicety that could no longer be safely afforded in full, and many of whom might have felt that government incursion wasn’t terribly worrisome, given the current configuration of the federal government), Stone went on:

So imagine the Trump administration having the authority to decide what is false on social media. Do you want to give them the power to make that decision? . . . And so one of the fundamental insights that the Court has had is that of course truly false speech is damaging in lots of ways. But if we give the government the power to decide which speech—or which false speech—to prosecute, then we run an enormous risk of them completely restructuring public discourse, and allowing the false speech they like, and disallowing the false speech they don’t like . . . So a lot of the reluctance to go down this road is the fear that if you do this, you know, if you allow a politician who makes a false statement in running for reelection to be prosecuted for making a false statement, the government’s going to decide whom to prosecute. And they’re not going to prosecute candidates in their party. They’re only going to prosecute candidates on the other side. So that’s part of the reason why the Court has been so reluctant to go down this road—because they see an enormous danger from it that ultimately could threaten democracy in an even more serious way than what we have now.

More than one speaker at the conference brought up Justice Louis Brandeis, doing so invariably not to affirm Brandeis’s famous argument that (in essence) the best remedy for bad speech is more and better speech but, instead, to assert that Brandeis’s formulation had been rendered quaint and inoperative by a high-speed info-sphere in which bad ideas can flourish and succeed. (Examples given included Stop the Steal conspiracies and vaccine skepticism.) The speakers seemed to think that bad ideas had never flourished and succeeded in open societies in the pre-internet age; that Brandeis (in his supposed innocence, writing from what they viewed as the leisurely and harmonious days of yore) had implied that more and better speech would always, ultimately carry the day; and that since it doesn’t always carry the day in the hurly-burly of contemporary social-media environments, the idea needs to be reconsidered—and probably scrapped. Brandeis, in this view, had never had to grapple with such consequential matters as those being discussed by the conference attendees. The presumption itself was rather quaint.

Among the chasmic lacunae of this view, the attendees seemed unaware that somewhat before the age of social-media platforms—in 1710, in fact—Jonathan Swift identified the problem of the rapid pace with which mis-/dis-/malinformation is promulgated, the very problem they so bewailed: “Falsehood flies, and the Truth comes limping after it.” Throughout the eighteenth and nineteenth centuries variations on Swift’s complaint (including that folksy apothegm misattributed to Mark Twain, “a lie can travel halfway around the world while the truth is putting on its shoes”) were remarkably plentiful, which would seem to demonstrate that even this aspect of the problem that the conference speakers discern as new is in fact hardly novel.

In any case, here, at some length, is what Brandeis wrote nearly a hundred years ago in his concurring opinion in Whitney v. California:

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; 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. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones . . .

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. 

A “fitting remedy,” as Brandeis well knew, isn’t always guaranteed to work, but that doesn’t make it any less fitting. If it did always work, there’d hardly be occasion for remedy. But in matters of public debate and dispute, the pursuit of technical or regulatory shortcuts for managing speech can be far more damaging—far more destabilizing—to the overall national health than the “evil counsels” those shortcuts aim to eliminate.

The problems discussed at the “Disinformation and the Erosion of Democracy” conference are hardly as unprecedented as many of the speakers declared; nor, of course, is the consequent temptation (evinced by many of the gathered luminaries) to consider trading liberty for order—or orthodoxy—in the face of unsettling change. But to make such a trade would be to erode democracy in the name of shoring it up, to declare the demos too cussed and corrupted—too misinformed—to be entrusted with the political system that bears their name.

___________

*Details of Barton Gellman’s dissemination of disinformation were added to this post on May 15, 2022, after its original publication.

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MIT has announced that, barely four months after playing their crucial roles in the canceling of Professor Dorian Abbot's lecture, its President is resigning his office and its Provost is leaving to assume the presidency of the Rensselaer Polytechnic Institute in Troy, New York--appropriately enough, one of only three institutions on which the Foundation for Individual Rights in Education (FIRE) has bestowed its Lifetime Censorship Award. Below is Benjamin Schwarz's October 2021 open letter challenging their conduct and their excuses for the same.

October 26, 2021

Dear President Reif, Provost Schmidt, and Professor van der Hilst:

As CEO and President of the US Free Speech Union, I write not to rehearse the criticism with which you are already amply familiar regarding the Department of Earth, Atmospheric and Planetary Sciences’ (EAPS) cancelation of Dorian Abbot’s John H. Carlson Lecture. Rather, I write to express my consternation regarding the public statements you have made in your efforts to defend or contextualize that decision. Those statements misconstrue and mischaracterize the meaning and purpose of academic freedom and of the scholarly public lecture. They reveal an unawareness of a host of historical topics with which academic leaders should be conversant. And, in some instances, they are so recklessly misleading that they approach calumny. In short, in a situation that demands clarity, rigor, and honesty, your statements contort scholarly principles.

You have issued a number of justifications, which President Reif and Provost Schmidt patronizingly label “facts,” to correct what you have averred are distortions introduced by “the media” (to quote President Reif and Provost Schmidt). According to you, these facts are: (1) It is “a mistake” to view the cancelation of Professor Abbot’s lecture “as an affront on [sic] academic freedom” (to quote Professor van der Hilst), because, as you all have explained, “Professor Abbot has the freedom to speak as he chooses on any subject” (to quote Provost Schmidt), just as EAPS has “the freedom to pick the speaker who best fits our needs” (to quote Professor van der Hilst). (2) Concomitantly, because the Carlson Lecture is an annual address in which MIT’s EAPS chooses a distinguished scientist to communicate her or his ideas about climate science to the public, not primarily to fellow scientists, academic freedom is not at issue. (3) Because some students and faculty at MIT have deemed distasteful Professor Abbot’s views on an unrelated topic—diversity, equity, and inclusion (DEI) policies in the academy—the controversy created by those students and faculty would “overshadow” (to quote Provost Schmidt) the purpose of the Carlson Lecture. (4) Professor Abbot is unfit to deliver the Carlson Lecture because of what Provost Schmidt has characterized as his “manner of presenting” his arguments regarding DEI policies, arguments that Professor van der Hilst states draw “analogies to genocide,” are “deeply offensive,” “inflammatory, polarizing,” and “stifle” discussion.

I address your assertions seriatim.

To issue bland assurances that MIT abides by “Professor Abbot’s freedom to express his views” (to quote Provost Schmidt) is merely to state that MIT won’t contrvene the Constitutions of the United States and of the Commonwealth of Massachusetts. The granting of that freedom is not within MIT’s gift. MIT’s avowal that Professor Abbot has a right not to be censored or punished by public authorities for his opinions is a public-relations stratagem unworthy of a university and is irrelevant to the issue at stake.

That issue, of course, is whether EAPS’s rescinding both of an invitation to a scholar to deliver a public lecture on his scientific work and of the academic honor that invitation bestows—a decision based not on academic or professional misconduct, but on the opinions that scholar has expressed—violates academic freedom and the related principle of freedom of expression. Your arguments in the negative evince, at best, a fundamental ignorance of those principles. (Here I commend to you several works on the history, meaning, and purpose of academic freedom and free expression in the academy, and on threats to the same: The Development of Academic Freedom in the United States, edited by Richard Hofstader; Academic Freedom in Our Time, by Robert M. MacIver; No Ivory Tower: McCarthyism and the Universities, by Ellen Schrecker; The Great American University, by Jonathan R. Cole; the two special issues of Social Research, edited by Arien Mack, “Free Inquiry at Risk: Universities in Dangerous Times,” Summer and Fall 2009; and Who’s Afraid of Academic Freedom?, edited by Akeel Bilgrami and Jonathan R. Cole).

The purpose of academic freedom is to promote the unfettered pursuit and transmittal of knowledge. In its founding document in 1915—on the eve of the still unmatched suppression of free thought in the academy that accompanied America’s entry into the First World War and the first Red Scare—the American Association of University Professors defined as one of the three elements of academic freedom the obligation of academic institutions to protect scholars’ “freedom of extramural utterance and action.” As you know, from that time through the anti-left wing witch hunts of the late 1940s and 1950s, continuing through the Vietnam era to now, the greatest threats to academic freedom have arisen precisely from that impulse to bar scholars from the academy and from academic discourse because some or most found their extramural opinions abhorrent. Robert Maynard Hutchins, generally considered the greatest university president of the twentieth century, defined the only way academic freedom can be defended in the face of that threat:

The only question that can be properly raised about a professor . . . is his competence in his field. His private life, his political views, his social attitudes, his economic doctrine, these are not the concern of his university; still less are they the concern of the public. I have no patience with the philosophy of “Yes, but” as applied to this matter. Any position short of the one I have stated will be found to involve such compromises that nothing is left academic of freedom.

In this light, what all of you cite as the “purpose and mission” (to quote Provost Schmidt) of the Carlson Lecture matters not a whit. All of you have invoked “public outreach”—a term redolent of corporate public relations—in arguing that in this case MIT need not act according to academic standards. That won’t wash. A university is not just primarily an academic institution—it is exclusively so. Just as it rightly enjoys the privileges that status bestows, so too must it adhere to the obligations that status enjoins. Here the only issue that matters is that MIT used non-academic criteria to silence a scholar in what is most certainly a pedagogical and university-sponsored pursuit, regardless of the lecture’s intended audience.

Just as important, your arguments that the Carlson Lecture should not be subject to the strictures of academic freedom because it is a public lecture betray a narrow and self-interested understanding of the academy’s role in public life. In endowing the lectureship, John H. Carlson defined its purpose: “to raise awareness about climate.” Indeed, the lectureship’s only stated mission is to communicate “exciting new results in climate science to the general public.” The lecture series does not exist to help EAPS, the Lorenz Center, or MIT enhance their public images. Presumably, Mr. Carlson believed, correctly, that the best way to fulfill the mission he promulgated was to fund a lectureship in which leading climate scientists (not, say, journalists, publicists, and policy advocates) illuminate science. For some eleven years EAPS has sought out the leading climate scientists throughout the world to transmit their work to a lay audience intent on learning science from the best in the field. EAPS judged Professor Abbot to be one of those scientists—and one who could effectively communicate significant scholarly work to the general public. In canceling Professor Abbot’s lecture, you have deprived that audience of the opportunity to listen to and learn from a person whom EAPS itself has judged to be a scholar with singularly important ideas to convey to the public. Surely those who attend the Carlson Lecture look to the speaker not for his or her extramural views, but for his or her profound scientific knowledge and understanding.

Provost Schmidt and Professor van der Hilst have attempted to rationalize canceling Professor Abbot’s lecture by alluding to the notion that the Carlson lecturer should be a “role model.” A thorough search of public documents and statements related to the Carlson Lectureship yields no mention of this criterion before Professor Abbot’s invitation was withdrawn, which could lead one to surmise that this supposed desideratum is in fact nothing more than an ex post facto justification for canceling Professor Abbot’s lecture. Regardless, aspiring scientists no doubt seek as role models scholars who have performed innovative and significant scientific research, and who have carried out their professional duties scrupulously and generously--not those scholars with whom they may agree on social, academic, or political issues. After all, it would have been a great loss to science, if, say, a gifted young biologist who was also a member of Young Americans for Freedom had spurned Richard Lewontin as an exemplar or mentor because of Lewontin’s outspoken Marxism. The US Free Speech Union takes no position on Professor Abbot’s opinions on DEI policies, but for the sake of argument I’ll stipulate that those views are wrong and even incendiary. Nevertheless, if one believes that the academy has a responsibility to ensure that members of the public have access to the thinking of the best scholars willing to speak to them, and that academic freedom, and therefore the advancement of knowledge, demands that those scholars be judged on their intellectual distinction and not by their opinions on politics or academic policy, then one is forced to conclude that it is not Professor Abbot who has failed to properly model academic values but the three of you.

The argument that academic freedom does not apply in the case of public lectures delivered under a university’s auspices is to invent a distinction unrecognized by the world’s great universities. Here is a fragmentary list of prominent scholars who made statements or issued lengthy arguments on political, social, and moral questions that many reasonable people rightly or wrongly deemed—to quote Professor van der Hilst’s condemnations of Professor Abbot’s views—“inflammatory,” “deeply offensive,” and “polarizing.” Parenthetically included are some of the renowned public lectures they delivered: Eric Hobsbawm (the Wiles Lecture, Queen’s University, Belfast; the Nobel’s Centennial Symposia; the Creighton Lecture, King's College, London), Edward Said (the Messenger Lecture, Cornell; the Christian Gauss Seminar, Princeton), Christopher Hill (the Ford Lecture, Oxford), Noam Chomsky (the Messenger Lecture, the Christian Gauss Seminar), Eugene Genovese (the William E. Massey Lecture, Harvard), Saul Bellow (the Romanes Lecture, Oxford), A.J.P Taylor (the Romanes Lecture). The list of distinguished scholars and their distinguished lectureships is, of course, wholly unsurprising. It would have been shocking if any of these institutions had withdrawn a lectureship invitation owing to a scholar’s extramural views; and it would have been beneath these institutions to have then waved away that breach of academic freedom by taking MIT’s position that academic freedom had, in fact, not been violated because, after all, to quote Provost Schmidt’s corporate-speak, the lectureship “is not a standard [academic] talk for fellow [academics]. It is an outreach event, open to the public.”

The three of you suggest variously muddled reasons for EAPS’s decision to cancel Professor Abbot’s lecture. Provost Schmidt states that “the debate” within MIT “over both [Professor Abbot’s] views on diversity, equity, and inclusion and manner of presenting them were overshadowing the purpose and spirit of the Carlson Lecture,” which prompted Professor van der Hilst to rescind Professor Abbot’s invitation. But why would “debate” over ideas that Professor Abbot has published prompt EAPS to cancel his lecture? Surely Provost Schmidt, the chief academic officer of a university, must understand that a unique and basic purpose of a university is to nurture—not to eschew—discussion, argument, and even strong disagreement on all subjects, especially uncomfortable and contentious ones. It is never the role of the university to avoid debate, regardless of the inconvenience caused by that debate. Since Provost Schmidt cannot possibly mean that the aim to avoid “debate” itself precipitated EAPS’s action, perhaps Provost Schmidt means that the vociferous objections to Professor Abbot’s ideas threatened to disrupt Professor Abbot’s lecture, which would, as President Reif declares, render impossible an “effective” lecture. But surely both President Reif and Provost Schmidt recognize the danger that the “heckler’s veto” (in both the legal and colloquial sense of the term) poses to free expression, generally, and to the free exchange of ideas in a university, specifically. President Reif and Provost Schmidt certainly recognize as well the university’s obligation never to wield, and to do all within its power to neutralize, that weapon. If they don’t, they should familiarize themselves with this passage from the University of Chicago’s Report on the Committee on Free Expression:

Although members of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe. To this end, the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it. (Emphasis added.)

Perhaps Provost Schmidt means that debate over Professor Abbot’s views on unrelated issues was drawing attention away from Professor Abbot’s lecture, an address that Professor Abbot, as much as the organizers of the lecture, hoped would elucidate his significant research in climate science. If that is the case, then EAPS and MIT squandered a crucial opportunity to demonstrate to the general public and to MIT’s students and faculty the vital role a university must play in preventing political differences from shutting down, or distracting from, the pursuit and transmission of knowledge, especially given MIT’s newfound enthusiasm for using the Carlson Lecture to promote a “model” of academic life.

After all, in many instances in the last century, American universities and cultural institutions barred apparent and real Communists and those perceived to be sympathetic to Communism from participating in and enriching academic, scientific, cultural, and intellectual life. Certainly, many of those responsible for that exclusion were intolerant opportunists; many others were people of good will who were convinced—not always unjustifiably—that the scholars, scientists, and intellectuals they were barring held beliefs, usually unrelated to their academic or intellectual work, that were antithetical not only to perceived national ideals and purposes, but to the widely accepted conceptions of democracy and tolerance. Whatever the motivation, the exclusion applied non-academic criteria to the academic mission, and thereby perforce vitiated the twin purposes of the university to extend and impart knowledge. In the same way, excluding Professor Abbot, indisputably an outstanding scientist, from presenting his ideas at the Carlson Lecture because some, correctly or not, find his views on DEI policies objectionable, necessarily diminishes “public understanding of and appreciation for climate science”—the inculcation of which is the very goal of the Lecture—and frustrates the academy’s role (desirable if incidental) in helping to develop an informed citizenry.

The circumstances surrounding this year’s Carlson Lecture, like those posed by Communist and supposed Communist sympathizers, demand a university leadership dedicated to the hard and no doubt unpleasant job of instilling within their institutions (and explaining to the public) the exacting discipline of academic freedom, a discipline that requires that views one finds objectionable be tolerated and protected and that recognizes that those who hold such views can be invaluable to the academic endeavor. In short, a university’s leadership must sustain an environment that expects and demands that, say, a linguist who is also a dedicated Zionist be as open and generous in arguing and collaborating with MIT’s Professor Chomsky in their shared academic field as I know Professor Chomsky would be with him or her. Furthermore, that leadership must ensure that what all of you call the university’s “public outreach” efforts help those outside the academy appreciate the distinctive, counterintuitive and therefore fragile set of values on which academic endeavor depends. Rather than withdrawing Professor Abbot’s invitation, MIT’s leadership could—and should—have exercised . . .well, leadership, by vigorously fostering an atmosphere in which Professor Abbot could elucidate his ideas on climate science to the public and interested MIT students and faculty.

Although both President Reif and Provost Schmidt praise Professor van der Hilst generally and approve of his decision to withdraw Professor Abbot’s invitation specifically, the explanations Professor van der Hilst offers for his decision differ in some significant ways from those of the President and the Provost. In interviews with The Tech, The Boston Herald, and The New York Times, Professor van der Hilst objects to a historical analogy that he claims Professor Abbot drew in presenting his views about DEI policies. Elaborating on his reasoning for withdrawing Professor Abbot’s invitation, Professor van der Hilst presents, chillingly, the general proposition that “Words matter and have consequences.” Professor van der Hilst’s New York Times interviewer reports that the Professor “drilled down” on Professor Abbot’s Newsweek article in explicating his decision to disinvite Professor Abbot. Professor van der Hilst declared that Professor Abbot’s “drawing analogies to genocide . . . is inflammatory and stifles the very respectful discourse we need.”

Professor Abbot draws two comparisons to Nazi Germany in his Newsweek article:

DEI violates the ethical and legal principle of equal treatment. It entails treating people as members of a group rather than as individuals, repeating the mistake that made possible the atrocities of the 20th century.

Ninety years ago Germany had the best universities in the world. Then an ideological regime obsessed with race came to power and drove many of the best scholars out gutting the faculties and leading to sustained decay that German universities never fully recovered from. We should view this as a warning of the consequences of viewing a group membership as more important than merit…

Of course, deciding what speech is “offensive” and “inflammatory” is an entirely subjective exercise. I credit Professor van der Hilst’s pronouncements that he is profoundly repelled by Professor Abbot’s analogies. For what it’s worth, I am not (by the way, every member of my European family save one was killed in the Holocaust). One could tenably argue that the comparisons Professor Abbot draws are overly broad and intellectually lazy, but to charge him with “drawing analogies to genocide” is itself slapdash and arguably inflammatory. (Professor Abbot argues that a mindset that gives primacy to group identity can make possible atrocities like those that occurred in the twentieth century—here, by the way, one surmises that he might be referring to Nazi, Soviet, and Communist Chinese atrocities.) Professor van der Hilst deploys his pique to justify what is, despite his uninformed assertions to the contrary, an abridgement of academic freedom and of the principles of free expression. Those justifications betray an unawareness of so many realities as to border on the unworldly. After all, few gambits in argument are as ubiquitous and timeworn as the intellectually slack resort to Nazi comparisons—the tactic was so widespread in 1951 that Leo Strauss coined the term reductio ad Hitlerum to encapsulate it, and the inevitability of succumbing to Nazi comparisons in any online debate was memorialized as “Godwin’s rule of Hitler analogies” in 1990. That Professor van der Hilst finds such comparisons inflammatory rather than irritating is far more noteworthy than Professor Abbot’s deployment of them. Furthermore, despite his no doubt sincere repulsion at Professor Abbot’s comparisons, surely Professor van der Hilst must know that confected, politically motivated outrage over reductio ad Hitlerum is nearly as stale and predictable as the practice itself. Recall how Republican columnists and politicians ginned up their indignation over the Claremont McKenna philosophy professor John K. Roth’s comparisons of the 1988 Israeli elections to Kristallnacht and of Ronald Reagan’s election to the Nazi rise to power, an event, Roth averred, that sent “the world reeling into catastrophe that virtually annihilated the Jews of Europe.” (Properly, Claremont McKenna had no reaction whatsoever to Professor Roth’s comparisons.)

Moreover, Professor van der Hilst seems strikingly unaware of the troubling questions raised by his pronouncements defending his decision to disinvite Professor Abbot. For instance, in the department that Professor van der Hilst leads, and at the university that extols his academic leadership, what, precisely, is the speech that, in his estimation, will “have consequences”? What, precisely, will be those “consequences”? And who, precisely, gets to determine what speech is offensive and where, exactly, that speech falls on the hypothetical scale of offensiveness? Would Professor van der Hilst exercise his influence or powers of moral suasion to exclude those scientists who publicly avow the slogan of Palestinian nationalism “from the river to the sea Palestine will be free”—a statement that many rightly or wrongly believe effectively advocates a genocidal program against Israel’s Jews—from speaking at the Perimeter Public Lectures, the Karl Taylor Compton Lectures, the James R. Kilian Lectures, the Ford/MIT Nobel Laureate Lectures (to name some of the public lecture series held at MIT)? If he would not, why not? What are the “consequences” that Professor van der Hilst believes should befall, say, a scholar and committed Marxist who fails to disavow Marx and Engels’s celebratory injunction, which some find polarizing and inflammatory: ‘“The next world war will result in the disappearance from the face of the earth not only of reactionary classes and dynasties, but also of entire reactionary peoples. And that, too, is a step forward”? (Emphasis added.)

Professor van der Hilst has ruled that the argument from historical analogy regarding the long-term impact of Nazi ideology on German universities disqualifies Professor Abbot from delivering a public lecture at MIT. Ironically, in 2005 another academic compared the permanent damage that Nazi ideology had imposed on German universities to the threat that he perceived “political pressures to conform to ideological beliefs” posed to academic freedom in American universities:

The stakes are high. The destruction of university systems has historically been caused by the imposition of external political ideology on the conduct of scholarly and scientific research…German universities still have not recovered from the catastrophe of 1933 when Hitler began to dismantle German science and technology by purging those researchers who did '‘Jewish science.’

Were that scholar to be invited to deliver a public lecture at MIT, would Professor van der Hilst argue that the invitation should be withdrawn, and would he publicly excoriate the scholar for engaging in speech that is “inflammatory, polarizing, and the opposite of creating space for respectful dialogue that we badly need”? Would Professor van der Hilst modulate his condemnation because the scholar who drew that analogy is Jonathan R. Cole, the Provost and Dean of Faculties at Columbia from 1989 to 2003 and the preeminent authority on the modern research university?

Surely Professor van der Hilst cannot be unaware that the most famous instances of reductio ad Hitlerum were the comparisons Cold War propagandists made between Nazi Germany and the Soviet Union and the comparisons that elements within the New Left made between Nazi atrocities and American foreign policy, generally, and American conduct in the war in Vietnam, specifically. Had Professor van der Hilst been a department chair in 1967, he would surely, consistent with his views today, have been among the many people, including many who opposed the war, who found the latter analogies “deeply offensive” and “polarizing, inflammatory.” He would have been no less affronted by the following indisputably inapt and inflammatory invocation of Nazi atrocities than he is by Professor Abbot’s clumsy analogizing:

What do [Vietnamese peasants] think as we test our latest weapons on them, just as the Germans tested out new medicine and new tortures in the concentration camps of Europe.

Professor van der Hilst would have been exquisitely sensitive to the perhaps hurtful impact that such provocative rhetoric would exercise on a university in which some sons, husbands, and brothers of student, faculty, and staff were fighting in Vietnam, and in which students, faculty, and administration had unusually close personal, professional, funding, and intellectual ties to the American military and the defense industry. Had the author of that statement—Martin Luther King, Jr.—been invited to deliver the Compton Lecture, no doubt Professor van der Hilst would have pressed for the withdrawal of the invitation, given that the Compton Lecture is a “public outreach event,” explaining that “besides freedom of speech, we have the freedom to pick the speaker who best fits our needs,” and that “words matter and have consequences.” Of course, were MIT to have rescinded an invitation to Dr. King, it would have breached the principle of campus free expression—but because King was not then engaged in the academic enterprise, academic freedom would not have been at stake. That hypothetical withdrawal, while a betrayal of a university’s commitment to free and open inquiry, would therefore have been a lesser offense than the cancelation of Professor Abbot’s lecture.

Once again, even were there to be universal and indisputable agreement that Professor Abbot’s Newsweek article is as repugnant as Professor van der Hilst contends, Professor van der Hilst’s decision to withdraw Professor Abbot’s invitation would nevertheless be a violation of academic freedom (and of the principles of free expression), because Professor van der Hilst’s bill of indictment is inadmissible in those courts.

The university is one of humankind’s greatest achievements. Its values, its mission, its concerns are singular. Academic freedom, as Louis Menand argued, “is the key legitimizing concept of the entire enterprise. Virtually every practice of academic life that we take for granted . . . derives from it.” Because academic freedom contradicts some of our most basic impulses, it is always vulnerable. It depends on those in your positions to safeguard it. You have grievously failed in your duties.

Yours sincerely,

Benjamin Schwarz

President and CEO, The US Free Speech Union

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On March 5, 2022 artist Sam Kerson filed an appeal against a court ruling that allows the Vermont Law School (VLS) to permanently conceal a pair of murals titled The Underground Railroad: Vermont and the Fugitive Slave behind a wall of acoustic tiles. Kerson painted the two 8’x 24’ panels in 1993 to highlight Vermont’s long history of opposition to slavery and to recognize the efforts of black and white Americans across the country in the service of freedom. At a moment when the call to reckon with our grim history of slavery is urgent and particularly loud on college campuses, why is this mural being covered?

Back in 2020, soon after the murder of George Floyd, two students, Jameson Davis and April Urbanowski, complained that a “group of BIPOC students…felt the mural to be inaccurate and dispiriting — so much so that a few decided not to study or interact with that part of campus.”  In response, then-Dean of VLS, Thomas McHenry announced that the law school no longer wanted the murals: “the depictions of the African Americans on the mural are offensive to many in our community and, upon reflection and consideration, we have determined that the mural is not consistent with our School’s commitment to fairness, inclusion, diversity and social justice.”  Because the murals are painted directly onto the walls and cannot be removed, the school first decided to paint over them but finally settled on covering them with acoustic panels that would hide the artwork without destroying it. 

Kerson objected. In December 2020 he filed a suit against VLS in the District Court on the grounds that permanently covering the mural constituted a violation of the Visual Artists Rights Act, a federal law passed in 1990 that protects a piece of artwork “from intentional distortion, mutilation, or other modification which would be prejudicial to [the artist’s] honor or reputation” during the lifetime of the artist. But in October 2021 US District Court Judge Geoffrey Crawford ruled in favor of VLS, allowing the school to entomb the murals permanently. Kerson is now appealing this ruling.  Explaining the rationale behind the ruling, Crawford distinguished between publicly defacing a work of art and removing it from view. He said that covering the murals without damaging them was akin to a museum removing a painting and putting it into storage.

Legal scholars’ opinions on Crawford’s judgment differ (see here), and on these I am not qualified to comment. But as an historian and an educator, I take issue with Crawford equating the covering of the murals permanently with museum storage. This comparison reveals a fundamental misunderstanding of the purpose of public art. True, the murals are in the custodial care of and displayed at a private institution and therefore are not strictly public art. Nevertheless, a modern mural, by virtue of its large-scale form and placement in common space, is intended to be viewed by a broad audience. The artist made the mural with the explicit aim of engaging the public, even if the public in this case is limited to those on the VLS campus. 

Inspired by the sociopolitical commentary of Mexican muralists, Kerson has used his art to contend with historical violence by revealing the power of resistance and human resilience. In fact, he and his wife Katah, have dedicated themselves to using their art as a means to drawing attention to various injustices including the massacre of indigenous populations, the barbarity of the death penalty, ravages of modern wars, human rights violations in different parts of the world and the trials and tribulations of refugees displaced and forced out of their homelands. As they note in their book Exodus which features their work on human migration to Europe, they see their role as artists to bear witness; to document and record the suffering and injustices. When Kerson painted The Underground Railroad specifically he meant to force viewers to reckon with America’s atrocities and honor its achievements, particularly the achievements of those who defended justice and human rights – appropriate aims for art in the setting of a law school, one would think. 

At a moment when college and university campuses vociferously demand recognition of current injustices, it is ironic that art that attests to the inequities of the past is under attack. Adding further irony, Davis and Urbanowski, the students who objected to Kerson’s murals, acknowledged that Kerson’s intention was to celebrate both black and white Americans who struggled to end slavery. They essentially argued that intention did not matter when they stated that “not all intentions align with interpretation.” 

Davis and Urbanowski objected to both the style and the content of Kerson’s art. The “depictions of Black people are completely inaccurate,” they maintained. “Regardless of what story is being told overexaggerating Black features is not OK and should not be tolerated. White colonizers who are responsible for the horrors of slavery should not also be depicted as saviors in the same light.” But art is not about accuracy – after all, a number of the white people in the mural are painted with green skin. Furthermore, art by definition resists a single interpretation. These students would do well to heed the words of Oscar Wilde: the moment that a spectator of art tries to "exercise authority” over an artwork “he becomes the avowed enemy of Art and of himself."

By insisting on an offensive interpretation of the murals, by refusing to see both the context in which the artwork was made and for what purpose, the students are dictating that a creative work can and must be read only in one way.  And by effectively effacing the murals, the students are denying to others the opportunity to engage with the art and thereby to respond to it themselves.

Even more disappointing, the school has capitulated to student demands rather than emphasizing the value of the murals as a means to engage seriously and meaningfully with social justice issues. The VLS board of directors and senior administrators have reneged on the school’s responsibility as an institution of higher education to cultivate historical literacy and equip students with the necessary skills to analyze and discuss difficult material. In an email in support of retaining the artwork, Robin Lloyd, a Vermont filmmaker and activist, hit the nail on the head: “An educational institution, especially a law school, should understand the danger of such a decision — removing public art that has been endorsed and created through a community process, merely because it may offend a certain group.”

I hope that the Second Circuit Court of Appeals will not only overturn the decision by Judge Crawford but remind VLS that it’s faltering in its primary mission of teaching critical thinking skills to budding lawyers. If the next generation of lawyers are not able to appreciate the importance of context and are incapable of resisting the tyranny of a single interpretation, struggles for social justice will inevitably be diminished. 

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Amna Khalid is an associate professor of history at Carleton College and a member of the CEO’s advisory council of the United States Free Speech Union.

As discussed in a recent U.S. Free Speech Union post on cancel culture, in 1948 the Fellows in American Literature—a committee of twelve distinguished writers appointed by the Librarian of Congress—awarded that year’s Bollingen Prize for American poetry to Ezra Pound, despite Pound’s having spent much of the Second World War broadcasting noxious anti-American and anti-Semitic propaganda from Fascist Italy. In fact, in 1948 Pound was incarcerated in a mental institution, waiting to stand trial for treason. More than four hundred thousand Americans had lost their lives as a result of that conflict, and the total American casualty count (killed and wounded) exceeded a million. Nonetheless, the committee that awarded Pound the prize justified its decision thus: “To permit other considerations than that of poetic achievement to sway the decision would destroy the significance of the award and would in principle deny the validity of that objective perception of value on which any civilized society must rest.” Exactly right.

Discounting geopolitical considerations and following the same objective perception of value on which any civilization must rest, Stateside performance halls similarly welcomed the Soviet Union’s Bolshoi Ballet on multiple American tours throughout the decades-long Cold War—a conflict that included such lowlights as the Soviet building of the Berlin Wall, the Soviet crushing of the Hungarian Uprising, the Soviet invasion of Czechoslovakia to put down the Prague Spring, and the Soviet invasion of Afghanistan. The Bolshoi’s 1962 American tour coincided with nothing less than the Cuban Missile Crisis, and the troupe’s 1966 American tour came at a time when the Soviet Union and the Warsaw Pact were providing material support to the very forces the United States was fighting in Vietnam (much as the United States is now providing material support to the forces Russia is fighting in Ukraine). Almost sixty thousand Americans lost their lives in the Vietnam War. Nonetheless, the Bolshoi’s American shows, and tours, went on, in honor of both civilization and the objective perceptions of artistic value on which—partly—it rests. It didn’t matter that (yes, of course) the Bolshoi tours doubled as propaganda extolling the excellent achievements of Soviet culture and society. The excellence was the thing.

However, despite that long, admirable record of affirming civilization and culture in the face of geopolitical strife, world-renowned Russian soprano Anna Netrebko now finds herself dismissed by New York’s Metropolitan Opera for, in essence, refusing to take a disloyalty oath against her home nation in response to Russia’s invasion of Ukraine. She has unambiguously denounced the invasion itself (a conflict in which almost no Americans have participated, and if so voluntarily, and in which official U.S. involvement has been scrupulously indirect). Yet her refusal to denounce her country’s government outright is—in today’s overheated political environment—a morals-clause violation warranting dismissal. Art these days must yield to politics, all the more so, perhaps, when (in the American context vis-à-vis Russia’s invasion of Ukraine) those politics are as limited and gestural as they are.

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In a 1949 editorial titled “Homage to Twelve Judges,” the author, editor, and critic Dwight Macdonald celebrated the controversial awarding of the Bollingen Prize to Ezra Pound, commending the Fellows in American Literature for not letting Pound’s disreputable politics influence the committee’s appraisal of Pound’s artistic achievement. After all, Macdonald argued, “one of the most repellent aspects” of Soviet communism and, for that matter, Italian fascism was that there was no prospect of discerning objective value under such systems. He noted as well that in order to preserve any chance for objectivity, it is of utmost importance that “no one sphere of human activity [be] exalted over the rest” and that “clear distinctions be maintained between the various spheres, so that the value of an artist’s work or a scientist’s researches is not confused with the value of their politics.” The dismal alternative, he remarked, is “the obliteration of the boundary lines between the various aspects of culture—or better, the imperialist conquest of all the rest by politics.”

A man of solid left-wing and anti-fascist credentials, whose independent-mindedness compelled him at times to criticize the left, Macdonald lamented the following about the Bollingen affair: 

It is ironical that it is precisely those who are misnamed “liberals” . . . who seem to be least enthusiastic about the Pound award. What bothers them is the very thing that is healthiest, politically, about it: the fact that Pound’s treason and fascism were not taken into account in honoring him as a poet.

Would that the Met did not take Anna Netrebko’s politics (which are benign compared with Pound’s) into account when deciding whether to retain her as a singer. Had it done so, it would nobly have affirmed—in the tradition of the Bollingen committee and the Cold War American tours of the Bolshoi Ballet—that all the other aspects of existence (personal, creative, professional, social, cultural, intellectual) should not be allowed to be taken over by a crude and fervent politics. “The horror of Soviet communism,” Macdonald noted, “is that it reduces the individual to one aspect, the political.” He then posed the following question: “Is not the literal meaning of ‘totalitarianism’ just this pretension of the political power to control the totality of human life?”

This crude and fervent brand of politics is behind the unforgiving morals codes by which, in this case, a singer of great renown can be dismissed summarily for having opinions that are too reserved for the current political fashion, opinions that, furthermore, are not in any way related to her art. (In some instances, art and politics do overlap, of course, as in the case of German filmmaker Leni Riefenstahl. But even Riefenstahl’s art, as such, is acknowledged to be exquisite, despite its loathsome political content.) The Met pressured Netrebko to name names (or at least one name: Putin), and because she refused, it found her in virtual contempt and blacklisted her. By thus aiding “the imperialist conquest of all the rest by politics,” the Met has disgraced itself as a cultural institution. And by succumbing to punitive moral hysteria, it has helped degrade our culture and our society overall. 

Peter Gelb, the Met’s general manager, told the New York Times last month that, “It’s hard to imagine a scenario in which she will return to the Met.” Netrebko, for her part, has more recently reiterated her opposition to the invasion and has tried to clarify that although she loves her home country, she is not allied with Putin. She has further said she acknowledges and regrets that her “past actions or statements . . . could have been misinterpreted.” All of which has earned an imperious shrug from Gelb: 

“Having read Anna’s statement, we’re not prepared to change our position. If Anna demonstrates that she has truly and completely disassociated herself from Putin over the long-term, I would be willing to have a conversation.”

When speaking to the Times, Gelb attempted to confuse the issue: “We’re not undertaking an artistic witch hunt. We’re not interviewing or interrogating any artists about their positions.” By trying, in his weaselly way, to distance himself from what the anti-Communists did in the 1950s, Gelb is announcing that he is, instead, doing what the Stalinists did in the 1930s: demanding self-denunciations. Gelb insists on a retroactive political orthodoxy, and dictates that any deviations from said orthodoxy be corrected by self-flagellation. Since Netrebko has, in the past, voiced support for Putin and the Russian government, support that Gelb now finds politically unacceptable, she must recant on pain of cancellation. And then maybe recant some more.

Gelb is protesting too much. It may not exactly be a witch hunt; rather, it is summary punishment for heresy. And now, irony of ironies, owing to her twice-avowed opposition to the invasion and her recent attempts to satisfy Gelb’s demands for renunciation—attempts that Gelb, as an American, could afford to dismiss as equivocal and insufficient—Netrebko has found herself cancelled in Russia as well. Gelb’s moral posturing through political intimidation is cost-free for him—in fact, he gets to luxuriate in and be praised for his right-thinking. But it has put Netrebko in political, pecuniary, and cultural jeopardy in her home country. This is what comes—at home no less than abroad—of the totalitarian tendency that Dwight Macdonald warned us about.

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In recent years, Americans have increasingly confused the right to free speech with a supposed right to disrupt and shout down the speech of others—speech they deem harmful, dangerous, or otherwise intolerable. This likening of speech to harm and danger puts society dreadfully close to viewing speech as an invitation to physical confrontation, like an old-fashioned gang fight. One side marshals its members and shows up heavy, aiming to put members of the other side to rout, not through force of argument (i.e., suasion) but through sheer verbal force (i.e., volume). Sometimes such confrontation actually does become physical.

This recent trend got its start when generally progressive students at some of the country’s most elite colleges and law schools began disrupting the scheduled appearances of public figures who had been invited to speak by other students at the respective schools. These public figures, as indicated above, were deemed to be trafficking in harmful, dangerous (right-wing) ideas and therefore needed to be silenced—not just protested, not just debated: silenced. More recently, generally conservative suburban parents have gotten in on the act, using similarly disruptive tactics to break up school-board meetings in protest of (left-wing) school policies relating to everything from mask mandates to transgender accommodations to the teaching of critical race theory.

We don’t normally associate hooliganism with suburban parents and privileged, elite college students, yet there they are on the inevitable cell-phone videos that emerge from these events, banging on tables, chanting loudly over the proceedings, shouting out physical threats, raising their middle fingers, and letting obscenities fly. 

We’ve been here before, alas.

In early December of 1860, mere weeks after the election of Abraham Lincoln and mere months before the start of the American Civil War, Frederick Douglass and a group of abolitionists endeavored to hold a public meeting in Boston on the subject of how to end slavery in America. The meeting, somewhat pointedly, was scheduled to occur near the one-year anniversary of the death of the radical abolitionist John Brown. Even in the North, however, opinion on the matter of slavery (or at least on the matter of how vigorously its abolition should be pursued and at what cost to national unity) was divided. A mob descended on the meeting hall, shouted down the would-be speakers, and overran the stage. Municipal authorities, who had been derelict in forestalling the chaos, eventually dispersed the entire crowd (speakers and protesters alike). The meeting was thus broken up before it ever really got started. It was a classic case of the heckler’s veto at work, and of the heckler’s veto being allowed to work by passive authority figures (the mayor and the police, in this case) whose responsibility it was (and is) to ensure that the fundamental American right to free speech is not curtailed or denied by inflamed mobs, no matter how sure those mobs are of their own righteousness. 

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Like today’s wilding parents and college students, the people who broke up the abolitionist meeting were otherwise pillars of society, defenders of law and order, presumed exemplars of public spiritedness and the common good. During a now landmark speech at Boston’s Music Hall a week later, Douglass (an escaped slave turned statesman) remarked, “These gentleman brought their respect for the law with them and proclaimed it loudly while in the very act of breaking the law.” Apropos the pretensions of this group of upstanding citizens, he added: “when gentlemen approach us in the character of lawless and abandoned loafers,—assuming for the moment their manners and tempers,—they have themselves to blame if they are estimated below their quality.”

But Douglass’s indictment wasn’t just one of privilege run amok. “There can be no right of speech,” he avowed, “where any man, however lifted up, or however humble, however young, or however old, is overawed by force, and compelled to suppress his honest sentiments.” Furthermore, Douglass argued that the violation is twofold, victimizing not just the speaker but the would-be listener: “Equally clear is the right to hear. To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker. It is just as criminal to rob a man of his right to speak and hear as it would be to rob him of his money.”

However, following immediately upon that observation, he slyly acknowledged that by allowing the gentlemen-hecklers to carry the day, the Boston mayor and police force had, in essence, privileged the hecklers’ dissent (that is, the hecklers’ right to speak) over his and his fellow abolitionists’ right to speak: “When a man is allowed to speak because he is rich and powerful, it aggravates the crime of denying the right to the poor and humble.” Such an act of omission on the part of state authorities verges on a tacit, state-sanctioned suppression of speech, achieved through the unopposed violations of nonstate actors. Thus is the First Amendment violated in spirit—in principle—if not in a narrowly legal sense. 

Progressives and moral reformers, Douglass argued, should be those most enthusiastic about the right of free speech, since it is “the great moral renovator of society and government.” Accordingly, that same right, per Douglass, “is the dread of tyrants. It is the right which they first of all strike down. They know its power.” Furthermore, the exercise of tyranny—which thinkers such as Edmund Burke and John Stuart Mill understood as well as Douglass—is not limited to exalted individuals possessed of inordinate political power. Tyranny can be practiced just as effectively, if not more effectively, by inflamed, self-righteous mobs and the societies (and governments) that tolerate them. “The tyranny of a multitude,” Burke noted, “is a multiplied tyranny.” Further still, it is a tyranny, per Mill, that is potentially more insidious, because “when society is itself the tyrant . . . its means of tyrannising are not restricted to the acts which it may do by the hands of its political functionaries.” Not only is social tyranny not limited to political means, it is also not subject to constitutional constraints on the exercise of political power. The victims of society’s suppression of speech are therefore left without constitutional remedy.

Thus is speech silenced without there being any direct violation of the First Amendment. Yet when we allow a speaker to be overawed by force, we effectively nullify not only his or her right to speak but our own as well (potentially, inevitably), since a right made contingent for one is a right made contingent for all. And when we evince unconcern over this, either because our sentiments (for the moment) align with those of an inflamed mob or because we’re taking a strictly legalistic view, we make a mockery of the principles embedded in the First Amendment (that is, the reasons behind the rights expressed). We’re basically allowing a series of proxy wars to be waged on our very own right to free speech. And we do so, per Douglass, at our own risk: “Liberty is meaningless where the right to utter one’s thoughts and opinions has ceased to exist.”

Far better (both nobler and more effective) options exist for the agitated college students and the agitated suburban parents. When the occasion arises, the former can set up protests outside the venue at which the offending speech is to occur. Or the students can go inside and challenge the speaker through aggressive if respectful (that is, nondisruptive) debate, during an allotted question-and-answer session. Or they can run editorials through whatever outlets. Or they can invite speakers more to their liking to come to campus as a kind of rebuttal. Anything is better and more effective than stifling speech. And for the disgruntled suburban parents, there is the simple matter that school boards are subject to scheduled elections, such elections (at any level of government) being in essence recall elections, and the vote itself—of course—being a form of speech. Further, parents are free to run for the board themselves. Until such elections, however, many of the options available to college students are available to the parents as well: protests outside the venue, respectful if aggressive debate inside the venue, editorials, etc. Breaking up the proceedings to silence the speaker or speakers is not the answer. 

Unwanted ideas don’t go away just because an unwanted speaker is chased off or an unwanted agenda is disrupted. Such ideas merely go underground, and become potentially more potent, which means we will have voluntarily sacrificed our rights for nothing.

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The Fellows, as mentioned above, were a distinguished bunch: Conrad Aiken, W. H. Auden, Louise Bogan, T. S. Eliot, Paul Green, Robert Lowell, Katherine Anne Porter, Karl Shapiro, Theodore Spencer, Allen Tate, Willard Thorp, and Robert Penn Warren. But few individuals then living had made as significant a contribution to twentieth-century Anglophone culture as Pound, who—when not producing his own influential poetry—had mentored, edited, and ushered into publication such modernist titans as Eliot, Ernest Hemingway, and James Joyce. But if anyone was cancelable in the immediate postwar years, it was Ezra Pound.

In the months following the Bollingen announcement, he, the Fellows in American Literature, and even the Library of Congress came in for pointed criticism. Writing in the Saturday Review of Literature, the Pulitzer Prize–winning (and antimodernist) poet Robert Hillyer cited The Pisan Cantos’ “ruthless mockery of our Christian war dead.” Practicing some guilt by association while also foreshadowing today’s rhetorical gambit of likening words to culpable violence, Hillyer ominously added: “That fact may place the award, and the committee on the Bollingen prize, in an observable relationship to our dead.”

Pound himself was labeled a “moral degenerate” and a “moral leper” by Connecticut Congressman James T. Patterson, who observed that the award-winning collection contained “obscenities to an excessive degree” and that it further made “many derogatory references to Jews and Negroes.” Characterizing the work as nothing less than “literary slander,” he, along with New York Congressman Jacob K. Javits, called for an investigation into the Library of Congress itself, owing—as Javits said—to the apparent “infiltration of Fascist ideas” into the institution. “This would not be thought control,” Patterson felt the need to insist, “but rather a rational and pertinent investigation of a shameful act.” This, too, has echoes in today’s debates about cancel culture, whereby—at one and the same time—cancellation is said never to occur and is quickly justified on supposedly exceptional moral grounds every time it does.

In an editorial titled “Homage to Twelve Judges,” published in the Winter 1949 issue of his short-lived journal Politics, Dwight Macdonald by contrast called the Bollingen committee’s honoring of Pound not only not shameful but “the brightest political act in a dark period.” He was quick to admit that “Pound’s situation is disreputable and hopeless to a dramatic degree,” and even made sure to acknowledge that the poetry collection for which Pound had just been honored was not “by any means free of its author’s detestable social and racial prejudices.”

But political, personal, or social disrepute, Macdonald argued, should not be a consideration when deciding who merits a poetry prize, or when deciding the merits of any other creative or intellectual endeavor. He cited with great praise the committee’s own wording justifying its selection of Pound for the prize: “To permit other considerations than that of poetic achievement to sway the decision would destroy the significance of the award and would in principle deny the validity of that objective perception of value on which any civilized society must rest.”

In other words, the committee would not let Pound the fascist, Pound the racist, Pound the anti-Semite, and Pound the barking-mad crank distract it from its task of judging Pound (and other finalists for the prize) on strictly poetic grounds. Macdonald noted that “one of the most repellent aspects” of both Soviet communism and the Italian fascism of Ezra Pound’s heart was that there was no possibility of discerning objective value under such systems. He argued further that in order to preserve any hope of objectivity, it is vital that “no one sphere of human activity [be] exalted over the rest” and that “clear distinctions be maintained between the various spheres, so that the value of an artist’s work or a scientist’s researches is not confused with the value of their politics.” The woeful alternative, he noted, is “the obliteration of the boundary lines between the various aspects of culture—or better, the imperialist conquest of all the rest by politics.”

Macdonald and the committee were not alone in defending the principle of objectivity. Some even invoked the judgment of future generations in justifying why temporal political passions (and fashions) should never be allowed to influence one’s appraisal of artistic or intellectual achievement. According to an editorial in the New York Herald Tribune, the Bollingen committee, by emphasizing its objective approach, had “acted in the only way that is open to men who are sensitive to a later verdict of history.” And in an ambivalent review of The Pisan Cantos for the Quarterly Review of Literature, the poet Richard Eberhart wrote:

An approach to the work as poetry is necessary and more rewarding, at least to me, than reading the Cantos as political, economic, or sociological manifestoes. Fifty years will remove the politics and leave the poetry. The Cantos can be read disinterestedly, which is only to pay them their due as art.

Dwight Macdonald, it should be stressed, was not hiding any secret sympathy for Ezra Pound’s politics in his praise for the Bollingen committee’s selection. Macdonald was a consistent opponent of totalitarianism and authoritarianism wherever he found them, whether in Stalinism or in Italian fascism. Like Pound, Macdonald did object to aspects of America’s involvement in the Second World War, but Macdonald’s objections were lucid and specific. (For instance, he was aghast at the Allies’ embrace of full-scale aerial bombardment of civilian centers.) He went on to play an almost inadvertent but germinal role in America’s War on Poverty, and was actively opposed to the country’s involvement in Vietnam. His liberal bona fides were solid. 

Hence this lament from “Homage to Twelve Judges”:

It is ironical that it is precisely those who are misnamed “liberals” . . . who seem to be least enthusiastic about the Pound award. What bothers them is the very thing that is healthiest, politically, about it: the fact that Pound’s treason and fascism were not taken into account in honoring him as a poet.

Macdonald, like his friend George Orwell and like Lionel Trilling, was an independent-minded man of the left who was also at times critical of the left. Given his “Homage to Twelve Judges,” one suspects that were he alive today he would regret the degree to which American liberalism has embraced the illiberalism of cancel culture, and that he would especially regret that it has done so as a form of political opposition to societal factors it seeks to eradicate through social and cultural erasure. But perhaps his regret, like (arguably) his enthusiasm for the Bollingen committee’s justifications, would be rooted in a false dichotomy of the sort the poet Peter Viereck thoughtfully addressed in a 1951 issue of Commentary magazine:

The famous New Criticism’s method of analysis tends to treat a poem by itself, like a self-created airtight-sealed object, outside cause and effect. By discarding a poem’s irrelevant historical, psychological, and “moralizing” encrustations, the “new critics” have splendidly taught us to read the text itself. But by also discarding the relevant historical, psychological, and ethical aspects, they are often misreading the text itself.

A reader’s response to a poem is a total response, a Gestalt in which aesthetic as well as ethical, psychological, and historical factors are inseparably fused together. It is a self-deception to try to separate them and to discover some alchemistical quintessence of isolated “pure” aesthetics, to be judged only by certified “pure” mandarins of criticism. It may be argued that this inextricability of form and content is undesirable; in any case, that it exists is undeniable, with the Pisan Cantos only one example among many. This inextricability prompted Paul Valéry’s wise warning: “To construct a poem that contains only poetry is impossible. If a piece contains only poetry, it is not constructed; it is not a poem.” 

In other words, one can—objectively and in good faith—dispute the precise substance and contours of objectivity itself. Objectivity, after all, is an ideal to be pursued, not a matter of rhetorical exactitude that can be invoked peremptorily. That said, since the critical premise of aesthetics being separate and pure has of late given way to “the imperialist conquest of all the rest by politics,” it is still fair to suppose that Macdonald—for sound and objective reasons—would dissent from today’s orthodoxy of dissent (to paraphrase Lionel Trilling) and would denounce cancel culture as vigorously as he did its mere potential more than seventy years ago. 

Of course, it wouldn’t have been tantamount to canceling Ezra Pound had the Bollingen committee simply awarded the prize that year to a different poet. However, if the committee had done so in objection to Pound’s political infamy and not because it had deemed his poetry aesthetically less than best, the act genuinely would have represented the first stirrings of a totalitarian impulse, one by which all other aspects of existence—personal, creative, professional, social, cultural, intellectual—are taken over by a crude and fervent politics. “The horror of Soviet communism,” Macdonald noted, “is that it reduces the individual to one aspect, the political.” He then asked, “Is not the literal meaning of ‘totalitarianism’ just this pretension of the political power to control the totality of human life?”

What’s perhaps even worse, and more pertinent to our present concerns, is that this crude and fervent brand of politics operates (per Congressman Patterson’s talk of shame and moral degeneracy) as a kind of ruthless moral code, one that is without grace or forgiveness, one from which those found in violation are summarily and permanently cast out, to serve as living reminders to others of the consequences of deviating from the code. This amounts not just to depriving respective individuals of their standing (those hastily judged to be moral/political deviants). It amounts to peremptorily depriving the rest of us of the creative and/or intellectual contributions those individuals might otherwise still have made, perhaps even ones they already have made. Succumbing to such punitive moral hysteria thus degrades our culture and society overall.

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by Nicholas Schwarz

In the years leading up to America’s entry into World War II, the US was embroiled in what today we might call a culture war.  Revolutionary mass social movements from abroad had found adherents in the United States. Communism and Socialism both exerted a considerable influence on the American labor movement, and the Italian variant of Fascism was admired within the American Legion as an explicit analog to the Legion itself. The hostility these movements displayed toward one another raised the prospect of great social unrest that some feared might threaten the very foundations of democracy. Meanwhile, homegrown agitators such as the Ku Klux Klan, the anti-Semitic Christian nationalists Father Coughlin and Gerald L. K. Smith, and assorted groups, including, again, the American Legion, fashioned themselves crusaders for what came to be called “Americanism,” further exacerbating tensions. The apparent threat to democracy from such groups led some influential politically progressive intellectuals and jurists to argue that free speech had to be contained, lest anti-democratic forces use the tools of democracy to subvert democracy itself. 

In this charged atmosphere, the Stars and Stripes, naturally, was a ready symbol around which one could demonstrate (or fail to demonstrate) adherence to the attitudes, rituals, politics, and religion of the at-times belligerent new social creed of Americanism. The Jehovah’s Witnesses were frequently targeted, both for their curbside proselytizing and for their unpatriotic scriptural interpretation, which equated saluting or pledging allegiance to the American flag with worshipping a false idol. In Rochester, New Hampshire, one such Witness, Walter Chaplinsky, having failed to make such a salute, was set upon by a violent mob and subsequently arrested, charged with having violated the peace. Outraged, he called the arresting officer who had failed to protect him from the mob a “damn Fascist”—an outburst that gave rise, however ironically, to the fighting-words doctrine. Eighty years ago today, on March 8, 1942, in upholding Chaplinsky’s conviction, Supreme Court Justice Frank Murphy, in Chaplinsky v. New Hampshire, defined fighting words as “those which by their very utterance inflict injury or tend to incite an immediate breach of peace.” Such words, per the doctrine, are beyond the protection of the First Amendment.

Since that unanimous decision, the Supreme Court has steadily walked back the doctrine, placing greater and greater restrictions on its application for fear of endorsing state suppression not just of words but of the ideas behind them. At the same time, however, a note of dissent has steadily sounded alongside this increasing restraint, and the Court has thus far refrained from overturning the doctrine. Meanwhile, as the history of fighting-words jurisprudence amply attests, because the fighting-words doctrine was and remains “good law,” counties and municipalities have often deployed it to quell dissent, which they have generally conflated with disruptive speech. As part of a body of disorderly-conduct law, the fighting-words doctrine is disproportionately applied to the poor and minority citizens with whom local law enforcement most frequently interacts.  Police and prosecutors are largely free to define words and behavior—especially that which challenges police action—in whatever way best suits a charge of disturbing the peace. Such broad and sometimes arbitrary latitude on the part of the state and its law-enforcement apparatus is precisely what the Court has withheld in those fairly rare fighting-words cases that have reached it. Nevertheless, the Court has lacked the conviction to eliminate the fighting-words doctrine outright; instead it holds the doctrine in reserve, perhaps, as the essay below suggests, owing to the apparent belief that homegrown social unrest may yet reach proportions warranting the doctrine’s use. The Court’s irresolution has placed an undue legal burden on already disadvantaged people, who suffer from the perpetuation of an exception to their First Amendment rights. The essay below analyzes the background to, and strange career of, the “fighting words” doctrine.

Note: Please see the link to the endnotes for this essay at the end of the essay.

On April 6, 1940, in Rochester, New Hampshire, Walter Chaplinsky was arrested for the words he spoke. Convicted and sentenced to six months in prison for calling a police officer “a damn Fascist,” he appealed his case to the New Hampshire Supreme Court, arguing that his “fundamental liberties of speech, press and worship” had been breached.[i] Eventually, he would take his case to the United States Supreme Court, which, in a 1942 unanimous decision upholding his conviction, defined a new category of expression that it deemed unprotected by the First Amendment. Declaring “the social interest in order and morality” to be paramount, Justice Frank Murphy’s opinion in Chaplinsky v. New Hampshire excluded “fighting” words—“those which by their very utterance inflict injury or tend to incite an immediate breach of peace”—from speech safeguarded by the Constitution.[ii]

Over the next 80 years, the Chaplinsky decision and the fighting-words doctrine that it spawned have reflected America’s wider political, social, and racial struggles. The doctrine has been contested by civil-rights demonstrators,[iii] racist agitators,[iv] anti-war dissenters,[v] and the American Nazi Party;[vi] by citizens who have challenged abusive government conduct[vii] and by cross burners.[viii] The doctrine was idealistically invoked by the liberal Supreme Court Justice Robert Jackson as a bulwark against totalitarianism,[ix] and has been similarly invoked by the conservative Justice Samuel Alito to protect grieving families from homophobic vitriol.[x] It has been cited by Justices of all political bents both to safeguard cherished emblems of democracy[xi] and to nurture “ordered liberty”[xii] against what they have seen as the corrosive effects of savage public discourse.[xiii] Far more commonly, it has, as a matter of course, been incorporated into state and municipal disorderly conduct statutes and ordinances.[xiv] In that capacity, it has impinged on the lives of ordinary citizens, disproportionately the poor and minorities, as it is deployed by the agents of local law enforcement. It has been used to deter disorder, to combat racial and sexual harassment, and also—as the Supreme Court itself has established—to quash peaceful if vociferous dissent.[xv] The doctrine has also facilitated “harsh and discriminatory enforcement by local prosecuting officials against particular groups deemed to merit their displeasure,”[xvi] vested in police officers “unfettered discretion to arrest individuals for words or conduct that annoy or offend them,”[xvii] and indulged “the eternal temptation . . . to arrest the speaker rather than to correct the conditions about which he complains.”[xviii]

Soon after its ruling, the Court began to apprehend the danger that the Chaplinsky decision posed to civil liberties. Conceived at a time when the country seemed vulnerable to rabidly intolerant and potentially hate-mongering internal forces, the fighting-words doctrine was deliberately broad and ambiguous. It was designed to support, if necessary, efforts to check what seemed to be an emerging home-grown menace. But as anxiety over the peril receded, the Court was left with a doctrine that could not be applied for fear of destroying the values it had been created to protect. Despite hearing numerous cases that invoked the fighting-words doctrine, the Court has ultimately shrunk from affirming its use. Ironically, in fact, the only ruling the Court has upheld with fighting words convicted the very sort of person—a member of a despised minority—that the Court had intended the doctrine to defend. 

Chaplinsky stood on the busy corner of East Wakefield and Main Street, facing what remained of the Rochester Common. Within sight of the statue of Amos Main, first pastor of Rochester’s Congregational Church[xix] (the original dissenting American religion), he preached the convictions of his faith—the Jehovah’s Witnesses—and distributed the sect’s literature. A mob of about 50 or 60 men derided and threatened him, insisting that he prove his loyalty to the United States by saluting an American flag, an act that the Witnesses’ faith prohibited. Rochester’s Marshal, James Bowering, arrived. Ignoring the restive mob, Bowering asked Chaplinsky why he could not “preach his religion without riling the people up so,” while another man, Bowman, grabbed Chaplinsky’s collar and tried to punch him, demanding, “Do you believe in saluting the flag?” Wrenching free, Chaplinsky asked Bowering to arrest his assailant. “I will if I feel like it,” Bowering replied.[xx]

Bowering and Bowman both left the scene, but Bowman soon reappeared with a staff to which he had affixed an American flag. Lunging with his lance-like weapon, he attempted to impale Chaplinsky. Chaplinsky dodged the blow, but Bowman pushed him into the gutter. The mob surged, and several men, including Sheriff’s Deputy Ralph Dunlap, punched Chaplinsky repeatedly in the face within sight of a police officer who was directing traffic a short distance away. Finally, the mob dispersed, and more officers arrived. They made no attempt to detain any assailants. Instead, they—including Deputy Dunlap—berated Chaplinsky, as they “swung [him] over the street staggering” to the police station, according to Chaplinsky’s testimony. “They were mistreating him, roughly handled,” a witness testified. “Pulling him and pushing him.” Chaplinsky implored Marshal Bowering to “please arrest the ones who started this fight.” According to Chaplinsky, the marshal replied, “Shut up, you dumb bastard, and come along.” Whereupon Chaplinsky responded, “You are a damn Fascist and a racketeer,” adding that if Dunlap was a deputy sheriff, “this whole city officials of Rochester are Fascists.” To which, according to Chaplinsky, Dunlap replied, “You son of a bitch, we ought to have left you to that crowd there and have them kill you.”[xxi]

Rochester’s city solicitor had previously advised Bowering that he could not stop Chaplinsky from preaching, but now the marshal believed he had reason for an arrest. “Sit down, you unpatriotic dog,” a witness heard Bowering say. “I am going to arrest you for calling me a God damned Fascist.”[xxii] Bowering was not sure, however, what specific law Chaplinsky had breached, as evidenced by his leaving the space for “offense” on the docket blank.[xxiii] Eventually, Chaplinsky was cited for violating an expansive law rarely invoked, which prohibited addressing “any offensive, derisive, or annoying word to any other person who is lawfully in the street or any other public place.”[xxiv]

The mob assault on Chaplinsky, abetted by the police, can only be explained in light of a persistent and intolerant nationalism that was intensifying as America prepared for war. In this context, the Jehovah’s Witnesses, a sect that saw patriotism as a false idol that enticed men to “the butchery of their fellows,”[xxv] appeared as a dangerous affront to those who demanded conformity and conspicuous displays of national loyalty. Although the population remained divided on the question of intervention in support of the Allies, much of the country seemed united in a rabid nationalism and fear of subversives.[xxvi] 

In the period leading up to America’s entry into World War II, the body politic increasingly insisted on what the legal historian Vincent Blasi has described as a “pathological” degree of conformity.[xxvii] Amid rising public tension, Congress instituted the House Un-American Activities Committee (HUAC), an instrument that, with its broad powers to subpoena and hold witnesses in contempt, menaced civil liberties. In its efforts to root out subversion, HUAC, under the chairmanship of the right-wing Texas representative Martin Dies, almost entirely ignored pro-Nazi groups. Instead, the committee targeted Communists, alleged Communists, and such reflexively suspect groups as the American Civil Liberties Union (ACLU), socialists, and labor organizations—as well as such examples of public rectitude as the Secretaries of the Interior and Treasury, the Boy Scouts, and the Camp Fire Girls.[xxviii] Just five days before Chaplinsky’s arrest, the U.S. Attorney General and future Supreme Court Justice Robert Jackson warned his colleagues in the Justice Department of the danger that this intolerant nationalist “hysteria” posed to civil liberties. He recognized that an impulse that cast anyone “unpopular with the predominant group” as a subversive possessed the country, and that Americans would soon “cry for the scalps of individuals or groups because they do not like their views.”[xxix] Echoing Jackson’s assessment three months later, the New York Times detailed a national “wave of intolerance,” led by “self-styled patriots” and characterized by “local enactments and orders, mob violence and hasty formation of citizens’ committees dedicated to stamping out ‘subversive activities.’”[xxx] Dissent had become synonymous with sedition.

In this atmosphere, the Jehovah’s Witnesses were an obvious target. As Life succinctly explained: “Abhorring the authority and symbols of both state and church, Witnesses are accused of every form of treason.”[xxxi] Particularly galling was the Witnesses’ refusal to salute the American flag, which they perceived to be worshipping a false god, forbidden by their understanding of Biblical teaching.[xxxii] Adding to their resistance was the mandated form of the flag salute at the time, a stiff arm extended at eye level, which was nearly identical to the Nazi salute. The Nazi state was then imprisoning and executing German members of the sect for their refusal to swear allegiance to Hitler and serve in the military.[xxxiii] The ACLU documented American persecution of Jehovah’s Witnesses during 1940, citing more than 335 instances of mob violence ranging over 44 states, victimizing 1,488 men, women, and children.[xxxiv] Members of the American Legion, a group that had embraced a belligerently patriotic, anti-subversive stance, dubbed “Americanism,”[xxxv] orchestrated and led nearly half of the attacks, which were made up of as many as 2,000 rioters.[xxxvi] From Maine to Mississippi to Arizona to Wyoming, Witnesses were cursed, threatened with guns, beaten with fists and revolvers, tarred and feathered, kidnapped, and, in one case, castrated. Their property was damaged, destroyed, and stolen. The state of New Hampshire was particularly repressive, removing the children of Jehovah’s Witnesses from their homes and sending them to reformatories. The police, who often overlooked these mob attacks or even supervised them, jailed Witnesses without charges, administered beatings, refused to arrest identified assailants, and, in one instance, forced Witnesses to drink castor oil and then marched them through the streets.[xxxvii]

Mob violence in the name of patriotism and political conformity was not a novel feature of American life. In fact, since the First World War, the phenomenon of grass-roots popular repression had haunted American intellectuals, as well as civil libertarians, lawyers, and jurists—the Supreme Court Justices among them. What retrospectively most troubled liberal opinion about the breach of civil liberties during the First World War and the “Red Scare” in the war’s aftermath were not the draconian federal laws and enforcement actions that had clamped down on political dissent, but the hysterical, often violent cultural and political repression imposed by local groups.[xxxviii] This repression emanated from mobs and ad hoc citizens’ groups, from the newly formed American Legion, and from state and local police, prosecutors, judges, and juries that reflected and responded to popular passions.[xxxix] “Not only were radical and pacifist tendencies . . . thoroughly suppressed,” historian Henry May explained, “but the lukewarm, the reticent, or the unpolitical were often hounded and pilloried.”[xl] Walter Lippmann, the esteemed public intellectual and close friend of Supreme Court Justice Felix Frankfurter, outlined the liberal perspective: the defining political problem confronting the country was to enable the people “to govern themselves without being driven by . . . their own passing hysterias into disaster and the suicide of democracy.”[xli] According to this perspective, a persistent intolerant pathology menaced the freedom of speech, political and intellectual dissent, and minority rights—the hallmarks and foundations of democracy, according to this perspective.

To those who shared Lippmann’s point of view, this pathology found expression in the 1920s in the mass appeal and electoral successes of the revived Ku Klux Klan and in the sway of such flag-waving groups as the American Legion. Through its network of local “Posts,” a vital feature of white middle- and lower-middle-class community life throughout the country, the Legion exercised a coercive conformity and imposed what the Nation magazine characterized as a “hysterical super-patriotism”: 

The Legion has established a censorship of public meetings and by actual or threatened violence suppresses freedom of speech; it is attempting to dictate the instruction in our public schools . . . ; although nominally non-political it has sponsored a host of bigoted and repressive laws and policies.[xlii]

Identifying America’s internal enemies as socialists and organized labor, Alvin Owsley, the National Commander of the Legion, made plain in an interview with the Scripps-Howard Press in 1922 that the Legion would be ready to take over the government “to protect our country’s institutions and ideals as the Fascisti dealt with the destructionists who menaced Italy!” Asserting that “the Fascisti are to Italy what the American Legion are to the United States,” Owsley explained that “the Legion is not in politics . . . But there is plenty of politics in the Legion—potential power, I mean.”[xliii] Although undeniably popular, the Legion, to many observers, was nevertheless inimical to American democracy.

By the mid-1930s, intellectuals and jurists perceived that this reactionary repression entailed an even darker menace. Their apprehension of the growing threat of Nazi Germany, together with their understanding of the methods and circumstances that permitted the rise of Nazism, suggested that America’s own intolerant pathology—which the left-wing editor Max Lerner called “regional fascism”[xliv]—could be mobilized to threaten democratic government. A 4,700-word report by James Wechsler in the Nation in 1939 outlined the relationship that liberal opinion perceived between such outbreaks of home-grown intolerance and a wider threat to the democratic order. Wechsler detailed the escalating vituperative rhetoric, mob demonstrations, and street violence—often with the tacit approval of policemen on the beat—directed against Jews in New York City. He then demonstrated how the perpetrators included the usual suspects—“some professional anti-Semites,” as well the Christian Front, the pro-Nazi German American Bund, and the Christian Labor Front (an organization of Irish-Catholic transport workers)—but largely consisted of “an assortment of ‘patriotic’ groups” that included the Protestant War Veterans, the American Nationalists, and the Crusaders for Americanism. Although Wechsler noted that “at the moment” the threat from this phenomenon was “more potential than actual,” he concluded that it “has visible national significance. The city has become a laboratory for carefully developed fascist experimentation . . .”[xlv]

In a widely publicized speech on January 7, 1940, U.S. Attorney General Frank Murphy, ten days before joining the Supreme Court, laid bare just what he saw as the national significance of the phenomenon that Wechsler had exposed. Murphy explicated the largely familiar tactics used by home-grown intolerant groups: “They . . . represent themselves . . . as defenders of God, America and the Constitution . . . they stir up riots in the city streets, they intimidate peaceful citizens, they invade meetings.” By such means, Murphy asserted, democratic processes would be undermined, and domestic conflict would be fomented, with ruinous consequences for constitutional government.[xlvi] Anxious to sever such a chain of events, Frankfurter, in a letter to his friend Lerner, identified the paramount need “to inoculate our people against fascist-mindedness.”[xlvii]

Because of such foreboding, many intellectuals who had formerly been committed to civil liberties readily, almost eagerly, jettisoned that commitment. Echoing Wechsler and Murphy, they pointed to the growing political muscle of intolerant groups, and to the mass appeal of the anti-Semitic speakers Gerald L. K. Smith and Father Charles Coughlin—who, the liberal columnist Dorothy Thompson wrote, “blend[ed] the familiar pattern of racial antipathy, anti-tradeunionism, and vague populism”[xlviii]—as evidence of a potential authoritarian threat to democracy. To counter that threat, Lerner, who was also a friend of Supreme Court Justice William O. Douglas, advocated a response that he referred to as “Militant Democracy,”[xlix] a posture that was itself distinctly illiberal. Decrying what he saw as rampant “anti-labor, anti-democratic and anti-Semitic lies,” Lerner embraced such measures as a federal “Truth in Opinion” board that would police and investigate the press, and political organizations and their publications, and “ban” opinions that it deemed “poisonous or spurious.”[l] To those who argued that such measures were antithetical to democracy, the progressive journalist Lewis Mumford replied by disparaging the “crazy ethical absolutism” of such groups as the ACLU. He insisted that “if democracy is to preserve its very existence, the majority must not scruple to use any necessary amount of coercion upon minority groups.” He charged civil libertarianism with facilitating the fascist tendencies abroad in the land.[li]

This indictment of American civil liberties extended to the intellectual framework of the Constitutional protections and jurisprudence on which they were based. “Legal Realism” had dominated legal thinking and scholarship in the 1920s and early 1930s. Centered at the law schools of Yale and the University of Chicago, embraced by Justices Douglas and Harlan Fiske Stone, Legal Realism shunned the notion that the law should or could seek to apprehend universal moral principles and abstractions such as “justice.”[lii] Rooted in the ideas of Oliver Wendell Holmes, Jr., and shaped by the positivist approach in the social sciences, the realists insisted on a value-free, relativist approach to the law.[liii] Although Legal Realism’s adherents were mostly liberals and New Dealers, by the late 1930s their astringent intellectual perspective troubled those who believed that the law should be a bulwark of democracy, which was itself a bulwark against Nazism. “The realists had raised, unintentionally, fundamental questions about the possibility and validity of democratic government,” the historian Edward A. Purcell explains.[liv] If all law—and all values—were relative, on what basis could Nazism be deplored and democracy defended? 

The objections that applied to relativism also applied to the defining idea, formulated by Holmes, that underpinned and animated First Amendment jurisprudence: “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.”[lv] This laissez-faire approach dictated that the courts exercise strict neutrality in their treatment of viewpoints and ideas. As Holmes had asserted in arguing the unconstitutionality of banning Communist pamphlets advocating an anarchist revolution: “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”[lvi] This scrupulously relativist judicial stance could be regarded as amoral—a posture that Holmes, himself, had mischievously embraced: “If my fellow citizens want to go to hell,” he insisted, “I will help them. It’s my job.”[lvii] But to some critics of America’s response to what they saw as the potential internal totalitarian threat, Holmes’s robust civil libertarianism amounted not just to amorality but to nihilism. 

In the face of that threat, the survival of America’s democracy demanded nothing less than that the country forsake its devotion to “democratic fundamentalism” in favor of “authoritarian democracy”[lviii]—so argued Karl Loewenstein, a German Jewish émigré law professor, in a series of urgent articles in the Columbia Law Review and the American Political Science Review in 1937 and 1938.[lix] His articles, written from the context of the Nazi seizure of power in Germany and the threat that other far-right subversive groups were posing to Western European governments, galvanized both intellectuals and the legal community in America.[lx] Loewenstein—who corresponded regularly with Frankfurter, Stone, and Justice Louis Brandeis,[lxi] and from whom Lerner had appropriated the term and idea “Militant Democracy”—demonstrated that extremists had prevailed by “invoking free speech . . . for intrinsically subversive aims.” He defined the common goal of the extremist groups as the “legal conquest of the democratic state.” He pointed to “the native brand of patriotic terrorism” and to “radical movements by the ‘right’ which are directed against the existing form of popular government”[lxii] as the closest and most menacing American analogy to those groups. Arguing that constitutional democracy had essentially to become authoritarian itself to protect itself from such subversion, he endorsed an array of illiberal measures that European legislatures had enacted to counter the extremist threat—including severe limitations on assembly, speech, and the press, banning hate speech, mandatory reporting of political activity deemed suspicious, the abrogation of judicial review, and the formation of political police forces with virtually unlimited powers of surveillance and suppression.[lxiii]

Committed to the civil libertarianism enunciated by Holmes, the Justices who would hear the Chaplinsky case would not have let pass Lerner’s progressive prescriptions to combat “regional fascism.” Still less would they have tolerated Loewenstein’s authoritarian legislative agenda to fight “patriotic terrorism”—as now-Justice Jackson’s full-throated wartime assertion would make plain. “The very purpose of a Bill of Rights,” he pronounced, “is to withdraw certain subjects beyond the reach of majorities . . . One’s right . . . to free speech, a free press . . . and assembly . . . may not be submitted to a vote; they depend on the outcome of no election.”[lxiv] Nevertheless, the Justices were no doubt aware of this intensifying current of opinion, much of it generated by their friends and correspondents, that indicted those who adhered to the Court’s dominant approach to free speech as, in Mumford’s phrase, “abettors” of the very forces that would destroy democracy. Moreover, Justices Murphy and Jackson were unusually sensitive to the potential dangers of nativist intolerance. As Attorneys General, each had directed crackdowns—carried out by the Civil Liberties Unit of the Justice Department’s Criminal Division that Murphy had established—on nativist anti-Semitic organizations, anti-labor vigilantes, the anti-subversion activities of the American Legion, and on persecution directed against the Jehovah’s Witnesses. Both had warned of hate-mongers who would exploit what Murphy called “the seeds of barbarism that have been sown among us,” and both had spoken frequently, forcefully, and publicly against home-grown violent intolerance, which they characterized as a persistent threat to democratic institutions.[lxv]

This tension between the Court’s commitment to civil liberties and its foreboding about the pathological reactionary strain in American life helps explain a striking feature of the 1940 decision in Cantwell v. Connecticut. Like Walter Chaplinsky, the Cantwells—father and two sons—ran afoul of the law because their conception of their religious duty as Jehovah’s Witnesses clashed with a local community’s hostility to their sect. In fact, similar clashes between Jehovah’s Witnesses’ religious practices, on the one hand, and localities’ efforts to curb those practices, on the other, resulted in 23 Supreme Court opinions between 1938 and 1946.[lxvi] Firmly demonstrating its commitment to civil liberties, the Court ruled in a unanimous decision that, while the Witnesses’ proselytizing “aroused animosity,” the First Amendment protected their peaceful exercise of their faith.[lxvii] Immediately after this endorsement of civil liberties, however, the Court issued a dictum, at Murphy’s insistence, that was irrelevant to the issues and facts at hand.[lxviii] In a case revolving around the disputed disorderly nature of members of a sect that was enduring violent organized persecution at the hands of patriotic mobs, the Court, conspicuously mindful of intolerant violence at home and abroad, declared:

The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence . . . in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions . . . the States appropriately may punish.[lxix]

Murphy had argued, and his fellow Justices had concurred, that, given the persistent threat from home-grown hate-mongers, the Court should declare that it would (in theory) view as constitutional (unspecified) measures of the state to curb the speech of intolerant groups that (in unspecified ways) served to intimidate their targets. By this sweeping and ambiguous declaration, the Court signaled that it had a license that authorities might use to thwart the tactics that Wechsler had described and that Murphy had warned about in his speech four months before. 

The Supreme Court’s articulation of the fighting-words doctrine in the unanimous Chaplinsky decision two years later similarly demonstrated both the Court’s civil-libertarian inclination and its unease about how hate-mongers could exploit their constitutional liberties. In upholding Chaplinsky’s conviction, the New Hampshire Supreme Court had already severely constricted the overbroad disorderly conduct law that Marshal Bowering had retroactively used to justify Chaplinsky’s arrest, construing it to prohibit as “fighting words” only “face-to-face words plainly likely to cause a breach of the peace by the addressee.”[lxx] When Chaplinsky appealed to the U.S. Supreme Court, that body had only to determine whether the ruling was constitutionally sound, but instead, for the first time, it seized an opportunity to carve out categories of speech not safeguarded by the First Amendment. In its own definition of “fighting words,” the Court accepted wholesale New Hampshire’s construction, which was so narrowed that future Courts would not be convinced that a single other case brought before them could fit into its parameters. But it also added a clause that allowed for the possibility that almost any speech, if the circumstances warranted, might be unprotected. This addition—“words . . . which by their very utterance inflict injury”[lxxi]—was conspicuously ambiguous. It was impossible to pin down what was meant by “injury,” when words were the weapons, because the damage had no physical manifestation. 

In supplying both a precise and an ambiguous reading of what constituted “fighting words,” the Court provided the means for supporting both a libertarian application of the fighting-words doctrine and, if need be, a repressive one. In the years following the Chaplinsky decision, the Court, consistent with its civil-libertarian bent, would use the precise reading to continue to contract the definition of this kind of unprotected speech, thereby curbing states’, municipalities’, and particularly law enforcement’s abuse of the fighting-words doctrine. At the same time, with the ambiguous reading, the Court held in reserve, and would occasionally be tempted to use, the means by which it could uphold the state in shutting down an intolerant group’s attempt to foment hate to subvert democracy.

In three bitterly divided cases in the period 1949–1952, Justices deployed Chaplinsky—and in one instance, the Cantwell dictum—to argue for the suppression of hate-mongering speech. To many observers, the early Cold War years seemed to have reinvigorated the persistent strain of “hysterical super-patriotism” that The Nation had identified decades earlier. According to this view, HUAC was again stoking the “paranoid style” of native intolerance, and an extreme “New American Right” seemed to be ascendant.[lxxii] Familiar extremist figures from the prewar era, including Gerald L.K. Smith, were resurgent. Justices shared these anxieties; in a 1951 letter, for instance, Frankfurter warned Jackson of the reactionary “exploiters of the irrational in the land.”[lxxiii]

These fears informed Frankfurter’s opinion in Beauharnais v. Illinois, which the Court heard that same year. Invoking “the tragic experience of the last three decades,” that opinion sanctioned Illinois’s right to punish venomous speech directed at racial and religious groups. Citing Chaplinsky, Frankfurter argued that such speech could ignite civil strife, which could in turn subvert the democratic order. He also unsheathed the dictum that Murphy had cannily insisted be inserted in the Cantwell opinion. This he applied to justify the restraint of the sort of home-grown intolerant group that Murphy, as Attorney General, had identified as a threat in the late 1930s.[lxxiv] Similarly, in Kunz v. New York (1951), Jackson, probably influenced by his experiences monitoring aggressive patriots as Attorney General and even more profoundly by his work as the chief prosecutor at the Nuremburg trials,[lxxv] argued in his dissent that New York should be able to exercise prior restraint to check anti-Semitic vitriol because of its potential to undermine democracy. “Essential freedoms,” he stated, “are threatened from without and within.” In such a setting, “to blanket hateful and hate-stirring attacks on races and faiths under the protection of freedom of speech,” he maintained, “may be a quixotic tilt at windmills which belittles great principles of liberty.”[lxxvi] In 1949, he had spelled out the danger he perceived in such speech, when, in Terminiello v. Chicago, he explicated a direct link between home-grown hate-mongering and the tactics the Nazis had used to democratically seize power.

To the Christian Science Monitor, the stakes in Terminiello were high: “The Court carries with it the potential safety of . . . the nation in event of a serious drive by some kind of totalitarianism—communism, fascism, or supercharged Americanism—to capture the United States.”[lxxvii] The paper’s anxieties reflect the seriousness with which informed opinion took home-grown threats to American democracy, even in the postwar era. Arthur Terminiello, a “Christian Nationalist,” was arrested in Chicago and charged with “creating unrest” when he delivered an anti-Semitic speech at the invitation of Gerald L. K. Smith. [lxxviii] Although the Court was deeply divided, it narrowly confirmed its civil-libertarian tendency in a five-to-four decision. Expressing the Court’s opinion, Justice Douglas limited the fighting-words doctrine and argued that Chaplinsky did not apply. Speech that provoked, even speech that stirred anger, did not qualify as fighting words. Douglas explained that the Constitution in fact safeguarded most especially speech that produced an angry response: “A function of free speech . . . is to invite dispute. It may best serve its high purpose when it induces a condition of unrest . . . or even stirs people to anger . . . as it presses for acceptance of an idea.” The willingness to tolerate, even to encourage, ideas deemed offensive set democracy apart from totalitarianism.[lxxix]

In what would become a common minority reaction to hate-speech cases on the Court, Frankfurter responded emotionally to the facts. “To say that a state cannot say that this kind of speech cannot be made—well, that is the limit,” he declared after hearing oral arguments.[lxxx] Jackson pointed out that Terminiello “hurled” racial epithets, as if they were weapons capable of causing injury, “at an already inflamed mob of his adversaries.” Such “violent and noisy shows of strength,” Jackson argued, were the tools the Nazis had used to “paralyze . . . democratic authority” in the fight for “the conquest of the streets” that had, as Loewenstein had elucidated, allowed National Socialism to subvert democracy in Germany. Thus, he argued for applying Chaplinsky to uphold Terminiello’s conviction, rather than let a “dogma of absolute freedom” undermine the state. Appealing to common sense, he urged the Court to “temper its doctrinaire logic with a little practical wisdom,” so that it did not “convert the constitutional Bill of Rights into a suicide pact.”[lxxxi] From Jackson’s point of view, an unwavering adherence to the concept of civil liberties failed to consider social and historical forces.

For the next 60 years, Jackson’s and Douglas’s conflicting opinions would exemplify the Court’s—and society’s—conflicting approach to free speech, generally, and the fighting-words doctrine, specifically. Douglas’s view, embracing Holmes’s laissez-faire approach, would be by far the dominant strain. The Chaplinsky decision was the first and last to define categories of expression that are beyond First Amendment protection, and the Court would almost immediately and thenceforth steadily limit and contain the doctrine that it had created. Indeed, just a year after Chaplinsky, the Justices found that the very word that had sustained the verdict against Chaplinsky—“fascist”—was merely “loose language” and “part of the conventional give-and-take in our . . . political controversies.”[lxxxii] Consistent with this approach, the Court would continue to narrow what could be considered “fighting words,” following the reasoning articulated by Justice John Marshall Harlan, who argued that “we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed,” he continued, “governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”[lxxxiii] As the Court hugely contracted what constituted fighting words, the concept of protected political expression expanded concomitantly. In a flurry of decisions at the height of the Vietnam and Black Power protest movements, the Court found that speech could be valuable as much for the emotion it conveyed as for the reasoning it elucidated.[lxxxiv] The Court would also erode the efforts of the police to use a “fighting words” charge to deter or punish those who, like Walter Chaplinsky, criticized police conduct or whom law enforcement found otherwise objectionable. As Justice Blackman admonished the appellee in 1987, “the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”[lxxxv] The upshot of this steady constriction of the fighting-words doctrine in the years following Chaplinsky is that by the early 1970s, at the latest, Walter Chaplinsky’s verdict would surely have been reversed by the Court; the fighting-words doctrine would have dictated the overturning of the very case that engendered it.

But a version of Jackson’s point of view has persisted. In divided opinions, substantial minorities on the Court have urged that the doctrine be applied in cases involving forms of hate-mongering.[lxxxvi] In all of these cases, the minority opinions have cited the “inflict injury” clause of Chaplinsky. None of these dissents have overcome the Court’s uncompromising logic—cited in the Seventh Circuit’s ruling, which the Court let stand, permitting the Nazi Party of America to march in Skokie, Illinois—that “under the First Amendment there is no such thing as a false idea.”[lxxxvii] Still, the Court has not overturned Chaplinsky and has at every opportunity affirmed the vitality of the fighting-words doctrine. The explanation may lie in Cantwell. If the Court indeed included Chaplinsky’s “inflict injury” clause for the same reason it added the dictum in Cantwell, it was holding a doctrine in reserve, because the danger it discerned from mass intolerant forces seemed compelling. There may well have been significant continuity between, on the one hand, the menace that preoccupied American intellectuals in the interwar years and, on the other, the American Nazi Party demonstrating in 1978, misfits burning crosses in 1992 and 2003, and homophobic protesters hurling virulent slogans in 2011 (to mention four instances in which the Court took up the fighting-words question.)[lxxxviii] But the later, seemingly isolated manifestations of paranoia and intolerance, did not represent the same sustained, pervasive threat that mass reactionary repression seemed to pose in the 1930s and early 1940s. So the fighting-words doctrine is moribund, and the Cantwell dictum has been interred.[lxxxix] 

At bottom, though, the Court’s outlook is pessimistic and mistrustful, given that its ultimate purpose, as Jackson declared, “is to withdraw certain subjects beyond the reach of majorities.” Put another way, the Court’s role is to be at the ready to save the United States from its citizens. Such a viewpoint clearly informed the offhand confession of the esteemed constitutional scholar Bruce Ackerman: “I myself think it would be a good idea to entrench the Bill of Rights against subsequent revision by some future American majority caught up in some awful neo-Nazi paroxysm.”[xc] The expansive conception of the fighting-words doctrine embodied in the “inflict injury” clause, born in response to the peculiar anxieties of its time, cannot be reconciled to the broad direction that First Amendment jurisprudence has taken for the past one hundred years. But perhaps the Court recognizes in that doctrine a weapon to be wielded in very different times against a tenacious tendency grown newly strong. ++

See endnotes and bibliography to this article here.

[i] State v. Chaplinsky, 18 A.2d 754, 91 N.H. 310, in Free Law Project, CourtListener, https://www.courtlistener.com/opinion/3576028/state-v-chaplinsky/ (accessed May 3, 2019).

[ii] Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), Google Scholar, https://scholar.google.com/scholar_case?case=124249671461500618 (accessed May 3, 2019).

[iii] Edwards, et al. v. South Carolina, 372 U.S. 229 (1963), Google Scholar, https://scholar.google.com/scholar_case?case=527941814843853341 (accessed May 6, 2019).

[iv] Terminiello v. Chicago, 337 U.S. 1 (1949), Google Scholar, https://scholar.google.com/scholar_case?case=2189837708321658845 (accessed May 8, 2019).

[v] Street v. New York, 394 U.S. 576 (1969), https://scholar.google.com/scholar_case?case=6391101560513832626; Cohen v. California, 403 U.S. 15 (1971), in Google Scholar, https://scholar.google.com/scholar_case?case=7398433541275578772 (accessed May 5, 2019).

[vi] Smith v. Collin, 439 US 916, 99 S. Ct. 291, 58 L. Ed. 2d 264 (1978), in FindLaw, https://caselaw.findlaw.com/us-supreme-court/439/916.html (accessed May 15, 2019); Collin v. Smith, 578 F. 2d 1197 (1978), Google Scholar, https://scholar.google.com/scholar_case?case=7369966442251414810 (accessed May 15, 2019).

[vii] City of Houston, Texas v. Hill, 482 U.S. 451 (1987), Google Scholar, https://scholar.google.com/scholar_case?case=3837274703391855779; Buffkins v. City of Omaha, Douglas Cty., 922 F.2d 465 (1990), in Google Scholar, https://scholar.google.com/scholar_case?case=17585701692520011816 (accessed May 11, 2019).

[viii] R.A.V. v City of St.Paul, Minnesota, 505 U.S. 377 (1992), Google Scholar, https://scholar.google.com/scholar_casecase=14621372290934958371 (accessed May 9, 2019); Virginia v. Black, et al, 538 U.S. 343 (2003), in Google Scholar, https://scholar.google.com/scholar_case?case=2729037874515332053 (accessed May 9, 2019).

[ix] Terminiello v. Chicago, Jackson in dissent.

[x] Snyder v. Phelps, 131 S.Ct. 1207 (2011), Alito in dissent, in Google Scholar, https://scholar.google.com/scholar_case?case=2981429692939250360 (accessed May 10, 2019).

[xi] Street v. New York, the liberal and generally pro-free-speech Justices Earl Warren, Hugo Black and Earl Warren in dissent; Texas v. Johnson, 491 U.S. 397 (1989), Justices William Rehnquist, Byron R. White, Sandra Day O’Connor, and John Paul Stevens in dissent, Google Scholar, https://scholar.google.com/scholar_case?case=2084618710761560217 (accessed May 7, 2019).

[xii] Chief Justice Warren Burger’s dissent in Rosenfeld v. New Jersey, US 408 U.S. 901 (1972), CaseLaw, https://caselaw.findlaw.com/us-supreme-court/408/901.html (accessed May 12, 2019).

[xiii] Cohen v. California, Justice Harry Blackmun and the liberal justices Warren and Black, generally free speech champions, in dissent; Rosenfeld v. New Jersey; Brown v. Oklahoma, 408 U.S. 914 (1972), CaseLaw, https://caselaw.findlaw.com/us-supreme-court/408/914.html (accessed May 12, 2019), for the dissent of Justices Warren Burger, Rehnquist, Blackmun, see Rosenfeld v. New Jersey. 

[xiv] Christy E. Lopez, “Disorderly (mis) Conduct: The Problem with Contempt of Cop Arrests,” American Constitution Society for Law and Policy, Issue Brief, June 2010, United States Court for the Ninth Circuit, Cout of Appeals, http://cdn.ca9.uscourts.gov/datastore/library/2015/08/10/Velazquez_ContemptOfCop.pdf (accessed May 11, 2019); Linda Friedlieb, “The Epitome of an Insult: A Constitutional Approach to Designated Fighting Words,” The University of Chicago Law Review, Vol. 72, No. 1, Symposium: Antitrust (Winter, 2005), 391, JSTOR, https://www.jstor.org/stable/4495498 (accessed May 8, 2019).

.[xv] Hess v. Indiana, 414 U.S. 105 (1973), Google Scholar, https://scholar.google.com/scholar_case?case=4042159652386241321 (accessed May 14, 2019); Brown v. Oklahoma; Cohen v California.

[xvi] Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), Google Scholar, https://scholar.google.com/scholar_case?case=15009844350298299825 (accessed May 6, 2019).

[xvii] City of Houston, Texas v. Hill.

[xviii] Younger v. Harris, 401 U.S. 37 (1971), Justice William O. Douglas’s dissent, Google Scholar, https://scholar.google.com/scholar_case?case=2453423928277325927 (accessed May 6, 2019).

[xix] Historical Society, Rochester, New Hampshire, “Parson Main,” https://rochesterhistoricalnh.org/2012/10/01/124/ (accessed May 14, 2019).

[xx] Trial transcript, State v. Walter Chaplinsky, September 16, 1940, New Hampshire Superior Court, Strafford County Superior Court, September Term, 1940, docket number 2119, 29-30. The printed transcript was submitted with the appellant’s brief to the New Hampshire Supreme Court in State v. Chaplinsky, 18 A.2d 754 (NH 1941), docket number 3226, the New Hampshire Law Library, Supreme Court Building, Concord, NH. Page numbers refer to the printed transcript. Both the New Hampshire and United States Supreme Courts held irrelevant the provocation Chaplinsky endured (“Chaplinsky could no more defend unlawful speech on the ground of provocation than could one of the street-crowd have defended a charge of calling Chaplinsky names on the ground that the name-caller had been incensed by Chaplinsky's teachings,” the New Hampshire Supreme Court averred.) Both Courts therefore accepted as true Chaplinsky’s account of his assaults in his brief. In State v. Walter Chaplinsky at the Strafford County Superior Court, Chaplinsky‘s account of events was confirmed or not disputed by witnesses, except on two points: Bowering asserted that he did not call Chaplinsky a “bastard,” and that Chaplinsky had called him “a Godamn Fascist.” Given that Chaplinsky‘s assault was a result of his zealous adherence to his religion, it seems unlikely that Chaplinsky would have cursed God. 

[xxi] Chaplinsky trial transcript, 25, 28-31.

[xxii] Ibid, 26 and see also Arrest Warrant, April 6, 1940, Strafford County Superior Court, William A. Grimes Justice and Administration Building, Dover, NH, docket number 2119.

[xxiii] Docket, Rochester Hew Hampshire District Court, January-December 1940, William A. Grimes Justice and Administration Building, Dover, NH.

[xxiv] State v. Chaplinsky.

[xxv] Watch Tower Bible and Tract Society, The Finished Mystery (New York: Watch Tower Bible and Tract Society, 1917), 247, as quoted in Zoe Knox, Jehovah’s “Witnesses as Un-Americans? Scriptural Injunctions, Civil Liberties, and Patriotism,” Journal of American Studies, Vol 47 (2013) 4, 1083, JSTOR, www.jstor.org/stable/24485876 (accessed May 11, 2019).

[xxvi] Francis McDonenell, Insidious Foes: The Axis Fifth Column and the American Home Front (New York: Oxford University Press, 1995), EBook, https://ebookcentral-proquest-com.exeter.idm.oclc.org/lib/phillipsexeter-ebooks/detail.action?docID=241535. Owing to the Nazi-Soviet Non-Aggression Pact, American progressives and conservatives shared a belligerent anxiety about the subversive danger. The former focused on the threat posed by supposed German agents and by Nazi sympathizers and far-right anti-Semites, such as the Silver Shirts and the followers of Gerald L.K. Smith. The latter concentrated on supposed Communists and their supporters, a group broadly defined to include pacifists and many labor groups, such as the Trotskyite Socialist Workers Party. Moreover, because most isolationists were no less anxious that the U.S. bolster its military strength in a dangerous and uncertain world than were interventionists (although the former wanted to build a “Fortress America,” while the latter‘s military designs were more outwardly oriented), both camps regarded with hostility any groups, such as striking labor unions, that were seen as disruptive of efforts, well underway in 1940, to buttress U.S. military preparedness. See The Nation, “Our Enemies Within,” June 22, 1940, http://web.b.ebscohost.com.exeter.idm.oclc.org/ehost/pdfviewer/pdfviewer?vid=30&sid=5133a0f6-afe3-4676-a220-bbb692d566c4%40 (accessed May 20, 2019).

[xxvii] Vincent Blasi, “The Pathological Perspective and the First Amendment,” Columbia Law Review, Vol 85, No. 3 (April 1985), 449-514, JSTOR, https://www.jstor.org/stable/1122510 (accessed May 14, 1985).

[xxviii] Geoffrey Stone, Perilous Times: Free Speech in Wartime, (New York: W.W. Norton, 2004), 244-255.

[xxix] Robert H. Jackson, “The Federal Prosecutor: An Address Delivered at the Second Annual Conference of United States Attorneys,” April 1, 1940, US Department of Justice, https://www.justice.gov/sites/default/files/ag/legacy/2011/09/16/04-01-1940.pdf (accessed May 11, 2019).

[xxx] New York Times, “Liberties Union Assails U.S. Course,” July 15, 1940, ProQuest Hisitorical Newspapers, https://search-proquest-com.exeter.idm.oclc.org/docview/105253524/E5E01946023E4F95PQ/1? (accessed May 20, 2019).

[xxxi] Life, “Jehovah’s Witnesses, Who Refuse to Salute the U.S. Flag, Hold Their National Convention,” August 12, 1940, https://books.google.com/books?id=00UEAAAAMBAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false (accessed May 14, 2019).

[xxxii] Hollis W. Barber, ”Religious Liberty v Police Power: Jehovah’s Witness,” The American Political Science Association, Vol 41, No 2 (April 1947), 227. www.jstor.org/stable/1950708, (Accessed: 11-05-2019).

[xxxiii] David R. Manwaring, Render Unto Ceasar: The Flag Salute Controversy (Chicago: University of Chicago Press, 1962), 123.

On the mandated posture, see U.S. Department of Veteran Affairs, “The Pledge of Allegiance,” https://web.archive.org/web/20070520143203/http://www1.va.gov/opa/feature/celebrate/pledge.asp (accessed May 17, 2019). Jehovah’s Witnesses’ resistance to the Nazi state resistance resulted in the Witnesses’ mass imprisonment in concentration camps and the death or execution of some 950 church members, see Richard J. Evans, The Third Reich in Power (New York: Penguin Press, 2005), 255.

[xxxiv] American Civil Liberties Union, The Persecution of Jehovah’s Witnesses (New York City, 1941), 3, The Debs Collection, Indiana State University Library, http://debs.indstate.edu/a505p4_1941.pdf (accessed May 11, 2019).

[xxxv] Alec Campbell, “The Sociopolitical Origins of the American Legion,” Theory and Society, Vol. 39, No. 1 (January 2010), 1-24, JSTOR, https://www.jstor.org/stable/40587556 (accessed May 9, 2019).

[xxxvi] David Thomas Smith documents the extent of the American Legion’s role in this coercive conformity in Essays on the Persecution of Religious Minorities, Chapter 4, “Violent Civil Society: The American Legion, the State, and the Persecution of Jehovah’s Witnesses,” Ph.D. dissertation, Department of Political Science, University of Michigan, 2011, https://deepblue.lib.umich.edu/bitstream/handle/2027.42/84555/davidsth_1.pdf?sequence=1, (accessed May 14, 2019).

[xxxvii] Time, “Witnesses in Trouble,” June 24, 1940, http://web.b.ebscohost.com.exeter.idm.oclc.org/ehost/pdfviewer/pdfviewer?vid=13&sid=87e72cc0-975a-4e9f-81c9-49c822545021%40sessionmgr101 (accessed May 12, 2019); American Civil Liberties Union, 6-23; New York Times, “Beaten on Refusal to Salute the Flag: 61 of Jehovah’s Witnesses Attacked in Illinois Town and Taken to Jail,” June 7, 1940, ProQuest Historical Newspapers, https://search-proquest-com.exeter.idm.oclc.org/docview/105201808/7AEAEDD6A6DE4D5BPQ (accessed May 12, 2019); Chuck E. Smith, “Review of Judging Jehovah’s Witnesses,” Journal of Law and Religion, Vol. 16, No. 2 (2001), 548; New York Times, ”Maine Mob Burns Jehovah Sect Home,” June 10, 1940,” ProQuest Historical Newspapers, https://search-proquest-com.exeter.idm.oclc.org/docview/105360956/4A7474F925684768PQ/ (accessed May 12, 2019); Time, “Witnesses in Trouble.”

[xxxviii] National Civil Liberties Bureau, War-Time Prosecutions and Mob Violence (New York: National Civil Liberties Bureau, March, 1919), 5-13, Hathi Trust, https://babel.hathitrust.org/cgi/pt?id=uiug.30112039356925 (accessed May 16, 2019); Everett Dean Martin for the National Civil Liberties Bureau, The Mob Mind vs. Civil Liberty (New York: American Civil Liberties Bureau, 1920), the Debs Collection, Indiana State University, http://debs.indstate.edu/m379m6_1920.pdf (accessed May 16, 2019); “John Lord O’Brian, “Uncle Sam’s Spy Policies,” Forum, Vol. 61, (April 1919), 414-415 [407-416], Unz Review, http://www.unz.com/print/Forum-1919apr-00407/ (accessed May 18, 2019), John W. Caughey, Their Majesties The Mob (Chicago: University of Chicago Press, 1960), 110-132.

[xxxix] Christopher Cappozolla, “The Only Badge Needed Is Your Patriotic Fervor: Vigilance, Coercion, and the Law in World War I America,” The Journal of American History, Vol. 88, No. 4 (Mar., 2002), 1354-1382, JSTOR, https://www.jstor.org/stable/2700601 (accessed May 10, 2019); on the prominent role the American Legion played in this coercive violence, see 1379-82.

[xl] Henry May, The End of American Innocence: 192-1917 (New York: Columbia University Press, 1959), 387.

[xli] Walter Lippmann, “Constitutional Checks and Balances,” Los Angeles Times, April 27, 1937, ProQuest Historical Newspapers, https://search-proquest-com.exeter.idm.oclc.org/docview/164702806/753354AF70764F61PQ/ (accessed May 19, 2019); for Lippmann’s friendship with Frankfurter, see Ronald Steel, Walter Lippmann and the American Century (New York: Little Brown, 1980), 139, 220-23.

[xlii] Arthur Warner, “The Truth About the American Legion,” The Nation, July 6, 1921, ProQuest The Nation Archive, http://web.b.ebscohost.com.exeter.idm.oclc.org/ehost/pdfviewer/pdfviewer?vid=4&sid=fa7be2f6-b396-4ede-b7fe-03d529f673f0%40pdc-v-sessmgr02 (accessed May 20, 2019).

[xliii] George Seldes, Facts and Facsism (New York: In Fact, Inc., 1943), Internet Archive, https://ia800209.us.archive.org/12/items/FactsAndFascism/FactsandFascism.pdf (accessed May 23, 2019).

[xliv] Max Lerner, Ideas Are Weapons (New York: Viking, 1939), 23, Internet Archive, https://ia600804.us.archive.org/24/items/lerner_ideas/lerner_ideas.pdf (accessed May 21, 2019).

[xlv] James Wechsler, “The Coughlin Terror,” The Nation, July 22, 1939, EBSCO American Periodicals, http://web.b.ebscohost.com.exeter.idm.oclc.org/ehost/pdfviewer/pdfviewer?vid=2&sid=557d177c-6c8f-43f9-ad3d-d949d8054965%40pdc-v-sessmgr05 (accessed May 17, 2019).

[xlvi] New York Times, “Mr. Murphy’s Address on Intolerance,” January 8, 1940, ProQuest Historical Newspapers, https://search-proquest.com.exeter.idm.oclc.org/docview/105191922/43686DC69E3A4F49PQ/1 (accessed May 21, 2019). On the perception of a domestic “Fascist” threat in the interwar U.S, see Richard Steigmann-Gall, “Star-Spangled Fascism: American Interwar Political Extremism in Comparative Perspective,” Social History, 42:1, 94-119, DOI: 10.1080/03071022.2016.1256592 (accessed May 20, 2019).

[xlvii] Quoted in David M. Bixby, “The Roosevelt Court, Democratic Ideology, and Minority Rights: Another Look at United States v. Classic,” Yale Law Journal, Vol. 90, Iss. 4 (1981), 767 https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=6649&context=ylj (accessed 5/9/ 2019).

[xlviii] Dorothy Thompson, “On the Record: The Race Against Freedom,” Washington Post, March 13, 1941, ProQuest, https://search-proquest-com.exeter.idm.oclc.org/docview/151390911/CAB4013AE364580PQ (accessed May 20, 2019).

[xlix] Max Lerner, It’s Later Than You Think: The Need For a Militant Democracy (New York: Viking, 1938), Internet Archive (although first published in 1938, the Internet Archive holds the 1943 edition), https://archive.org/details/in.ernet.dli.2015.74569/page/n7 (accessed May 19, 2019). See title page.

[l] Max Lerner, Ideas Are Weapons (New York: Viking, 1939), 22-24, Internet Archive, https://ia600804.us.archive.org/24/items/lerner_ideas/lerner_ideas.pdf (accessed May 11, 2019); reprinted from Max Lerner, “Propaganda‘s Golden Age, The Nation, (Nov 11, 1939), 522-524, EBSO American Periodicals, http://web.b.ebscohost.com.exeter.idm.oclc.org/ehost/pdfviewer/pdfviewer?vid=4&sid=969a5960-d335-46b3-97c6-6c4be90351a4%40sessionmgr103 (accessed May 22, 2019).

[li] Lewis Mumford, Faith for Living (New York: Harcourt, Brace, 1940), 81, Internet Archive, https://archive.org/details/in.ernet.dli.2015.190139/page/n81 (accessed May 17, 2019). Internet Archive holds the UK edition, published in 1941; for the details of the US publication, see Kirkus Reviews, https://www.kirkusreviews.com/book-reviews/lewis-mumford-11/faith-for-living/ (accessed May 17, 2019)

[lii] Edward A. Purcell, Jr., “American Jurisprudence Between the Wars: Legal Realism and the Crisis of Democratic Theory,” The American Historical Review, Vol. 75, No. 2 (Dec., 1969), pp. 424-446, JSTOR, https://www.jstor.org/stable/1849692; (accessed May 18, 2019); for Realists on the Court, see, Kevin MacKey, ”The Triumph of Legal Realism,” Michigan State University College of Law, January 1, 2019, Digital Commons, https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1146&context=king (accessed May 18, 2019) and George Rutherglen, ”International Shoe and the Legacy of Legal Realism,“ The Supreme Court Review, Vol. 2001 (2001), pp. 347-374, JSTOR, https://www.jstor.org/stable/3109692 (accessed May 19,, 2019).

[liii] Purcell, ”American Jurisprudence Between the Wars,” 424.

[liv] Edward A. Purcell, Jr., The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington: University of Kentucky Press, 1973), 158, Internet Archive, https://archive.org/details/crisisofdemocrat00edwa/page/158 (accessed May 18, 2019); also in Purcell, “American Jurisprudence Between the Wars,” 437.

[lv] Abrams v. United States, 250 U.S. 616 (1919), Google Scholar, https://scholar.google.com/scholar_case?case=14321466231676186426&q (accessed May 23, 2019).

[lvi] Gitlow v. New York, 268 U.S. 652 (1925), Holmes in dissent, Google Scholar, https://scholar.google.com/scholar_case?case=5505973138575755803&q=gitlow+v+new+york&hl=en&as_sdt=2006 (accessed May 11, 2019).

[lvii] Holmes to Harold Laski, March 4, 1920. Holmes-Laski Letters, ed. Mark DeWolfe Howe, Vol. 1, 249 (Cambridge: Harvard University Press, 1953), cited in Bartleby.com, https://www.bartleby.com/73/327.html.

[lviii] Karl Loewenstein, “Militant Democracy and Fundamental Rights, II,” The American Political Science Review, Vol. 31, No. 4 (Aug. 1937), 657-58, JSTOR, https://www.jstor.org/stable/1948103 (accessed May 18, 2019).

[lix] Ibid., and Karl Loewenstein, “Democracy and Fundamental Rights, I,” The American Political Science Review, Vol. 31, No. 4 (Aug., 1937), 638-658, JSTOR, https://www.jstor.org/stable/1948103 (accessed May 18, 2019); “Legislative Control of Political Extremism in European Democracies I,” Columbia Law Review, Vol. 38, No. 4 (Apr., 1938), 591-622, JSTOR, https://www.jstor.org/stable/1116432 (accessed May 18, 2019); “Legislative Control of Political Extremism in European Democracies II,” Columbia Law Review, Vol. 38, No. 5 (May, 1938), pp. 725-774, JSTOR, https://www.jstor.org/stable/1116737 (accessed May 18, 2019).

[lx] Robert A. Kahn, "Why Do Europeans Ban Hate Speech? A Debate Between Karl Loewenstein and Robert Post," Hofstra Law Review: Vol. 41: Iss. 3 (2013), Scholarly Commons, http://scholarlycommons.law.hofstra.edu/hlr/vol41/iss3/2 (accessed May 19, 2019).

[lxi] Amherst College Archives and Special Collections, Karl Loewenstein Papers, https://www.amherst.edu/system/files/media/0218/LoewensteinFA_2011.pdf.

[lxii] Loewenstein, “Legislative Control of Political Extremism,” 592-93.

[lxiii] Loewenstein, “Legislative Control of Political Extremism, II,” 738-762; “Militant Democracy II,” 644-656.

[lxiv] West Virginia School Board v. Barnette, 319 U.S. 624 (1943). GoogleScholar, https://scholar.google.com/scholar_case?case=8030119134463419441&q (accessed May 16, 2019).

[lxv] New York Times, “Murphy Demands Law Enforcement,“ April 20, 1939, ProQuest, https://search-proquest-com.exeter.idm.oclc.org/docview/102806779/627D9930A5E14201PQ/3 (accessed May 16, 2019); New York Times, “Guard Civil Rights, Murphy Asks Cities,” May 16, 1939, ProQuest, https://search-proquest-com.exeter.idm.oclc.org/docview/103001466/75920574FD204398PQ/1? (accessed May 16, 2019); Robert H. Jackson, “The Federal Prosecutor: An Address Delivered at the Second Annual Conference of United States Attorneys”; Laura Weinrib, “Civil Liberties Enforcement and the New Deal State,” Yale Law School, April 18, 2014, 35-38, https://law.yale.edu/system/files/area/center/isp/documents/laura_weinrib_-_civil_liberties_enforcement_and_the_new_deal_state_-_fesc.pdf (accessed May 21, 2019).

[lxvi] David P. Currie, "The Constitution in the Supreme Court: Civil Rights and Liberties, 1930-1941," Duke Law Journal 800 (1987), 819-827 [800-830], University of Chicago Law School, ChicagoUnbound, https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=6112&context=journal_articles (accessed May 17, 2019).

[lxvii] Cantwell v Connecticut. 310 U.S. 296 (1940), Google Scholar, https://scholar.google.com/scholar_case?case=10099999677896592458& (accessed May 9, 2019)

[lxviii] J. Woodford Howard, Jr, Mr. Justice Murphy: A Political Biography (Princeton: Princeton University Press, 1969), 251, Google Books,https://books.google.com/booksid=2hTWCgAAQBAJ&pg=PA561&lpg=PA561&dq#v=snippet&q=cantwell&f=false (accessed May 23, 2019).

[lxix] Cantwell v. Connecticut

[lxx] State of New Hampshire v Chaplinsky.

[lxxi] Chaplinsky v State of New Hampshire.

[lxxii] Richard Hofstader, The Paranoid Style in American Politics (New York: Knopf, 1965), Internet Archive, https://archive.org/details/TheParanoidStyleInAmericanPolitics (accessed May 14, 2019); Daniel Bell, The Radical Right (New York: Doubleday, 1963), Internet Archive, https://archive.org/details/radicalrightthen010584mbp/page/n7 (accessed May 21, 2019); David H. Bennett, The Party of Fear: From Nativist Movements to the New Right in American History (Chapel Hill: University of North Carolina Press, 1988), 286-92.

[lxxiii] Howard Ball and Phillip J. Cooper, Of Power and Right: Hugo Black, William O. Douglas, and America’s Constitutional Revolution (New York: Oxford University Press, 1992), 145-146.

[lxxiv] Beauharnais v. Illinois, 343 U.S. 350 (1952), Google Scholar, https://scholar.google.com/scholar_case?case=11103450757210626375, argued 1951. Although Frankfurter argued that both “fighting words” and the Cantwell dictum applied in this case, Beauharnais was actually charged with “Criminal Group Libel,” so the Court sustained that charge in the case. Loewenstein had identified group libel as a favored tactic of extremist groups in Europe, and therefore one that “militant” democracies had to identify and criminalize. In 1942, in a widely-discussed Columbia Law Review article, about which Frankfurter was no doubt familiar, David Riesman had applied Loewenstein’s methods, specifically Loewenstein’s proposed means to thwart group libel, to combating what he identified as an incipient fascist threat in American democracy. See David Riesman, “Democracy and Defamation: Control of Group Libel,” Columbia Journalism Review, Vol. 42, no 5 (May, 1942), 727-780, JSTOR, https://www.jstor.org/stable/1117690 (accessed May 18, 2019). Most scholars and jurists believe that subsequent Court decisions, especially New York Times v. Sullivan (1964), have rendered the Beauharnais decision no longer “good law.”

[lxxv] Patrick Schmidt, “The Dilemma to a Free People”: Justice Robert Jackson, Walter Bagehot, and the Creation of a Conservative Jurisprudence,” Law and History Review, Vol. 20, No. 3 (Autumn, 2002), 524, JSTOR, www.jstor.org/stable/1556318 (accessed May 20, 2019).

[lxxvi] Kunz v. New York, 340 U.S. 290 (1951), GoogleScholar, https://scholar.google.com/scholar_case?case=9105752986676100521 (accessed May 19, 2019). Emphasis added.

[lxxvii] Christian Science Monitor, “Order and Security May Ride on Ruling,” May 27, 1949, ProQuest, https://search-proquest-com.exeter.idm.oclc.org/docview/508033735/pageviewPDF (accessed May 23, 2019).

[lxxviii] Schmidt, 519-521.

[lxxix] Terminiello v. Chicago.

[lxxx] Schmidt, 523.

[lxxxi] Terminiello v. Chicago.

[lxxxii] Cafeteria Union, Local 302, et al. v. Angelos et al., 320 U.S. 293 (1943), Google Scholar, https://scholar.google.com/scholar_case?case=6005568421109571244&q (accessed May 14, 2019). Perhaps because this case did not involve a fighting words charge, in the secondary literature on the Fighting Words doctrine that I have read I have not found any mention of this astonishing discrepancy.

[lxxxiii] Cohen v. California.

[lxxxiv] Cohen v. California (1971), Brown v. Oklahoma (1972), Rosenfeld v New Jersey (1972), Hess v. Indiana, (1973) Texas v. Johnson (1989).

[lxxxv] City of Houston, Texas v. Hill, Norwell v. City of Cincinnati, 414 U.S. 14 (1973), GoogleScholar https://scholar.google.com/scholar_case?case=10674106125018305233 (accessed May 9, 2019).

[lxxxvi] Smith v. Collin (1978), R.A.V. v. City of St. Paul (1992), Virginia v. Black (2003), Snyder v. Phelps (2011). In his dissent in Smith v. Collin, Justice Blackman, joined by Justice White, argued that the Court should have not declined to examine the Seventh Circuit’s ruling allowing the American Nazi Party to march in Skokie, IL. Blackman stated that the Seventh Circuit’s ruling was “in some tension with Beauharnais”—and thus also with the Cantwell dictum upon which that Beauharnais was based. 

[lxxxvii] Collin v Smith, 578 F.2d 1197 (1978), quoting Gertz v Robert Welch, Google Scholar, https://scholar.google.com/scholar_case?case=7369966442251414810&q (accessed May 8, 2019); Smith v. Collin, 439 US 916 (1978), FindLaw, 439 US 916 (accessed May 8, 2019).

[lxxxviii] Smith v. Collin, R.A.V. v. City of St. Paul, Virginia v. Black.

[lxxxix] Federal court opinions have cited the Cantwell dictum six times. Although Frankfurter made it a central element in his opinion in Beauharnais, the Supreme Court has never cited it again. The last time a Federal court deployed it was in 1978, in Collin v. Smith (the Nazis in Skokie case). GoogleScholar search, May 21, 2019. 

[xc] Bruce A. Ackerman, We The People, Volume 1: Foundations (Cambridge, MA: Harvard University Press, 1993), 16.

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Nicholas Schwarz is a second year student at the University of Chicago, where he is double majoring in Classics and in Fundamentals: Issues and Texts. He wrote this essay while a student at Phillips Exeter Academy, where it won the Negley Prize in American History.

This habit of calling into question the patriotism and loyalty of those who buck consensus is back with full force, only instead of coming from the reactionary right (the likes of Senator McCarthy), such calls are coming from those in the prestige media, academe, and the current White House and State Department—much more liberal players who are merely availing themselves of McCarthyite tactics. 

Fox News Channel’s Tucker Carlson has come in for particular abuse in this area. For questioning the wisdom of America’s involvement in the Ukraine conflict (given a lack of vital national interests to the United States), and for validating Russian concerns about proposed NATO expansion into Ukraine and Georgia (both former Soviet republics), Carlson has been called “America’s Most Watched Kremlin Propagandist” by Slate contributor William Saletan; has been accused of flirting with treason by Laurence Tribe, a Harvard law professor (emeritus) and former judicial advisor to President Barack Obama; and has been charged by those too numerous to count with parroting, echoing, repeating, mouthing, and so on “Putin’s talking points.” So plentiful is talk of Carlson being on Team Kremlin that one could be forgiven for thinking the slur has become something of a talking point itself.

Professor Tribe’s comments, made in a since deleted tweet posted on Monday, February 21, were especially regrettable, coming as they did from a person of his position and training. That tweet read: 

Led by Fox News Channel’s Tucker Carlson, the GOP’s Trump wing appears to be throwing its weight behind Putin. If Putin opts to wage war on our ally, Ukraine, such “aid and comfort” to an “enemy” would appear to become “treason” as defined by Article III of the U.S. Constitution.

One is tempted to joke, à la Mary McCarthy, that every word of that tweet is untrue, including and and the. Russia, whatever our prevailing national opinion on it, is not a declared enemy with whom we are at war even now, post-invasion. Ukraine, whatever our prevailing national sentiments toward it, is not an official ally. Domestic deviation from prevailing national sentiments and opinions—however wrong or absurd many might find that deviation—does not come anywhere near the definition of “aid and comfort” as laid out in Article III of the Constitution. 

David French—former U.S. Army major in the Judge Advocate General’s Corps, Iraq War veteran, Bronze Star recipient, and outspoken critic of the Trump wing of the GOP—had this to say in direct response to Professor Tribe’s tweet: “This is completely false. Constitutional text, history, and precedent say this is false. It’s not even in the same ballpark as the truth.” In his tweet, French linked to a page at the National Constitution Center site, where two of the center’s scholars elucidate the treason clause, Article III:

While the Constitution’s Framers shared the centuries-old view that all citizens owed a duty of loyalty to their home nation, they included the Treason Clause not so much to underscore the seriousness of such a betrayal, but to guard against the historic use of treason prosecutions by repressive governments to silence otherwise legitimate political opposition. Debate surrounding the Clause at the Constitutional Convention thus focused on ways to narrowly define the offense, and to protect against false or flimsy prosecutions.

. . . In other words, the Constitution requires both concrete action and an intent to betray the nation before a citizen can be convicted of treason; expressing traitorous thoughts or intentions alone does not suffice.

Yet just this past Friday, February 25, former New York Senator, former Secretary of State, and former Democratic nominee for the Presidency, Hillary Clinton, was on MSNBC’s Morning Joe parroting Professor Tribe’s flimsy accusations. We need to call out “those people who are giving aid and comfort to Vladimir Putin,” Secretary Clinton thuggishly remonstrated. She criticized those who question the received foreign-policy wisdom, “who are unfortunately being broadcast by Russian media not only inside Russia but in Europe to demonstrate the division within our own country.” (Our diversity is our strength—except, apparently, when it’s not.) “We have to be much more united,” Secretary Clinton admonished us, because our national divisiveness “plays right into the ambitions” of those who would “divide and conquer the west without ever invading us but by setting us against each other.”

Those whom Secretary Clinton excoriated have very different views from hers about America’s role in the world and the motivations behind Russia’s conduct toward Ukraine. Certainly, she should strenuously challenge those views. Instead, however, she attempted to quash debate by pronouncing that her opponents’ views approximate treachery against the nation because, as she reckons, their dissent objectively—an adverb Stalinists were wont to deploy—supports the ambitions of a country she has defined as America’s enemy. This tactic used to be called red-baiting.

Secretary Clinton did bring up a good point, even if she did so unwittingly. Our national divisions have long been exploited by clever and ambitious propagandists from the Soviet Union and then from the Russian Federation. Civil Rights marchers protesting the status quo in the Jim Crow South made for great footage that highlighted American divisions and hypocrisies for Soviet Bloc audiences, all the more so when—with Gandhian sangfroid—the marchers put themselves in circumstances where they were sure to be attacked by the reactionary forces of the status quo. Would that make Martin Luther King a useful idiot or a fifth columnist? (Some on the reactionary right tried to paint him thus. And remember, this all happened during the height of the Cold War, when the great powers were competing globally for potential client states, not least among the newly independent and predominantly brown-skinned nations of the once-colonial Global South.) More recently, Russian propagandists have availed themselves of the words and actions of groups ranging from Occupy Wall Street to Black Lives Matter, words and actions that have brought to light further divisions within America—economic divisions, racial divisions, etc. Are members of groups like these culpable for the uses to which their (domestic) social and political critiques are put by foreign propaganda mills? Are they to stifle such critiques for fear of finding themselves accused, like Tucker Carlson, of flirting with treason?

Treason, of course, involves waging war against your home nation or providing aid and comfort to an enemy of your home nation in time of war. So what about those who explicitly, vociferously protested our involvement in Vietnam? In that case, American military forces were directly engaged with those of a foreign government, that of North Vietnam. The United States alleged that North Vietnam was the aggressor, having violated the border between north and south (established in 1954) by providing men and materiel to the Vietcong, who were taking up arms against an independent South Vietnam. The United States therefore entered into a military alliance with South Vietnam to repel these attacks, in a fashion that included bombing targets in North Vietnam.  

Were kids who took to the streets and campuses to protest the war giving aid and comfort to the enemy? What about their moms who supported them by joining Another Mother for Peace—and such people as the former Miss America Bess Myerson, the celebrated pediatrician Dr. Benjamin Spock, and the actors Debbie Reynolds, Donna Reed, Dick van Dyke, Joanne Woodward, Paul Newman, and Lauren Bacall, all of whom actively supported those moms—were they giving aid and comfort to the enemy? Many Americans at the time thought so. Many who were alive then still do. But those protesters weren’t guilty of anything like treason, and in fact many Americans celebrated them, and still do, for the stand they took and the divisions they pried open. What, however, of Jane Fonda’s visit to a North Vietnamese anti-aircraft battery (a weapon used, of course, to shoot down American pilots, many of whom, at the time of Fonda’s visit, were being held as prisoners of war)? This was an act of commission. Unlike civil-rights and antiwar marchers, Occupy Wall Street and Black Lives Matter protesters, or Tucker Carlson, all of whom might find (or have found) their words and actions put to Russian uses without their intention, Fonda traveled to enemy territory of her own volition and allowed her visit to the gun emplacement to be filmed. The footage shows her—in all her Hollywood fame—seated behind the gun sights and surrounded by applauding North Vietnamese soldiers. She looks as delighted as a birthday girl at Disneyland.

It’s not a good look, which Fonda herself came to realize. It may even have been somewhat comforting to the North Vietnamese, though nowhere near to the degree that it was distressing to Americans. Whatever the case, Jane Fonda was never charged with treason. Many despise her for what she did, just as many despise Tucker Carlson for what he does. But our culture and our society have found ways to coexist with them both, and even to let them thrive. It is by far the better option than dumbing down our concept of treason, the better to set upon each other’s throats. That’s the very divisiveness and national self-destruction that Secretary Clinton, with one breath, claims to fear and, with the other, exacerbates with her loose talk about giving “aid and comfort” to Vladimir Putin.

Some words must be said about these Putin talking points people are supposedly parroting; for Tucker Carlson isn’t alone in finding himself so charged. Several weeks ago, President Joe Biden’s White House Press Secretary, Jen Psaki, accused Republican Senator Josh Hawley, of Missouri, of “digesting Russian misinformation and . . . parroting the talking points of Russian propagandist leaders.” (This came as a result of Hawley’s suggesting that, for strategic reasons, the United States should consider withdrawing its commitment to expanding NATO into Ukraine.) At nearly the same time, State Department spokesperson Ned Price leveled the following remark at an Associated Press reporter (after being rankled by the reporter’s unyielding skepticism regarding a report Price had just made about alleged Russian misinformation): “If you doubt the credibility of the U.S. government . . . and want to find solace in information that the Russians are putting out, that is for you to do.”

The unavoidable takeaway from all this is that parroting isn’t the actual problem in the eyes of officialdom. In fact parroting is preferred, almost insisted on. But you must parrot Us, officialdom asserts. Anything less, and we’ll accuse you of parroting Them. Not only is this incompatible with the principles we presume to stand for at home and abroad (those relating to freedom of speech, an independent and even adversarial press, etc.), but it also betrays an ignorance of the long public debate around foreign policy as it relates to Russia. Working backwards chronologically, here are but a few highlights from that debate. 

In 2016, then President Obama said, “The fact is that Ukraine, which is a non-NATO country, is going to be vulnerable to military domination by Russia no matter what we do.” He added that “we have to be very clear about what our core interests are and what we are willing to go to war for.” One can agree or disagree with these assessments. But at the time they were offered, it probably didn’t occur to those who now find Russian disinformation hidden in every lampshade to claim that President Obama was naught but a Kremlin mouthpiece.

In 2015, John J. Mearsheimer, the R. Wendell Harrison Distinguished Service Professor of Political Science at the University of Chicago, and one of the two or three most distinguished international relations scholars in the United States (and a West Point graduate), gave a lecture titled “The Causes and Consequences of the Ukraine Crisis.”

In that lecture, he cited the 2008 Bucharest Summit (in which NATO pledged to one day incorporate Ukraine and Georgia) as a proximate cause of the 2008 war in Georgia and a contributing cause of Russia’s 2014 annexation of the Crimea and its military support of pro-Russian forces in eastern Ukraine. 

The Bucharest Summit Declaration, from April 3, 2008, reads in part: “NATO welcomes Ukraine’s and Georgia’s Euro-Atlantic aspirations for membership in NATO. We agreed today that these countries will become members of NATO.” Reflecting the Russian foreign-policy consensus, Vladimir Putin has consistently said that he would never allow that to happen, that such an action would be considered a direct threat to Russia. And Professor Mearsheimer doesn’t wonder why, reminding us that the United States has for two hundred years proclaimed the rights of a hegemon within its own hemisphere (via the Monroe Doctrine), that we have spent more than sixty years in a state of pique over the fact that a socialist (and, for a long time, Soviet-allied) Cuba sits just off our southern shore, and that we would never allow, say, Canada or Mexico to enter into a military alliance with Russia or China against us. Ukraine, as both Professor Mearsheimer and President Obama note, is a core interest of Russia’s. It is less obviously of vital national importance to the United States. It was not treasonous for Professor Mearsheimer and President Obama to say so, and it’s not treasonous for Tucker Carlson to do so either.

One is free to agree or disagree with the geopolitical and historical analysis offered by Mearsheimer—analysis largely echoed by such disparate figures as the British historian and sociologist Perry Anderson; the former U.S. Ambassador to the Soviet Union Jack Matlock; the historian and foreign-policy expert Ronald Steel; the editorial director and publisher of The Nation, Katrina vanden Heuvel; her late husband, the historian of Russia Stephen F. Cohen; the British Russia scholar and journalist Anatol Lieven; the former New Republic columnist Robert Wright; the MIT political scientists Barry R. Posen and Stephen Van Evera; the Texas A&M political scientist Christopher Layne; and the Pulitzer Prize-winning former New York Times Moscow Bureau Chief David K. Shipler. But plainly such analysis long predates Tucker Carlson’s supposedly treasonous broadcasts on the Fox News Channel. In fact, such analysis long predates Vladimir Putin’s involvement in world affairs.

In 1959, no less towering a figure in twentieth-century American diplomacy than George F. Kennan joined a debate with former Secretary of State Dean Acheson in the pages of Foreign Affairs magazine, on the subject of potential U.S. military disengagement from western Europe. Kennan was one of the architects of America’s containment policy vis-à-vis the Soviet Union, but as he made clear in Foreign Affairs, such a policy—in his eyes—had been aimed at improving America’s negotiating position, from which containment (and its inherent tensions) might eventually be eased in favor of compromise solutions and a more lasting and stable peace, for both the United States and the Soviet Union, and for the nations of both eastern and western Europe. The policy as he imagined it was never meant to be permanent. “Perhaps the deepest issue at stake in this whole problem of disengagement,” Kennan wrote, “resolves around this point.”

Kennan’s article was written against the backdrop of, among other things, ongoing tensions over West Berlin and the crushed Hungarian uprising of 1956—events that in the eyes of Kennan’s opponents militated against his proposals for disengagement. Kennan made sure to note, however, that it was also written against the backdrop of ongoing U.S. military presence in West Germany, of West Germany’s then recent (1955) admission into NATO, and of the absence of any agreement regarding the diplomatic status of nations that might manage to extricate themselves from the Soviet Bloc. “The sharpness of the challenge which was presented to Soviet interests,” Kennan wrote,

was heightened by the fact that any Soviet withdrawal in the face of the respective pressures would have had the nature of a forced unilateral retreat unattended by any comparable concessions, or indeed by any concessions at all, on the Western side. Not only would a yielding to pressures of this sort have been immediately humiliating, but there was the further danger, against which Moscow had no visible protection, that territories thus released from participation in the Warsaw Pact might end up by joining the Atlantic Alliance [i.e., NATO], thus effecting a major alteration in the world balance of power. [Emphasis added.]

One didn’t have to be sympathetic to Soviet designs to see how unacceptable such a lopsided eventuality would be to the Kremlin. Yet, as Kennan noted, Soviet behavior in response to such proposed lopsidedness was characterized by many as mere Soviet aggression. Nor was it realistic, Kennan continued, to assume that the Soviets would view their own interests and security in precisely the terms the United States conceived of those matters for them. Ergo, the Soviets “will be unlikely to regard as a fit subject of negotiation a mere retraction of their power in favor of the extension to . . . Eastern Europe of the international military, political and economic arrangements now prevailing, under American aegis or encouragement, in the western half of the continent.” 

Replace the word Soviet with the word Russian in the following, and you have a perfectly melancholy comment on the current crisis in Ukraine: “We may be paying, here, a bitter price for our tendency over the whole span of Western-Soviet relations to dismiss all Soviet ideological statements as ‘just propaganda,’ and to discuss with Soviet leaders everything but the main thing.”

Given his perspective and reasoning, it’s no wonder that four decades later Kennan characterized America’s push to expand NATO eastward—a policy, contrary to repeated U.S. pledges made to Russian officials at the end of the Cold War forswearing such a move, that Russia today sees as prompting the current crisis in Ukraine—as “the most fateful error of American policy in the post cold-war era. Such a decision may be expected . . . to impel Russian foreign policy in directions decidedly not to our liking.”

Once again, wise people can disagree—and have disagreed—with such analysis as Kennan’s. One could argue that it is misguided or even dangerous. It is certainly not truth beyond questioning. But neither is it disinformation or misinformation. It is intelligently conceived and articulated information, of the sort that is vital to informed debate and an informed citizenry. And an informed citizenry is never more important than in times of national and even global tension, when prudence and the consideration of complex realities must not give way to Manichaean passions and simple if stirring invocations of “values.” 

As Kennan wrote in Foreign Affairs, “National interest, not sentiment or emotion, forms the normal basis for policy; and nations must not be expected to ignore the most vital of their own interests.” It is a view that has been expressed as well by everyone from President Obama to Charles de Gaulle, who famously remarked, in essence, that no nation has friends, only interests. 

Cold and unsentimental that may be, but it is not a new idea, and again, it has been voiced by people all over the political spectrum, including—yes, more recently—Tucker Carlson. That such an idea is now being recast as treasonous indicates a great and alarming degradation of American discourse, and an even more alarming instinct to stifle debate when debate is most needed. That such degradation and such instinct to chill speech are emanating from high officialdom, the prestige press, and academe bodes ill for free and informed expression in the United States right now. Alas, our history is replete with instances—from the Alien and Sedition Acts through the wholesale destruction of civil liberties during the First World War, from the witch hunts of the early Cold War to President George W. Bush’s press secretary Ari Fleisher’s warning that “people should watch what they say” when questioning the Global War on Terror—of a pathological tendency to suppress dissent and to demand conformity by conflating criticism of national policy with disloyalty or treason. That we presume to embody values that must be defended abroad but that we can’t tolerate at home reveals something fraudulent—willfully blind and potentially dangerous—in our amour propre. 

The 74-page injunction drips with judicial exasperation, even with scorn for the behavior of the defendants (i.e., UF administrators) and their legal counsel in the face of this constitutional challenge. According to Judge Walker, the defendants and their counsel have engaged in “mischief,” and have made claims that are “simply not credible.” Their arguments, being “disingenuous” and “too clever by half,” raise “an issue of candor.” Their positions are “inconsistent,” even “shocking,” and their supposed remedy for the matter under dispute is characterized variously as “simply a red herring,” a “smokescreen,” a “facelift,” a “cosmetic revision.” Exhausted, perhaps, from being driven to such metaphorical excess, Judge Walker states flatly that the remedy is “utterly devoid of meaningful content,” and then he rises to one last figurative flourish: “In sum, Defendants’ side of the scale sits empty.” 

None of this bodes well for the university should it decide to test its odds in court.

At issue is whether the university is using its conflict-of-interest policy to stifle professors’ speech when that speech—particularly expert-witness testimony in cases involving the state of Florida—would potentially displease the members of Florida’s executive branch of government, currently led by Republican Governor Ron DeSantis. (The plaintiffs, who are experts in elections, sought to give testimony in a class-action suit, Florida Rising v. Lee, that claims the state of Florida has abridged the voting rights of its citizens. We offer no opinion on the merits of that suit.) Such stifling would amount to viewpoint-based discrimination in violation of both the First Amendment and the principle of academic freedom. The university insists that it has not engaged in any such stifling, though when recently denying plaintiffs’ requests to undertake expert-witness work, the university itself explained, in one case, that “[o]utside activities that may pose a conflict to the executive branch of the state of Florida create a conflict for the University of Florida” and, in another, that “[a]s UF is a state actor, litigation against the state is adverse to UF’s interests.”

In essence, say UF’s trustees and administration, outside speech by UF professors on matters of public interest must align with the goals and sentiments of Florida’s executive branch, or at any rate must not be at odds with those goals and sentiments. In cases where there’s a presumed threat of the latter, the university arrogates to itself the right to forestall such speech by issuing a denial of request, and if such speech is engaged in without prior approval from UF, that speech will be regarded as a violation of UF policy, leaving the speaker subject to disciplinary measures that could include possible loss of employment.

“Given the above,” says Judge Walker, “it is not unreasonable, moving forward, for Plaintiffs to believe that UF will use its policy to squelch their speech; it is unreasonable for them to believe that it will not.”

The university’s rationale is that since UF is a state institution, UF professors are state employees whose public speech—even speech made beyond the scope of the professors’ official duties—is not subject to First Amendment protection but is instead under the discretion of the university itself, as an employer. It is a rationale that the Supreme Court denied more than fifty years ago in Pickering v. Board of Education (1968), asserting that public employees speaking on matters of public concern, and speaking as citizens (not as employees in an official capacity), do in fact enjoy a First Amendment right to such speech. Yet, remarked an incredulous Judge Walker, “Defendants’ counsel made the dubious assertion that he had no idea that this case implicated the Supreme Court’s test from Pickering and its progeny. For the uninitiated, that is roughly equivalent to an attorney in an abortion case feigning surprise in response to a question about Roe v. Wade and its progeny.”

Furthermore, UF’s rationale runs head first into UF’s own explicit policy regarding outside speech engaged in by UF professors. When filling out a university disclosure form as part of their request to undertake outside expert-witness work, professors are required to acknowledge the following in their disclosure form: “I affirm that the attorney with whom I will be working understands that my engagement in this activity is in my capacity as a private citizen and not as an employee of the University of Florida.” A half a century’s worth of legal precedent couldn’t demolish UF’s defense any better than does that succinct and perfectly worded bit of university boilerplate. 

In December, Mori Hosseini, chairman of the University of Florida board of trustees, waded into the matter with a shameless mix of bullying and toadying. “We saw that some have taken advantage of their positions,” he said, in a veiled reference to the plaintiffs. He then continued:

I am speaking here of faculty members taking second jobs using the university’s state resources for their own personal gain. I am speaking about faculty members who use their position of authority to improperly advocate personal political viewpoints to the exclusion of others . . .

This will not stand. It must stop. And it will stop. If you allow something to happen, that means you condone it. Enough. Let me tell you, our legislators are not going to put up with the wasting of state money and resources, and neither is this board.

UF and its counsel have further accused the plaintiffs of misleading the court about the timing of their expert-witness work relative to the denial notices the plaintiffs ultimately received from UF. In short, some professors undertook expert-witness work before (and without) receiving permission to do so from the university, on the assumption that—as had always been the case in the past—they would receive just such permission. Leaving aside the fact that these chronologies had already been entered into the court record (thus, no deceit), UF, in its own defense, has stressed that its conflict-of-interest policy features “a strong presumption in favor of permitting faculty and staff to testify as expert witnesses in litigation against the state.” But, as Judge Walker notes, that same policy “contains an explicit carveout allowing viewpoint discrimination when Defendants decide an issue is important enough.”

So on the one hand, UF characterizes the plaintiffs as dishonest, self-seeking moonlighters whose work not only amounts to an abuse of taxpayer money and university resources but also presents a clear conflict of interest, and on the other hand insists that of course they and all faculty should assume now and always that they have almost unfettered permission to engage in the type of work just disparaged. Or, as Judge Walker put it, “This Court cannot help noting the sad irony that UF touts its strong ‘presumption’ favoring speech with one breath and with the other condemns Plaintiffs as liars with unclean hands for having the audacity to presume that UF would approve their requests to speak.”

Judge Walker found no indication that Florida’s executive branch was slyly compelling UF administrators to do what those administrators seemed certain was its bidding. What Judge Walker did observe, however, was almost worse. “In an apparent act of vorauseilender Gehorsam,” he noted, “UF has bowed to perceived pressure from Florida’s political leaders and has sanctioned the unconstitutional suppression of ideas out of favor with Florida’s ruling party.” Vorauseilender Gehorsam translates as “pre-emptive subservience” or “anticipatory obedience,” and Judge Walker notes that this exact thing has been underway at the University of Hong Kong of late, where administrators, seemingly of their own volition, are jettisoning academic freedom and the university’s own reputation in a bid to bring the university more in line with the presumed goals and sentiments of Beijing. 

It is an analogy certain to be found distasteful, as it should be, both by UF (the state’s flagship university) and by the Florida executive branch to which UF administrators have demonstrated such fealty. But, Judge Walker says, “consider the costs UF is willing to bear to maintain its power to discriminate based on viewpoint. It is willing to suffer threats to its accreditation, congressional inquiries, unrelenting bad press, an all-but-certain hit to its rankings . . . The only thing UF will not do, it seems, is amend its policy to make clear that it will never consider viewpoint in denying a request to testify.”

The principle of free speech is timeless and viewpoint-neutral, and the First Amendment’s chief concern is that government, above all, should not in any way be a party to constraining, qualifying, or abridging the right to free speech. Yet UF administrators, who should very well know this fundamental aspect of American civics, have suggested that free speech should in fact be subject to constraint or abridgment given the assumed preferences of the party holding temporal power in state government. This is unworthy of a college freshman, let alone administrators at Florida’s flagship university. This matter resides, as Judge Walker noted, “in the First Amendment’s heartland.”

As the litigation in the suit brought by the professors against UF’s trustees and administration continues, Judge Walker (and the plaintiffs) will no doubt be compelled to further educate UF’s administrative leadership in constitutional law and principles, as well as in the values of academe. UF will need reminding that the Supreme Court has long made clear that, to quote Justice Felix Frankfurter’s concurring opinion in Sweezy v. New Hampshire (1957), “a university ceases to be true to its own nature if it becomes the tool of . . . State or any sectional interest.” Therefore, public university professors’ research and their speech communicating that research must be afforded the broadest conceivable protections against abridgment or censorship by the state. Professors, as Justice Hugo Black averred in his concurrence in Wieman v. Updegraff (1952), “must have the freedom of responsible inquiry, by thought and action, into the meaning of social and economic ideas, into the checkered history of social and economic dogma.” Perforce, then, as the Court declared in Keyishian v. Board of Regents (1967): “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment.”

Indeed, although UF’s trustees and administration have stressed that UF should enhance the public welfare, no doubt Judge Walker will have to explain to them that curtailing academic freedom not only abridges the rights of professors but also deprives the public of the benefits of the knowledge and unorthodox ideas that can only emerge in an environment of unfettered inquiry and publication. Furthermore, by denying to the federal courts the testimony of UF professors on possible violations of citizens’ voting rights, the UF administration has deprived the court of its ability to be informed by and to question the very experts who (at least in the judgment of Florida Rising’s plaintiffs) are best qualified to enlighten the court on a matter of paramount public concern. Worse still, by stymieing the professors’ testimony out of solicitude for the perceived interests of the state’s executive branch, the UF administration and trustees have effectively acted as agents (however unbidden) of one branch of government in a manner that vitiates the independence and effectiveness of another branch—the federal judiciary. In their small-minded way and however unintentionally, the UF administration and trustees have thereby contorted democracy by “prohibit[ing] speech and expression upon which courts must depend for the proper exercise of the judicial power” (to quote the Supreme Court’s opinion in Legal Services Corporation v. Velazquez, 2001).

In response to Mori Hosseini’s ardent endorsement of the UF administration’s execrable actions and to Judge Walker’s compelling indictment of UF’s trustees and administrative leadership, we issue this message to Mori Hosseini:

Only by adhering to the principles of academic freedom can the university fulfill its central mission: the pursuit and transmission of knowledge. But because academic freedom contradicts some of our most basic impulses, it is always vulnerable. It depends on those in your position to safeguard it. As Judge Walker’s preliminary injunction elucidates, in your hectoring and pandering manner and in your disregard—indeed your contempt—for the values at the heart of the academic enterprise, you have abysmally failed in your duties. In the face of criticism similar to that which Judge Walker has leveled, University of Florida President Kent Fuchs has sensibly announced his plans to resign. You should follow suit. You profess to be committed to both the principles of academic freedom and to the efforts of the University of Florida to become a great academic institution. In fact, you have perverted the former and besmirched the latter. To combine disparate but apt historical quotations: Have you no sense of decency? You have sat too long for any good you have been doing lately. In the name of God, go.

As a peevish meeting of one last contractual obligation to Decca Records, the Rolling Stones delivered a song called “Cocksucker Blues,” which—as its title suggests—contains thematic content that made the song unreleasable (deliberately so). The squares at Decca, presumably, were not amused.

Far more hip, as the Foundation for Individual Rights in Education (FIRE) points out, are the students at Ferris State University who signed up for classes with history professor Barry Mehler. As he has done repeatedly for years, Mehler observed this semester’s syllabus week with a scripted, tongue-firmly-in-cheek video in which he told students that (among other things) “no limber-dick cocksucker of an administrator is going to tell me how to teach my classes, because I’m a fucking tenured professor.”

Mehler was borrowing dialogue almost verbatim from the foul-mouthed HBO miniseries Deadwood, and since the point of it all was to alert students to the need to cite their sources, he then showed the original Deadwood clip. In short, Mehler was using humor and mock gruffness to make a pedagogical point. He made numerous other pedagogical points in the same video, in equally eccentric, even outlandish fashion (see the space-helmeted Mehler below).

As FIRE points out, it was a fashion that for years had been recognized and commended by both students and administrators at Ferris State. Several years ago, upon observing the performance of the same foul-mouthed, scripted fare, the then dean of the College of Arts, Sciences and Education hugged Mehler and said that she wished she’d had a teacher like him when she was a student. More recently, after observing his classroom style, including his profane syllabus-week skit, faculty peers and colleagues nominated Mehler for a Distinguished Teaching Award. He was named a finalist. Another colleague nominated him for a merit raise, which he received. Students pack his classes. For all his kookiness, Mehler seems—by general and even official consensus—to be an effective, popular teacher.

But when a selectively edited version of his syllabus-week video hit the internet, misinformed online outrage ensued, prompting university administrators to pretend, for the sake of appearances, that they didn’t get the joke, and that they too were troubled and even outraged by Mehler’s supposed violation of the university’s square-sounding Employee and Student Dignity policy. Mehler remains on administrative leave, pending an investigation. However unconventional, his video-recorded speech—in its entirety—is protected by the First Amendment, which Ferris State, a public university, is therefore almost certainly violating.

To be humorless and obtuse is one thing, and can be amusing in its own right. To feign humorlessness and obtuseness is creepy, and in this case probably unconstitutional. Accordingly, Mehler has initiated a lawsuit.

Almost twenty years ago, the satirical newspaper The Onion ran a story with the headline, “ACLU Defends Nazis’ Right to Burn Down ACLU Headquarters.” It was reductio ad absurdum for a laugh—the humor residing in the fact that it was only, say, a quarter of a turn past what the American Civil Liberties Union would really consider doing.

Many over the years have accused the ACLU of making a virtue out of practicing a kind of reductio ad absurdum in reverse, by not only defending the rights of the most marginal and often despised one percent among us but also insisting that those rights be honored by the rest of us, the 99 percent whose opinions on that one percent typically range from indifference to hostility. But the ACLU has done so on the principle that it is vital to defend the freedoms and rights of even the most repugnant, lest the very repugnance of such people confuse us into committing self-sabotage on our own freedoms and rights, which are inescapably the same freedoms and rights. Were we to make them situational, contingent upon popularity, those freedoms and rights (our own and everyone’s) would start to erode—gradually, then suddenly (to quote Hemingway). 

For most of its 102-year history, the ACLU has relentlessly pursued this basic program. The organization originated to defend the rights of conscientious objectors to America’s involvement in the First World War—some of them committed communists and anarchists, accused of having distributed seditious literature with the intent of stymieing the war effort. The ACLU joined the fight to defend the much abused due-process rights of the Scottsboro Boys, and asserted the right of Clarence Earl Gideon (later of Gideon’s Trumpet fame) to legal representation and therefore a fair trial. In the 1940s the organization documented the universally shameful, usually illegal, and often bloody persecution of a despised religious minority, the Jehovah’s Witnesses, and defended the Witnesses’ rights to refuse to salute the flag and to proselytize—and oppose war—in the public square. The organization has supported both a woman’s right to choose an abortion and the rights of anti-abortion protesters to demonstrate (many would say in an offensively provocative manner) outside abortion clinics. It has defended gay rights and successfully opposed a New York City government mandate that the St. Patrick’s Day parade had to be open to gay groups (on the solid grounds that to deny a permit to a parade because of its expressive content violates the First Amendment). It has stood against high schools banning students from wearing pro-gay t-shirts; it has stood against high schools banning students from wearing anti-gay t-shirts. In perhaps its most infamous case, it defended the Nazis’ right to hold a rally in the heavily Jewish Chicago suburb of Skokie (the inspiration for that Onion article). 

When citizens of Japanese ancestry were being uprooted from the West Coast during the Second World War and confined to concentration camps in America’s interior, West Coast affiliates of the ACLU—somewhat in conflict with the organization’s national headquarters back east—sought test cases to assert the illegality of incarcerating people strictly on the basis of race and ethnicity, and in the absence of any demonstrable criminal activity on the part of the incarcerated. The efforts of the ACLU affiliates proved quixotic, though history—and President Ronald Reagan—ultimately vindicated those efforts, on exactly the grounds the ACLU affiliates had asserted more than forty years prior. 

The affiliates’ work on behalf of mistreated Japanese citizens highlights the ACLU’s commitment to the everyday protection of people’s rights on the local level. For all of the organization’s high-profile defenses (a few of them cited above), and for all the national attention the organization has garnered, the bulk of its work has been devoted to people mostly unknown to history, involving cases, innumerable and small, that were adjudicated with little or no attention, but with utmost dedication on the part of ACLU representatives. 

So thorough and principled was the organization’s commitment to individual rights and freedoms that when General Douglas MacArthur needed to create a civil society almost from scratch in war-flattened Japan in the late 1940s, he turned for help to none other than ACLU cofounder and inaugural executive director Roger Baldwin. Of Baldwin MacArthur had this to say:

Roger Baldwin’s crusade for civil liberties has had a profound and beneficial influence on the course of American progress. With countless individuals finding protection in the nobility of the cause he has long espoused, he stands out as one of the architects of our cherished American way of life.  

That the ACLU had zealously defended the rights of those who resisted America’s entry into the First World War and that Baldwin himself had gone to prison for refusing to register for the draft during that war obviously didn’t diminish the esteem that MacArthur—who in combat on the Western Front was awarded the Distinguished Service Cross twice and the Silver Star seven times—held for that principled organization and its founder.

More recently, however, some have argued that the ACLU’s commitment to free speech has become worrisomely situational, influenced as much by the organization’s dedication to progressive advocacy as by its viewpoint-neutral adherence to constitutional principles. The ACLU’s own case-selection guidelines reveal the organization’s attempt to square this circle:

The impact of the proposed speech and the impact of its suppression: Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed, depending on factors such as the (present and historical) context of the proposed speech; the potential effect on marginalized communities; the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values; and the structural and power inequalities in the community in which the speech will occur. At the same time, not defending such speech from official suppression may also have harmful impacts, depending on the breadth or viewpoint-based character of the suppression, the precedent that allowing suppression might create for the rights of other speakers, and the impact on the credibility of the ACLU as a staunch and principled defender of free speech. Many of these impacts will be difficult if not impossible to measure, and none of them should be dispositive. But as an organization equally committed to free speech and equality, we should make every effort to consider the consequences of our actions, for constitutional law, for the community in which the speech will occur, and for the speaker and others whose speech might be suppressed in the future.

“In other words,” as former ACLU executive director Ira Glasser put it recently on Real Time With Bill Maher, when lamenting what he sees as the organization’s current drift, “before they’re gonna defend your free speech, they wanna see what you say. That’s the ACLU? No, that’s the government. What is the ACLU doing saying that?” In reference to the concern about defending speech that may be “contrary” to the organization’s values, Maher pointed out that in the Skokie case the Nazis’ values obviously didn’t reflect Glasser’s or the ACLU’s. Glasser replied that in fact most of the speech that the organization defended in his long tenure didn’t jibe with the ACLU’s values. “That’s the point,” he stressed. 

In addition to citing “structural and power inequalities,” the case-selection document elsewhere invokes “deep-rooted institutional biases that continue to reify inequality” and asserts that “Each affiliate should give the empowerment of all people of color within their community the highest priority.” Valid as such concerns and priorities may be, they seem to betray a suspicion of, or at least pessimism toward, the very constitutional precepts on which civil libertarians must rely in order to protect the rights of all individuals. Such suspicion or pessimism perhaps informs the following remark made by Dennis Parker, onetime head of the ACLU’s Racial Justice program (he left the organization in 2018): “First Amendment protections are disproportionately enjoyed by people of power and privilege.” 

It does indeed suggest a dilemma if an organization dedicated to the defense and perpetuation of America’s founding principles sees in one of those very principles not explicit freedoms granted equally to all but, instead, inherent bias and the perpetuation of power and privilege for the few. Fortunately, it is not at all clear that the ACLU, institutionally, takes such a view. The organization is something of a loose confederation of affiliates and does not presume to speak with one voice. Accordingly, David Cole, the ACLU’s national legal director, responded to Mr. Parker’s remark by noting (as quoted in The New York Times): “Everything that Black Lives Matter does is possible because of the First Amendment.”

Yet that same New York Times article, from June 6, 2021, reveals developments even more worrisome than the ACLU’s apparently wavering commitment to the defense of free speech. It’s one thing to opt out of such a defense in select cases, owing to conflicts with other of the organization’s explicit goals. It’s another thing entirely to advocate censorship, as one of the ACLU’s staff attorneys, Chase Strangio, did in a tweet on November 13, 2020. In response to the publication of Abigail Shrier’s book Irreversible Damage: The Transgender Craze Seducing Our Daughters, Strangio tweeted: “Also stopping the circulation of this book and these ideas is 100% a hill I will die on.” 

It would normally be inapt if not gauche to point out that Strangio himself is transgender. His gender status should be no more relevant in this matter than was ACLU attorney David Goldberger’s Jewishness when he successfully defended the Nazis’ right to march in Skokie. But it would seem that only intensely personal feelings on transgender matters could explain how a civil-liberties attorney could so completely abandon any pretense of objectivity in this case—including his recourse to Nathan Hale tones when expressing his commitment to censorship and suppression. That an attorney holding such views remains in good standing at the ACLU suggests a decided shift in the organization’s priorities.

Would that it were the only shift. As the Times also noted, during the Brett Kavanaugh Supreme Court confirmation hearings, in 2018, the ACLU—which had so long and so consistently stood up for the rights of the accused and the presumption of innocence—ran an ad that (as nearly as it could within defamation laws) found Kavanaugh guilty in the face of mere allegations (however numerous) of sexual misconduct. For an organization that helped defend the Scottsboro Boys’ rights of due process when confronted with allegations of rape to rely on a simple formula of “believe women” suggests another decided shift in the organization’s priorities.

The Kavanaugh ad solemnly notes: “The ACLU doesn’t support or oppose candidates to political or judicial office. We’ve made a rare exception. Brett Kavanaugh isn’t fit to serve. We’ll get as loud [as] we have to for our opposition to be heard.” This gambit of doing something you stress you don’t do, because, says you, circumstances give you no other choice is unworthy of its presumed solemnity. Fortunately, it’s something one can credibly attempt only once, if that. Let the supposed exception start to look more like a rule, and all claims to be above the fray quickly collapse.

But as the Times notes, that same year, 2018, the ACLU entered the fray again, pouring “$800,000 into what looked like a campaign ad for Stacey Abrams during her bid for governor of Georgia—a questionable move for a nonprofit organization that calls itself nonpartisan.” That the ACLU indulged in partisanship not once, in a “rare exception,” but twice in the same year suggests yet another shift in the organization’s priorities.

We at the United States Free Speech Union unequivocally recognize that where defense of the First Amendment is concerned, the ACLU is the giant on whose shoulders we are standing. Any free-speech organization must recognize the tremendous debt we all owe to the century’s worth of work already accomplished by the ACLU in this regard—while also saluting the ACLU’s laudatory ongoing work in this same vein, whatever the organization’s case-selection criteria. Any defense of free speech is good, no matter the qualified reasons for mounting that defense. 

Moreover, we find it a bit rich that some on the political right indict the ACLU with betraying its principled adherence to free speech in pursuit of a politically progressive agenda. After all, but for a few honorable exceptions, conservatives have been at best uninterested in and at worst hostile to the ACLU’s stand throughout its history on behalf of the civil liberties and free-speech rights of all Americans. Too many on the right who now find it advantageous to embrace free speech seem to have forgotten that a principled commitment to free expression has, historically, hardly been a salient feature of the right’s agenda. They should recall that William F. Buckley’s God and Man at Yale—the publication of which “marked the birth of the modern conservative movement,” as the historian of conservatism Lee Edwards rightly asserts—is nothing less than a manifesto against freedom of expression, open-mindedness, and academic freedom, and for the proposition that teaching and scholarship (at Yale and similar universities) should be restricted to those who adhere to specific and—by Buckley’s lights—politically, economically, and religiously correct dogma. They should also recall that in 1984—decades before the ACLU could possibly have succumbed to wokeism—President Ronald Reagan bragged that he wore the ACLU’s criticism as “a badge of honor,” and that four years later, his Vice President, George H.W. Bush, sneered that being “a card-carrying member of the ACLU” was a disqualifying credential for the Presidency.

Furthermore, since its founding the ACLU has energetically defended not just free-speech rights but the fundamental equality rights of all people, which in practice has meant especially advancing the rights of racial minorities, women, and members of other traditionally oppressed groups. As Nadine Strossen, the ACLU’s president from 1991 to 2008, explained the organization’s role: “Just as the right to march in a peaceful demonstration does not become a Nazi right when asserted by Nazis, so too the right to be free from discrimination does not become a special right of minorities, women, lesbians, or gay men, just because these constituencies struggle to secure it.” So, given that a progressive political agenda will stress the rights of groups regarded as subjugated (however defined), there would, perforce, be substantial overlap between that progressive agenda and a civil-liberties agenda pursued by such organizations as the ACLU. We’ll leave it to others to decide whether, in the case of the ACLU, the former agenda has subsumed and thereby contorted the latter.  

Being an organization with—as our name implies—a narrower remit than that of the ACLU, we are dedicated to the nearly unqualified defense of free speech, viewing its abridgment anywhere as a threat to speech everywhere. The urge to abridge, suppress, chill, or outright censor speech is often rooted in a beguiling sense of nobility, the perceived nobility rising to heights all the more windswept when the speech in question is perceived (perhaps accurately) to be low and mean. Aside from conflicting with the First Amendment, however, any precedent establishing the de facto or de jure abridgment, suppression, etc., of speech becomes a potential menace to us all—not least to those initially in favor of such abridgment. As Ira Glasser remarked almost thirty years ago: “Laws that restrict speech are an abomination, for a very simple reason: They’re like poison gas. They seem to be a good weapon to vanquish your enemy, but the wind has a way of shifting.”

Wittingly or not, Glasser was echoing sentiments expressed by Supreme Court Justice Owen J. Roberts in his impassioned dissent in Korematsu v. United States, one of the ACLU’s losing efforts to contest the legality of incarcerating Japanese American citizens during the Second World War. Roberts not only stressed the appalling basis for the incarceration itself but also warned of the “far more subtle blow to liberty” that came with the Supreme Court’s legal sanction of such an undertaking, sanction that made so dubious a precedent into a kind of legal principle. “The principle then lies about like a loaded weapon,” Roberts continued, “ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”

No matter how dangerous we may consider certain words, certain views, certain sentiments, the urge to suppress them—no matter how noble it may feel—is far more dangerous, to us all. The U.S. Free Speech Union is categorically dedicated to opposing not only such suppression but also the blow to liberty that comes with normalizing such suppression.

In his recent appearance on Real Time With Bill Maher, Glasser recognized the ACLU’s perfect right to become “more of a political, partisan . . . progressive organization.” But, he went on, the concern is that there is no other ACLU, and if no one else commits to the pure, nonpartisan defense of free speech, “then the government gets to decide who can speak, and that’s the most dangerous thing of all.”

We agree wholeheartedly with Mr. Glasser.

Benjamin Schwarz is President and CEO of the United States Free Speech Union

Jon Zobenica is Senior Fellow of the United States Free Speech Union

Benjamin Schwarz

CEO, United States Free Speech Union

Ronald L.Vaughn
President, University of Tampa 

president@ut.edu

February 3, 2022

Dear President Vaughn

As the President and CEO of the United States Free Speech Union, much of my time is spent taking others to task for abridging or failing to recognize the principles of free expression.  But a year ago this month the actions of your university and, specifically, two of its members afforded me the rare pleasure of writing a letter of affirmation.  On the anniversary of the actions that prompted that admirable conduct, I write to renew my of praise Jocelyn Boigenzahn, the director of your university’s art galleries and a lecturer in the art department, and to applaud your university’s efforts to ensure that the art of Emma Quintana, also a lecturer in the art department, was displayed unmolested in the university’s gallery.

As you’ll recall, Ms Quintana’s installation, White America: Supremacy, Nationalism and Patriotism, provoked a disparaging UTampa College Republicans Instagram post, which was followed by an impassioned social media debate. The artwork was then surreptitiously disassembled by a group of unknown students who objected to its use of the American flag. In response to the vandalism of Ms Quintana’s installation and to promote discussion, Ms Boigenzahn encouraged students and other gallery patrons to respond to the installation and then collected and displayed those responses in the gallery, along with this inspiringly uncompromising statement: “In accordance with guidelines provided by the American Association of University Professors that align artistic expression with academic freedom, the university does not censor artistic expression and encourages dialogue that is both educational and productive.”

Effective art always engages its audience, and will often arouse intense reactions and dispute. Ms Quintana’s installation expressed a controversial idea; it therefore provoked, and even offended, many of those who viewed it. In their Instagram message, the UTampa Republicans responded to Ms Quintana’s work in a wholly appropriate manner--and indeed, in a manner in keeping with the intentions of Ms Quintana and of the gallery that displayed her art: They countered a robust expression of an idea with an equally robust rejoinder. On the other hand, the reaction of the students who dismantled Ms Quintatana’s installation was reprehensible and dangerous. In a free and self-critical society, ideas should be openly contested; they cannot be suppressed and driven from the public square.

An art gallery and a university, especially, have a responsibility to foster the expression of controversial ideas--and to protect that expression from those who seek to restrict it. In this light, I find the actions of Ms Boigenzahn to be exemplary. Her gallery provided a forum for Ms Quintana to convey her ideas. She promoted a platform for students and other gallery patrons to deliberate and debate those ideas. And she forthrightly articulated her university’s and her gallery’s obligation to safeguard artistic expression and to nurture open discussion. Ms Boigenzahn’s actions demonstrated the vital role that universities and cultural institutions play in a democratic society, and therefore her actions reflected brilliantly on the University of Tampa.

At the time of the controversy surrounding her installation, Ms Quintana reported that some of her colleagues expressed worry that her appointment would not be renewed owing to the contention her art aroused. We, on the other hand, were confident that, given your university’s recognition of the value of free expression, departmental and university decisions regarding the retention of Ms Quintana would be unaffected by the views she expressed in her art and unaffected by the objections, however vocal, raised by her critics. A year later, we are heartened to see that Ms Quintana remains a lecturer at UTampa.  Support for free expression is hardest when it is challenged. I therefore commend the university and faculty for their resolve and commitment to principles of intellectual and artistic freedom.

Yours sincerely,

Benjamin Schwarz

So Dean Treanor has almost certainly breached Mr. Shapiro’s terms of employment, as well as the principle of academic freedom. The progressive civil libertarian Nadine Strossen, the Academic Freedom Alliance, and the 173 university professors assembled by the First Amendment scholar Eugene Volokh have eloquently condemned Dean Treanor’s actions. We have nothing to add, save to note that, in addition to revealing himself as something of a thug, Dean Treanor has also shown himself to be at best ignorant of, and at worst inimical to, the intellectual and scholarly enterprise that is academe.

The purpose of academic freedom is to promote the unfettered pursuit and transmittal of argument, ideas, and knowledge. In its founding document in 1915—on the eve of the still unmatched suppression of free thought in the academy that accompanied America’s entry into the First World War and the first Red Scare—the AAUP defined as one of the three elements of academic freedom the obligation of academic institutions to protect scholars’ “freedom of extramural utterance and action.” From that time through the anti-left wing witch hunts of the late 1940s and 1950s, continuing through the Vietnam era to now, the greatest threats to academic freedom have arisen precisely from that impulse to bar scholars from the academy and from academic discourse because some or most have found their extramural opinions abhorrent. Robert Maynard Hutchins, widely considered the greatest university president of the last century, defined the only way academic freedom can be defended in the face of that threat—and Dean Treanor has much to learn about the responsibilities of academic leadership from Hutchins’s uncompromising injunction:

The only question that can be properly raised about a professor . . . is his competence in his field. His private life, his political views, his social attitudes, his economic doctrine, these are not the concern of his university; still less are they the concern of the public. I have no patience with the philosophy of “Yes, but” as applied to this matter. Any position short of the one I have stated will be found to involve such compromises that nothing is left of academic freedom.

By succumbing to the temptation to punish Mr. Shapiro for publishing his ideas—in fact, by leading the charge against Shapiro—Dean Treanor has subverted the very principles that it is his duty to uphold.

By Jon Zobenica

Senior Fellow

USFreeSpeechUnion

The artist and director Nina Paley once enjoyed widespread success and acclaim. Her animated feature Sita Sings the Blues premiered in Europe at the Berlin International Film Festival and in North America at the Tribeca Film Festival, and the same work was hailed by A. O. Scott of The New York Times as a “tour de force”—“dazzling,” “affecting, surprising and a lot of fun.” She has more recently been sought out, with enthusiasm, to participate in screenings of her films at festivals and film series large and small, scattered from San Mateo, California, to Brattleboro, Vermont, to Brussels, Belgium.

In the interim, Paley has also come out as candidly “gender critical,” meaning she’s a feminist who affirms biological sex over gender. This amounts to a de facto morals-clause violation these days, one for which, owing to pressure from outside activists, she has been summarily disinvited (sometimes apologetically, but always summarily) from festivals and film series that had enthusiastically sought her out—those in San Mateo, Brattleboro, and Brussels. Those activists label Paley a “notorious transphobe” whose “violent” words “contribute” to nothing less than “murder”and “torture,” and whose films therefore deserve no showing or commentary. (Her films thus far have had nothing to do with gender.)

If words are to indicate anything real—if violence and murder are to have any meaning beyond the rhetorical—these accusations must be examined, and if necessary confronted.

An admittedly incomplete sampling of Paley’s interviews and blog posts reveals nothing that could accurately be called violent—no more violent, in any case, than the charges of violence levied against her. She has said (and drawn) things that are certainly disagreeable to those who, well, disagree. And some of those people insist that Paley’s words (and drawings) are violent, but insistence isn’t its own proof. Given all this, there’s no point in citing and litigating anything specific Paley has said or drawn. She’s online, and people can do their own browsing and reach their own conclusions, which most of us who have followed the broader debate have reached already, whatever our opinions.

The basic charge, however, is that because she maintains there are qualifiable differences between, for example, transwomen and biological females, Paley and gender-critical people like her take away others’ humanity, thereby clearing the way for the murder of transgender people. It is a kind of “society made the murderers do it” assertion, with the gender critical personifying society. So just like that, they’re accessories to murder. Ergo, their utterances must be “violent” at the very least—no matter the words of support they might and often do otherwise express for transgender rights and well-being.

Sometimes invoked as proof of their vaguely proximate contribution to homicide are sites like the Trans Murder Monitoring Project, where one can find this useful document, which tabulates the murders of transgender and gender-diverse people worldwide from January 1, 2008, to September 30, 2020. The information is broken down by year, by region and country, by the occupation of the victim, and by the cause and location of death. One instantly notices that 79 percent of the homicides come from Central and South America (2,894 out of 3,664). But even that number is unfairly broad. Brazil alone accounts for more than 41 percent of the worldwide murders (1,520 out of 3,664). Add to that the tally from Mexico (second overall on the list), and you’ve accounted for almost 56 percent of the global total for that time period. Two countries. The United States, third on the list, contributes a little more than 7 percent to the total (its number being roughly half that of Mexico’s). Also of note: nearly a quarter of the victims worldwide were sex workers (881 out of 3,664), and the leading causes and location of death were gunshot (38 percent) or stabbing (20 percent) in the street (31 percent).

Every one of these deaths is heartbreaking, and the Trans Murder Monitoring Project’s findings jibe with those of a National Institutes of Health study that states plainly: “It has been estimated that women involved in street prostitution are 60 to 100 times more likely to be murdered than are nonprostitute females.” Another NIH study confirms that, “Prostitute women have the highest homicide victimization rate of any set of women ever studied.” In other words, sex work, particularly that involving street walking, is—no matter who does it—an exceedingly dangerous activity.

But to take these verifiable data, scrub them of all context (region, country, profession, etc.), and use them to indict on charges of deadly harm a feminist animator from Illinois (or anyone else who is merely gender critical—J. K. Rowling, for instance) is an act of bad faith or lazy thinking, which in either event follows a process that public intellectuals have warned us about for decades. In 1979’s The Culture of Narcissism, Christopher Lasch observed: “By using accurate details to imply a misleading picture of the whole, the artful propagandist, it has been said, makes truth the principal form of falsehood.” In 1955’s The Passionate State of Mind, Eric Hoffer remarked: “Add a few drops of venom to a half truth and you have an absolute truth.” And in his 1945 essay “Politics and the English Language,” George Orwell wrote:

But if thought corrupts language, language can also corrupt thought. A bad usage can spread by tradition and imitation, even among people who should and do know better . . . What is above all needed is to let the meaning choose the word, and not the other way about . . . [O]ne ought to recognize that the present political chaos is connected with the decay of language, and that one can probably bring about some improvement by starting at the verbal end.

To observe any online forums, Twitter feeds, or comments threads, however, is to come to the melancholy conclusion that anyone attempting to argue against the hyperbolic equating of “gender critical” with “violence” (or worse) ends up like Alice in Through the Looking Glass, contesting Humpty Dumpty’s fanciful abuses of language:

“I don’t know what you mean by ‘glory,’” Alice said.

Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’”

“But ‘glory’ doesn’t mean ‘a nice knock-down argument,’” Alice objected.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

Indeed, this is about power—in this case the power to equate words with violence (or worse) and to have others relent or consent, for fear of being accused of such violence (or worse) themselves. What too few seem to consider is that if we’re conditioned to think of words as violence, then some among us will inevitably start considering violence a perfectly measured response to words—an outcome no less (perhaps all the more) tragic if that violence is turned on the self. Feminist icon Eleanor Roosevelt is quoted as having said, “No one can make you feel inferior without your consent.” (A variant that was once—though I suspect is no longer—current in schoolyards across the land was, “Sticks and stones may break my bones, but words will never hurt me.”) By the Rooseveltian way of thinking, any “violence” one presumes to have suffered from the mere words of another is at least in part self-inflicted—and not necessarily the smaller part.

But because of the vogue for declaring one’s own victimhood, the already vexatious heckler’s veto has become something of a self-styled mourner’s veto as well, which means not only that your proceedings (film series and festivals, in this case) will be disrupted by those who don’t approve but also that you (the series/festival organizers) will bear a charge of obduracy if you go ahead with the participation of someone who has unequivocally—if speciously—been deemed “violent.”

The problem with succumbing to such a veto is twofold, and was nicely articulated by Christopher Hitchens during a debate at the University of Toronto in 2006. Summing up the core idea of three seminal writings on free speech—John Milton’s Areopagitica, Thomas Paine’s introduction to The Age of Reason, and John Stuart Mill’s On Liberty—Hitchens remarked “It’s not just the right of the person who speaks, to be heard. It is the right of everyone in the audience to listen, and to hear. And every time you silence somebody, you make yourself a prisoner of your own action, because you deny yourself the right to hear something.”

Hitchens went on to pepper the audience with a series of direct questions, which I’m paraphrasing only slightly: To whom would you delegate the task of deciding for you what you can read? To whom would you give the job of deciding for you what or whom you can listen to? Who should be selected to relieve you of the responsibility of hearing what perhaps you should hear? Hitchens asked for some nominees for the task. There were none.

Yet film festivals and series from San Mateo to Brattleboro to Brussels are giving to outside activists the job of deciding for others not only whether Nina Paley gets to speak at certain events but also whether attendees at those events even get the opportunity to hear this gifted animator and director speak on the subject of making animated films. This amounts to a kind of prior restraint—on both the speaker, who is anathematized, and the audience, which is infantilized.

On such prior restraint, Hitchens (still in Toronto) had this to say:

It may not be determined in advance what words are apt or inapt. No one has the knowledge that would be required to make that call. And, more to the point, one has to suspect the motives of those who do so—in particular, the motives of those who are determined to be offended.

The determination to be offended is a powerful cultural force these days, and if Nina Paley’s experience is any indication, it will take people of firmer stuff than the typical festival organizer is made of to stand up to it. None of the organizers really appeared to try. Either they capitulated as soon as outside pressure was brought to bear, or—having noticed themselves that Paley is “gender critical”—they reached out to local transgender activists for consultation, as if such activists were the organization’s own legal department or perhaps the town’s cultural commissariat, after which consultations the organizers generally did what they were told.

One organization, however, the Elles Tournent festival in Brussels, Belgium, tried—in irresolute fashion—to have it both ways. It had planned to screen Paley’s film Seder-Masochism, and had duly featured it on the Elles Tournent poster/program. But just as the festival got underway, transgender activists condemned the organizers for the planned screening. A power struggle ensued within the organization, during which Elles Tournent took to Facebook to apologize and to officially denounce Paley’s words as “violent” and intolerable. (It also struck Paley’s screening from the program—a move with hints of David King’s disturbing 1997 book, The Commissar Vanishes.) But in the same post, the festival admitted that with limited publicity, it would screen the film anyway, for free—a decision that only piqued the activists further. Commenting on the Facebook post, they hotly accused the organizers of hypocrisy and of contributing to (what else?) “violence.” Some vowed to boycott the festival outright and evermore.

If those organizers had been in the audience in Toronto in 2006, they would have heard this admonishment from Christopher Hitchens: “Bear in mind, ladies and gentlemen, that every time you violate, or propose to violate, the free speech of someone else, you are—in potentia—making a rod for your own back.” To earn pique in defense of a solid principle such as free speech is a difficult enough experience. To abandon principle in an attempt to earn favor is, inevitably, to find oneself in a far more difficult position. We should always, per Hitchens, bear this in mind.

A crucial question remains, however: What if Paley really were an unabashed bigot, a person of such turpitude that the only thing one could say in her favor is that she’s a talented animator and director? She would still be worth inviting to a festival or film series, because a person of her skills and experience has something valuable and even rare to impart about aesthetic matters, animation techniques, directorial judgments, and so on—all of which could help advance the cause of art, for which everyone has gathered, and for which she was invited in the first place. This is the raison d’être of these festivals. They’re not occasions for handing out citizenship awards. If arts festivals of whatever kind are required to become such, art itself will suffer, become duller, because much of the wisdom on which aspiring and future artists rely, that of perhaps otherwise reprehensible virtuosos, will be misplaced and maybe lost forever in a moral panic.

Even more important is to understand that blacklists are bad not only when directed at people we may (now), by consensus, consider good. They’re just as bad when directed at people who are abominable but who nevertheless are making whatever worthwhile contributions to the sum of human knowledge and/or creativity (say, in the fields of science, the arts, scholarly research, etc.)—contributions that should be judged on their own merits and not rejected out of hand because of what we consider a guilty association with the scientist, artist, or scholar as a person. We need to judge the scientist qua scientist, the artist qua artist, the scholar qua scholar. A deplorable man (say, a white supremacist–cum–sadistic husband) might be a great scientist, in his capacity as such, and were he to discover the long-sought cure for cancer, it would be outright misanthropic to seek to deny everyone the benefit of that discovery lest we appear to be validating such a man (or “contributing to violence,” as the saying goes).

This is not to suggest that one purchases immunity through outsize contribution, because this isn’t about immunity. (If laws are broken, and not just norms violated, that’s its own matter.) Nor is it an appeal for magnanimity on everyone else’s part. Rather, it is a call to take the common good—big or small—where we find it, for the benefit of us all. It might be a highly original animated film done by a “notorious transphobe.” It might be some little-noticed but nonetheless scrupulous academic research done by a committed Communist or anti-Semite. It might be the donkeywork performed by that cancer researcher’s lab assistant, who by some people’s estimation is a moral degenerate: a sexual pervert, say, or a homophobe, a fascist, a misogynist, a misandrist, a radical Islamist, you name it.

If we can’t take the good with the bad, or take the good while—in a delimited way—reproaching the bad, then we are making ourselves unnecessarily poorer as a society and a civilization, by rejecting the commendable fruits of intellectual or artistic labor only because we disapprove of the soils from which they spring. ++

Any land acknowledgement—a perfunctory nod to the fact that the land on which the university sits was once inhabited by indigenous peoples—would be unrelated to most course content on most syllabi. But if acknowledgement is to be made, UW requires that professors hew to the viewpoint endorsed by the university itself, or else. Per FIRE’s letter to the university president, such viewpoint-based restrictions are a violation of the First Amendment, to which public universities like UW are inescapably subject.

See here for FIRE’s follow-up on Thursday, 13 January, citing the university’s compounding of error.

Further reading on land acknowledgements, both pro and con.