Beyond the First Amendment

When people abandon the spirit of liberty, no law can protect it

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.