5 Points on the State of Free Speech in the U.S. and Abroad

The problem is that, to a large degree, it seems that American intellectuals -- particularly those in academia -- have fallen out of love with freedom of speech.
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Last week, I had the pleasure of joining some of my favorite names in free speech and civil liberties as a panelist at spiked magazine's "free speech NOW!" event: "The First Amendment in the 21st Century: Reinvigorating Old Rights for New Times." I joined panelists Jeffrey Rosen, president and CEO of the National Constitution Center, David L. Hudson, Jr., the Newseum Institute's First Amendment Ombudsman and Reason staff editor Robby Soave to discuss, "Is the First Amendment Enough? The Crisis of Freedom on Campuses and Beyond."

Here are my opening remarks, with a few small edits and added links:

1) The situation for freedom of speech globally is dire. The unfree world, whether it be North Korea or China, is still unfree. The Islamic world is almost certainly less tolerant of dissent than it was before the fundamentalist revival of the 1970s. The states of the former Soviet Union, especially Russia, are some of the most dangerous places in the world to be a journalist. And, most disappointingly, Europe, which Brendan [O'Neill] can speak more to, has turned on speech, whether it's in the form of hate speech codes, national security laws, the insane "right to be forgotten" movement or blasphemy laws (even in countries as secular as Denmark). I call this problem the "shrinking circle of freedom of speech."

2) Free speech in the US is not doing so hot either, especially on campuses. I could spend all day talking to you about the approximately 55% of American universities that maintain unconstitutional speech codes, but here's some quick examples. In 2013 we saw students at two different colleges being told they could not hand out constitutions, in one case not even to honor Constitution Day, without confining themselves to a tiny free speech zone and getting advance permission from the administration. Another school forbade a student from protesting for animal rights unless he wore a "free speech badge" signed by an administrator. (Here I held up my two of my books, Unlearning Liberty and Freedom From Speech, as well as my article with Jonathan Haidt in The Atlantic for anyone who wanted to learn more.)

3) There is an argument that my British mother would make as well that the UK is somehow freer for its lack of a Bill of Rights. The idea is essentially that you are freer if your rights are protected by being inscribed into the hearts and minds of individual citizens. James Madison would surely agree. However, free speech can be killed in an instant. It can go away any time the hearts of the people stray, and the hearts of the people stray from basic rights all the time, particularly when they're angry, outraged or frightened. I think the last 10 years in the UK have proven once and for all that if you want to protect free speech, you need a law like the First Amendment, because moral panics and perceived national emergencies happen all the time.

You could say that Americans sometimes "hide behind the First Amendment" when the going gets tough and don't always bother to stand up for speech from a moral or philosophical standpoint. My response to that is, damn right! Society loses its mind on a relatively regular basis, and during those times it's good to have a strong legal bulwark to hide behind.

4) To be clear, however, something like the First Amendment is necessary, but not sufficient for truly protecting free speech. Many of the current threats to open discourse do not touch upon law; they touch more on culture. Whether it's trigger warnings, Twitter mobs, campus or off-campus groupthink or what Jon Haidt and I call "vindictive protectiveness," the threats to open discussion, pluralism and candor cannot be fixed by law. They can only be fixed by cultural pushback and wise old concepts like giving people the benefit of the doubt, hearing the other side out and generally exercising my one highfalutin term, "epistemic humility."

5) But the problem is that, to a large degree, it seems that American intellectuals -- particularly those in academia -- have fallen out of love with freedom of speech, realizing that it's sometimes an impediment to carrying out what they deem to be more important parts of their agenda. The transformation of freedom of speech from an international human right, which was once an American ideal, into merely an American "regional prejudice," is one of the reasons why we're going to have such a hard time fighting the threats to free speech both here and abroad.

In this sense, I am a radical. I think freedom of speech should be a global value. I think it should be safe to be a dissenter, an atheist or, for that matter, a fundamentalist, of any religion, anywhere in the world. Anything short of this universalist approach and we, citizens of a country that claims to respect free speech, show a fractured and ineffective front before the abuses of journalists anywhere from Mexico to Azerbaijan, the murders of atheists in the streets of Bangladesh, the imprisonment of political dissenters in Israel, the beating and jailing of student protesters in Myanmar or the execution of cartoonists in the very heart of Europe. We must recommit ourselves to the ideal of freedom of speech as a basic human right for all.