The Messy Business of Free Speech

In Free-Speech Territory

The use and abuse of the First Amendment.


Floyd Abrams has been perhaps the most prominent individual defender of the First Amendment in the United States, both in the courts and in numerous books and articles, particularly since he represented The New York Times in the Pentagon Papers case in 1971. That’s a very long run. Abrams is still at it in his short new book, The Soul of the First Amendment. It’s an effort, at a time when he believes the First Amendment is under assault from various quarters, to distill the leading arguments from his career, and it covers tensions between free speech and attempts to regulate money in politics—Abrams represented then–Senate minority leader Mitch McConnell in the Citizens United case that opened the floodgates of dark-money spending in elections—and hate speech, and to protect privacy and national security.

Each of these debates is important to have, and his chapters on them, when taken together, make a larger argument about free speech—a kind of First Amendment fundamentalism that makes only cursory acknowledgment of the countervailing concerns, indeed at times real harms, of racial intimidation or digital attacks on privacy and reputation—and which is now under strain from a number of progressive activists appalled at the ACLU’s defense of the neo-Nazis who marched in Charlottesville. But Abrams’s way of engaging the subject of free speech leaves one feeling that it’s past time to shake up First Amendment discourse. The Soul of the First Amendment makes all the standard absolutist arguments that any possible gain from regulation of speech is outweighed by its harms (arguments I happen to agree with, despite my concern about the real wounds that speech can sometimes wield, since I have yet to encounter a regulatory scheme that wouldn’t backfire against political, racial, and religious minorities in a world in which bureaucrats and prosecutors would be making the decisions about what passes), but as it does so it also reveals a considerable deficiency in how free speech is viewed today. It would be hard to grasp from this volume that free speech has been a vital tool for progressive social change, including all movements for equality. After reading this book, one is struck by how little the lines of argument have changed and the fear that Abrams, despite an honorable and accomplished career, may be part of the problem.

Abrams is a big believer in the American approach to free-speech rights. He also sees threats to their exceptional nature from many quarters. It is perhaps for this reason, in an odd echo of the Trump administration, that Abrams saves his greatest fire in his new book for two targets: Europe and the left. Among the things he notes that have bothered him and provoked his new book: His young son was turned away from a British cruise-ship screening of All the President’s Men some years ago because of the movie’s profanity; Belgium and England penalize anti-Islamic leaflets and posters; and in Finland and Germany, legal actions were taken by politicians and royalty to protect the privacy of their relationships and families. To his credit, Abrams concedes that “one could hardly argue that Canada, whose approach to [free speech] is in many ways similar to that of democratic Europe, suffers under a yoke of repression as a result.” Nevertheless, he spends many pages of a short book focusing on what he sees as insufficient protection for free speech in other Western democracies.

Most of Abrams’s arguments with European free-speech practice and with the left’s greater concern about the effects of hate speech on communities of color and women rely on little evidence or empirical studies; they are primarily anecdotal in nature. I understand that principle lies at the core of the debates, and it should. But it’s worth asking, and studying, what the relationship is, if any, between the way a society regulates some aspects of speech—slander and libel; racist and sexist utterances and writings; privacy; spending on election campaigns—and how robust its political debate actually is, and these are questions not just of principle but of social science and empirical analysis. I see no signs that political discourse in, say, France and the Netherlands is more crabbed and tame, as Abrams might have us believe, just because it is in some ways at least slightly more fettered than in the United States.

Some argue that free speech serves as a valve to let off toxins that would otherwise find their way into violence, but America, with its wide-open approach to hate speech, has a steady flow of racist and homophobic violence, not to mention sexual assault in a society where the most virulent forms of misogynist pornography are a click away on the Internet. Others think that curbing virulent forms of speech fosters tolerance and community, yet some Islamic communities in Europe, where you can be penalized for denigrating race and religion, nevertheless often seethe with resentment in ways rarely seen in America—though Trump is doing his best to catch up on that score. So it’s hard to draw a line between the prevalence of hate speech and violence and whether a society restricts it or tolerates it.

As Abrams does not tire of pointing out, from rejecting limits on speech offensive to minorities to allowing virtually untrammeled spending in elections, the United States is out of step with virtually all of our fellow democracies—a “weirdo” outlier, as Duke law professor Stuart Benjamin put it on a recent panel at Yale. But there are also signs of considerable slippage for First Amendment rights as traditionally construed in the United States, where a recent Pew Research Center poll registered 40 percent approval among millennials for the proposition that “government should be able to prevent people” from making offensive statements about minorities.

Abrams and his generation of First Amendment scholars and advocates have had a significant effect on law and attitudes on free speech, often quite positive. But at the same time, since contemporary First Amendment discourse has been dominated for decades by advocates like him, they have entrenched the notion that it has gotten in the way of race and gender equality and fair elections, and made way for the diminishing zone of privacy. This accounts for why the First Amendment has enjoyed, over time, support from the right as well as the left. Indeed, the right is increasingly coming to “own” the free-speech territory once held by progressives since the left keeps falling for the bait that bigots like Milo Yiannopoulos and Ann Coulter set out in daring them to block their campus appearances and conferring on them the status of victims. But it’s also because so many free-speech advocates have failed for years to make an affirmative case for the First Amendment not just as a set of ground rules but as an essential element of advancing social justice.

Free speech to the early ACLU activists nearly 100 years ago—a diverse assortment of lawyers, professors, and labor, religious, and cultural leaders—was a vital tool for standing in solidarity with social movements and advancing a progressive society. Indeed, the ACLU’s first annual report decried “an array of city ordinances and police regulations restricting free speech and assemblage,” and declared “behind this machinery stand the property interests of the country, so completely in control of our political life as to establish what is in effect a class government—a government by and for business.” It could be a tool for the right as well, and long before (in one of many harbingers of its current stance) the ACLU stood up for the rights of neo-Nazis to march in Skokie in the 1970s, the organization found itself defending the German-American Bund. But founded by a group of activists involved in antiwar and left activism—including Crystal Eastman and Roger Baldwin—it was primarily allied with left-wing causes, and most of its early clients were people like textile workers, coal miners, anti-fascist organizers, and birth-control pamphleteers.

It’s that spirit of unapologetic First Amendment defense—entwined with movements for equality and social justice—that is missing today, in particular among many free-speech lawyers. There could be no Movement for Black Lives, no Dreamers, no Fight for 15, no Occupy Wall Street—no vibrant resistance movement to the nearly hegemonic right-wing control of the federal government and more than 30 states that is reestablishing a “class government”—without it, and yet you would hardly know it from the way it is often written about.

Infused with the spirit of a quote Abrams uses from the late Saturday Review editor Norman Cousins that “the one word most expressive of democracy is ‘no,’” Abrams’s book is a good example of this obstinacy. While he acknowledges that there is “no doubt that a price is paid, sometimes a serious one” for adherence to the First Amendment, what that price is, and who is paying it, is largely missing from these pages. If you’re a woman or person of color feeling threatened by a climate in which racist and sexist speech has been made mainstream by the president of the United States—and with pervasive and frightening ripples through the rest of society, seen in Charlottesville and coming soon to a city near you—just toughen up and be thankful for the founding fathers. If you think the Koch brothers and their many counterparts around the country are undermining the spirit of democracy, roll up your sleeves and go to Washington (or Albany or Sacramento) like Mr. Smith. For a more thoughtful weighing by free-speech advocates of the competing interests at stake, and of the real-world impact of free-speech guarantees, you’d be better off spending some time with Timothy Garton Ash’s Free Speech: Ten Principles for a Connected World or David Cole’s Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, both published last year.

The limits of Abrams’s book are largely a matter of tone, not policy. But where campaign-finance reform is concerned, the problem I have with Mitch McConnell’s lawyer is one of substance. In his discussion of it, he points to the fact that Donald Trump was outspent by Hillary Clinton, but no fair assessment of the power of money in politics should look only at the presidential election. In fact, the most striking disparity, as a new paper by Rob Stein and Felicia Wong points out, is at the state level, where, thanks to years of investments by the Koch network and others—while progressives, only now playing catch-up, were focused elsewhere—the conservative-right control of state offices is at its greatest point since 1928.

Citing Bernie Sanders, Abrams concedes that money matters enormously in political campaigns, and that the vast income disparity in the nation inevitably favors the wealthy. But his response expects progressives to counter what the 1920s ACLU rightly called “class government” on a wildly skewed playing field: “Without limiting First Amendment rights, Congress and state legislatures may adopt the widest range of legislation to deal with income inequality ranging from higher taxes on the wealthy to higher minimum wages for the least prosperous. Problems of low voter turnout might be dealt with by legislative measures aimed at making it easier to vote….” That sounds nice, but it ignores the fact that money isn’t only thrown around just in elections, but in lobbying, too—according to Stein and Wong, since 2005, over three-quarters of all the money for federal lobbying has been spent on behalf of conservative causes. There’s a reason why the right spends so much money on state elections and lobbying: Its priority is to preserve its skewed advantage through gerrymandering and voter-suppression laws. When local governments, usually much more blue than states as a whole, dare to pass a minimum-wage, tax, or environmental law, state legislatures often have moved to override them. Justifying unregulated campaign and lobbying spending as free speech undermines the capacity of many to control their own government and has contributed mightily to the revulsion at a “rigged” system that Donald Trump was able to exploit in his campaign.

Abrams does a good job of channeling the brain of the First Amendment. But its soul—the passionate, messy business of using its guarantees to forge a more just world—is what is missing from these pages. It’s up to those in the coming generation to breathe some new life into it.

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