Commentary: Freedom of Speech Is Shifting, We Are Caught Right in the Middle of That Shift

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By David M. Greenwald
Executive Editor

As I have been noting in comments over the last few weeks, the landscape on free speech is shifting.  Frankly, it has been shifting for a long time.  In 2017, I gave a series of lectures at UC Davis on free speech in the wake of the shut down of Milo Yiannopoulos.  If anything the atmosphere has been even more charged recently, with confrontations over a number of far-right speakers.

While some have been quick to jump to the conclusion that this is some sort of liberal hypocrisy, the reality is that the political landscape has shifted in recent years.

This isn’t really that new a phenomenon.  A poll from 2015 from the Pew Research Center found that around 40 percent of millennials believed government should be able to regulate offensive speech.

That number dropped pretty quickly by age— “Only 27 percent of Gen-Xers (ages 35 to 50), 20 percent of baby boomers (ages 51 to 69) and 12 percent of the silent generation (ages 70 to 87) share that opinion.”

This week, Austin Sarat in an op-ed in The Hill noted the strange alignment between the ACLU and NRA on a free speech issue.

Sarat, a professor of Jurisprudence and Political Science at Amherst College, noted that there has been a shift in the “bright lines” that at one point “divided defenders of free speech from its critics.”

He argues those lines have “in recent years become blurry as other values come into focus and as political alignments have shifted.”

He writes, “Liberals, once the most ardent defenders of free speech, now often favor restrictions on speech that denigrates or damages marginalized groups, in order to achieve their goal of promoting equality.”

On the other hand, conservatives, “long known for their willingness to limit or regulate offense speech, now argue for an almost unregulated marketplace of ideas.”

Sarat notes, “Our country is divided over the question of whether we should evaluate free speech claims in light of the messages or causes that speech seeks to advance. Favored speech becomes the stand in for free speech.”

One of the problems is that the issues have shifted.

Remember where free speech issues first arose—protests to World War I.

The Supreme Court upheld the conviction of Schenck under the Espionage Act of 1917 for criticizing the draft.  The Supreme Court led by Justice Oliver Wendell Holmes, who would eventually become a noted free speech advocate (but not yet), reached the conclusion that there was no First Amendment violation and that courts owed greater deference to the government during wartime, even when constitutional rights were at stake.

It was in this opinion that Holmes, for the first time, articulated the “clear and present danger test,” arguing that the First Amendment does not protect speech that creates a clear and present danger of a significant evil that Congress has power to prevent.

But Holmes’ thinking on this would change rather rapidly in the post-World War I environment where the red scare presented a threat to academic freedom among his close colleagues and associates on college campuses.

In the book The Great Dissent by Thomas Healy, the writer chronicles how Holmes changed his mind on the issue of free speech and became a free speech advocate to establish our modern understanding of the First Amendment.

While Holmes continued to advocate for the clear and present danger test, as in Abrams (1919) he argued that congressional restraints on speech were permissible only when speech constituted a “present danger of immediate evil or an intent to bring it about.”

In Gitlow, he joined with Brandeis in a dissent to argue that the words at issue in that case “posed no clear and present danger of inciting violent action.”

What has changed now?  Well, in the World War I and red scare free speech cases, the issue was one of freedom to protest against war.

Today what we are seeing is the tables starting to flip as the young left, in particular, is recognizing the need to protect vulnerable communities from hate as a means to produce a more equitable society.

Part of the issue here is that there probably never has been a true commitment—at least by most—to free speech as an end rather than as a means.

Dating back thirty years was the seminal work by Nat Hentoff, Free Speech for Me – But Not For Thee.  He clearly noted that it was both the American left and right that are relentlessly censoring each other.

Hentoff, for instance, cited Clark Kerr, at one point the president of the University of California, “The purpose of a university is to make students safe for ideas—not ideas safe for students.”

But, “More recently, ‘thought police’ operating on all levels of education and from all parts of the political spectrum have taken the opposite tack.”

Even now the line isn’t nearly that clear.  Sure, there is an increasing tendency for the right to be speaking out in favor of free speech, and yet as we know from recent episodes of book banning, the vast majority is being pushed by the right—not the left.

As ABC News noted in January, “While activists across the political spectrum have sought to restrict or protest some forms of literature, the vast majority of book challenges are from conservative-leaning groups, researchers say. Only a handful of efforts have also come from liberal sources, mainly targeting books with racist or offensive language.”

Nevertheless, I think we are in the middle of a seismic shift on this issue, and the next several years will see how it sorts out.

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