World·Analysis

Free speech on the run, even in the home of the brave

Constitutionally protected speech, no matter how offensive, is a glorious and uniquely American invention, Neil Macdonald writes. But these days it seems to be under attack from thought police everywhere, even in the U.S.

You can offend, sure, and the courts will protect you, but there are consequences

Then and now. Students at the University of California in Berkeley, where the free speech movement on campus began just over 50 years ago, sit in front of a commemorative mural at the Free Speech Movement Cafe. (The Associated Press)

Legally protected speech, no matter how offensive, is a glorious and uniquely American invention, a gift to the marketplace of ideas and an example to the world.

Coming from a journalist — me — that statement should not be even mildly controversial.

Increasingly, though, such a statement is being reviled even here in the U.S. as archaic, revanchist, bigoted, paternalistic, reactionary, sexist, probably tinged with racism or just out of tune with modern thought.

That would be no surprise in Canada or European nations where the impulse to regulate real or imagined insult, using hate speech laws, human rights commissions and the like, can trump free speech.

But in today's America, the domain of constitutionally protected expression, anti-free-speech forces are stepping up co-ordinated attacks.

Most of these freelance censors seem to be politically left of centre, and range from the "social justice warriors" to — and I'm ashamed to say this — many in the mainstream media, which once celebrated the right to offend established norms and ideas.

There are bags of examples in a new book by Kirsten Powers, the columnist and longtime Democratic Party operative, titled The Silencing: How the Left is Killing Free Speech.

Powers argues that left-of-centre activists (she calls them the "illiberal left") are leading a "forced march towards conformity," striving to control and punish anyone who disagrees with the groupthink in which they wallow with such certainty.

The academic and writer Fredrik DeBoer has called it the "We Are All Already Decided" phenomenon.

Student coddling

In her book, Powers leans heavily on the astringently sophomoric attempts on university campuses to infantilize and coddle students.

She details the hectoring and chilling by student and activist groups of any discussion that commits the sin of ableism, micro-aggression, patriarchal condescension, trans-phobia, homophobia, flaunting of any privilege but especially white privilege, perceived misogyny, supposed rape denial, Islamophobia (and to a lesser extent, anti-Semitism), and various other thought-sins generally grouped under the umbrella of hate speech.

In America, unlike Canada, hate speech is just a political slogan, not a legal term.

But in America, the trend of applying "trigger/content" warnings about emotionally disturbing material to the works of many modern and ancient literary canons also seems more widespread.

In the private sector, employers of offenders are attacked, and firings demanded.

Shaming is rained down via social media.

The hunt for exceptions

Meanwhile, journalists — most of whom would fecklessly tell you they're free-speechers — are constantly trying to invent exceptions to protected speech.

Case in point: Pamela Geller, the anti-Muslim activist, wound up being blamed for an attack by two extremist Muslim gunmen on one of her nasty events in Texas recently because she crossed some imaginary free-speech line.

Cartoonist Bosh Fawstin, left, is presented with a cheque by controversial Dutch politician Geert Wilders and free speech activist Pamela Geller during the American Freedom Defence Initiative program in Texas earlier this month, just moments before shots were fired. (The Associated Press)

In the minds of several media analysts, she should somehow have been stifled. (Of course, had Geller been sexually assaulted and the same logic applied, it would be denounced as "survivor blaming.")

The bigger example: the cartoonists at Charlie Hebdo who were blamed for inciting the massacre at their magazine.

Most big media organizations, some undoubtedly cowed by the hate-speech police, refused even to republish the magazine's answer, a depiction of Muhammad weeping, on the grounds that it might offend Muslims.

Eric Posner summed up this new journalistic let's-have-less-free-speech ethos last week in the online magazine Slate: "Americans need to learn that the rest of the world — and not just Muslims — see no sense in the First Amendment," he wrote, finger wagging.

America's right wing can be censorious, too, especially when someone disdains the military it so deeply cherishes.

Suggest publicly that a soldier killed in the dust of Iraq died neither for his country nor for freedom and watch the reaction.

It doesn't help that after years of hearing about terror, terror, terror, the American public is increasingly telling pollsters that there's too much free speech here.

What Kirsten Powers glosses over, though, is that not even America's guarantee of free speech safeguards anyone from consequences like shaming or termination of employment, or even expulsion from a (private) school or university.

In fact, such retribution is itself protected expression.

The right to be offensive

In the American context/gift to the world, free speech is uniquely about protecting speech from the dead hand of the state.

And U.S. courts continue to do a fine job of shielding citizens from their own governments.

Jeff Dion, of the National Centre for Victims of Crime, speaks outside the U.S. Supreme Court, which is wrestling with whether threatening rap lyrics posted by an estranged spouse on Facebook deserve First Amendment protection. (The Associated Press)

There are very few exceptions to protected speech here (actual threats of violence, direct incitement to violence, etc.) and the courts have resisted expanding them.

Ken White, a Los-Angeles based free-speech advocate and lawyer, dove into this on his blog, Popehat, recently.

Consistently, the courts here have rejected offensiveness per se as grounds for challenges to the U.S. First Amendment, he says.

The best example is the odious leadership and congregation of the Westboro Baptist Church, the crackpots who show up at solemn events like military funerals with placards announcing "God Hates Fags."

The Supreme Court found 8-to-1 that their homophobic craziness is protected. Opponents are free to line up across the street and yell "God Loves Queer People."

Hate speech laws do not exist here in the U.S., the logic being that you never know when the government might decide you're a hater, and go after you.

Being a journalist, I'm all for the American approach.

I will miss it when I return to Canada, where the government suppresses communication by its bureaucrats, declares "zero tolerance" for certain types of expression it considers offensive, points to expanded hate-speech restrictions in the Criminal Code, and has just passed what it calls an anti-terror law that looks to criminalize certain forms of speech.

Maybe I've been in the U.S. too long, but my friends on the left probably need to keep in mind that free speech is worthless if it doesn't protect offensive speech.

But then I suppose I'm revanchist and patriarchal and reactionary and just out of tune with what passes for modern thought. 

ABOUT THE AUTHOR

Neil Macdonald is a former foreign correspondent and columnist for CBC News who has also worked in newspapers. He speaks English and French fluently, as well as some Arabic.

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