How the Left Forgot About Free Speech
We Have Unlearned the Dangers of Censorship
Some things concentrate the mind. In this case, the fact that it appears that I am being shadow-banned on Twitter (don’t come at me with the “real” definition of “shadow-banned”; I mean my tweets have been de-indexed and made invisible to many Twitter users) has made me more cognizant about online discourse-policing and censorship. (To be clear, whatever Twitter is doing to my account isn’t really “censorship”. But it nonetheless makes me think more about the subject.)
I grew up in a household that cared about civil liberties, and even worked for the ACLU of Southern California for a time (and thereafter represented it in a major First Amendment case before the California Supreme Court). So I am well-versed in the history of censorship and the arguments against it. These arguments and this history used to be part of the institutional knowledge of the left because it was the left that was so often the target of censors, especially if you define the “left” broadly to include not only the political left, but unions, authors, pornographers, strippers, and other groups the left cared about and defended.
The political right, in contrast, discovered the First Amendment much later, and even then, at least some factions only discovered it imperfectly. Back in the day, the right wing loved the censor- passionate and committed right wingers controlled censorship boards and government agencies that targeted speech, as well as state and federal law enforcement. And they had much of the public on their side- a lot of the speech that was the target of the censors was unpopular, whether it was sexually themed speech labeled “obscenity”, flag and draft card burners, or the speech of American Communists who were prosecuted under the Smith Act. Conservatives such as William F. Buckley expressed open disdain for the notion that in a civilized society, citizens should be able to say what they want even if it offended the community.
As I said, conservatives have since discovered the First Amendment, somewhat imperfectly, as liberals and the left have taken up censorship. The right has rebelled against attempts to regulate hate speech, has become fearful of attempts to crack down on homophobic and transphobic expression (especially by Christian speakers), and has resisted attempts to enshrine “political correctness” in institutions public and private.
It’s worth noting that even though the political right has discovered free speech, many of them haven’t consistently embraced it. This makes the right’s position on free speech now very different than the traditional left position. The left prided itself, in the past, on defending the free speech of conservatives. Most famously, the ACLU defended the Nazis’ right to march in Skokie Illinois. But it went beyond the one famous case- ACLU case dockets were filled with “non-left” cases; for instance, when I worked at the ACLU in Southern California, the organization litigated seeking an exemption from workplace sexual harassment rules so a firefighter could read Playboy magazine at work, a position that did not endear the organization with its ostensible feminist allies.
While some folks on the right have moderated their position at least with respect to historic free speech cases (e.g., some conservatives will admit that Eugene Debs shouldn’t have been imprisoned for opposing US entry into World War I, and that obscenity prosecutions of books like Ulysses went too far), it’s fairly rare even now to find righties who admit that the left was basically correct on the issue of free speech in toto, and there is still plenty of support on the right for such things as attempts to prevent expression of pro-trans, pro-gay, or critical race theory-influenced views in educational settings. There’s still a pro-censorship bias on the right, even if they now realize that censorship doesn’t look so great when the left controls the censors.
In any event, I set forth this history because I have a great concern that the left has forgotten everything it once understood about this issue. The left has won a great victory in that it has gotten control of a lot of institutions, from schools and colleges to entertainment to the scientific establishment to the tech industry to the executive branch of the federal government, and suddenly censorship looks very tempting. So I want to talk about some of the things that the left has lost sight of, that it once understood.
Just about any speech can be labeled “dangerous”.
The “danger” of speech is the oldest of free speech debates. It goes all the way back to the first attempts at government censorship, eons ago. And the problem has always been the same- it’s truly trivial to argue that whatever speech you don’t like to be “dangerous”. This is, for instance, how the left’s opposition to US entry into World War I led to prosecutions and, eventually, Eugene Debs’ 20 year prison sentence. The Wilson administration followed the earlier precedent established by Abraham Lincoln, who imprisoned everyone from draft resisters to pro-Confederate newspaper publishers. Lincoln does not get enough grief from historians for this, but you can see the problem in Wilson’s actions- obviously, opponents of US foreign policy absolutely could interfere with the prosecution of a war, by persuading other people to resist it. And that could lead to the deaths of American servicemembers as well as the failure to achieve US foreign policy goals.
Imagine, for instance, if Woodrow Wilson were President now, and he decided to prosecute people for publicly opposing Ukraine policy. It would be super-easy to argue that such opposition constituted a clear and present danger- after all, if those people persuaded their fellow Americans to resist US policy, it could result in cuts to military aid that might eventually lead to a battlefield defeat for the Ukrainians and untold number of Ukrainian deaths.
The point is, you can always reason this way, and it is for this reason that “persuading people to support things that I think are bad” is now generally considered not to be a compelling reason to suppress speech. In practice, this just reverts to "whoever controls an institution can silence its critics”, which, after all, is what Woodrow Wilson was really doing when his DOJ threw Eugene Debs in prison.
And obviously, this applies to speech controversies now. Lefties and liberals defending, for instance, the social media blackouts on Hunter Biden’s laptop or the COVID lab leak theories, or the various attempts by trans activists to prevent research that comes to conclusion they dislike from being published, should understand that censorship norms that look to “harmful” speech as the touchstone will almost always end up censoring stuff that they think should not be censored, simply because it is so easy for any putative censor to come up with a theory of “harm”. And of course, when conservatives get control of the censorship apparatus, they will attempt to run roughshod over left-wing speech based on asserted “harm”; that’s exactly what conservatives are seeking to do with respect to speech related to youth transitions, for instance.
Rules that apply to the other side will also apply to yours.
Much of the reason the left was so keen to protect speech broadly in the past (including even things like the Nazis marching in Skokie) is precisely that the left understood that the rules of speech would be generally applicable. They still are. For instance, the same hated rules about campaign finance and free speech (the Citizens United decision), which protect corporations who seek to express conservative messages about election campaign, also protect corporations, non-profits, the media, and other organizations who want to express liberal messages. Indeed, under Citizens United, the left has been able to spend enormous amounts of money and has successfully gotten its message on a range of issues it cares about.
This point is usually met by the kind of ignorant, smug snark that is so common in Internet discourse. “Of course”, some person who thinks he is smart but is actually dumb, will say, “conservative judges will never enforce the free speech right if a liberal is enforcing it; they will just decide every case in favor of the conservative side”. This is wrong though. Citizens United was decided 12 years ago, and conservatives have controlled the federal courts during that time. They would have had plenty of time to create a discriminatory First Amendment regime where only conservatives can take advantage of Citizens United, but they did not do so. In fact, it’s actually very hard to do this, because our legal system works on stare decisis and the rules that are announced in favor of conservatives can be applied by other courts in favor of liberals. Of course, most of the smart-asses who say otherwise, if they really believe what they are saying (as opposed to simply virtue signaling on the Internet), haven’t even given any thought to how the court system works and how it can’t actually be rigged to ensure rules are only ever applied in favor of conservatives.
The reality is a speech protective regime applies to both sides. So will a speech restrictive regime. Indeed, here’s an example I bet very few people have thought of- the First Amendment rights of students in educational institutions was a longtime liberal project. West Virginia v. Barnette, the foundational case, involved Jehovah’s Witnesses, a minority religion, refusing to salute the flag in school. Minority religions and refusal to salute the flag were both left-wing causes. The case that cemented the right is even more starkly left wing- Tinker v. Des Moines, involving students wearing black armbands in class to protest the Vietnam War.
The point is, imagine the courts had gone the other way, as Justice Thomas, a very conservative Justice, believes they should have to this day, and Justice Scalia, another conservative, endorsed wholeheartedly when he was alive. Imagine Barnette had reaffirmed the prior rule that religious minorities could be forced to salute the flag in school, and Tinker held that students had no free speech rights on school grounds. Where would so many of the conservative free speech claims these days be? Every conservative arguing the right to wear an anti-LGBT shirt in school is relying on Barnette and Tinker. The rules apply to everyone.
Hustler Magazine v. Falwell, discussed below, is another example of this. The Falwell case drew on previous free speech cases which upheld left-liberal free speech claims. The plaintiff in Falwell was a conservative, and the defendant was a pornographer. Nonetheless, stalwart conservative Supreme Court Justices such as Rehnquist and Scalia voted for the pornographer, because they didn’t see how a legal rule that allowed for Falwell to win would be workable in other cases. This is how the court system actually works.
So if we did decide to cut back on free speech, it would cut back on free speech for everyone. For instance, a rule that “hate speech” is unprotected would be make it lawful for conservative parts of the country to prohibit criticism of Christianity. Feminist anti-pornography ordinances have been deployed against lesbian bookstores. If the government has the power to pressure Twitter to censor conservative speech (a major theme of the recent “Twitter Files” exposes, the that same government, in Republican hands, could pressure social media to censor left-wing speech on issues such as youth transition and criticism of the police. If we decided to broaden the incitement exception to go after people who inspired January 6, expect the same rules to be deployed against Black Lives Matter protesters. Etc.
Emotional distress isn’t a workable or good standard for banning speech
An entire Substack post, if not an entire book, could be written about the ridiculous decision of left wing movements to equate physical harm and emotional insult as if they are the same thing. Suffice to say that whatever you say about that as epistemological approach, and whatever you say about its history and motivations, it absolutely does not work as a justification for suppressing speech.
Obviously, we rightly do not protect some highly outrageous, targeted speech. The torts of intentional infliction of emotional distress and sexual harassment allow victims of speech directed at them and so egregious as to be certain to cause distress in a reasonable person to recover money from their tortfeasors. But these torts are strictly limited for a reason. Anyone who thinks that emotional distress is a good principle for censors should take a look at the facts of Hustler Magazine v. Falwell, where a famous preacher trumped up a claim that he was emotionally hurt by a parody that appeared in a porn magazine. It is extremely easy to falsely claim emotional distress and very difficult to disprove such a claim (I doubt Jerry Falwell was really upset by Hustler’s parody). And even if Falwell was distressed, a rule that would allow people to sue for emotional distress when people publicly hurt their feelings is a rule that would allow powerful people to silence their critics, which is, of course, exactly what Falwell was trying to do.
Assertions of hurt feelings are behind a whole lot of cancel culture and campus political correctness. Professors and lecturers have been fired or forced out when students asserted their feelings were hurt. And again, the students could in fact be lying- if the world teaches you that it will act on your claims of emotional distress, you have every incentive to lie to get what you want.
And like so many of the other claims for left wing limits on free speech, emotional distress has been wielded by the right in the past and will again in the future. The art censorship controversies of the 1980’s are a good example of this- why were Serrano’s Piss Christ and Ofili’s The Holy Virgin Mary and Scorsese’s The Last Temptation of Christ subject to calls for censorship? Obviously because they offended certain sorts of Christian believers. Conservative Christians claimed they suffered emotional distress by artists they saw as mocking their religions, and called for censorship.
Indeed, the equation of emotional distress with actual violence may be the most dangerous of all the anti-free speech notions, because it can even lead to actual violence. The cases of Salman Rushdie and Charlie Hebdo show exactly what happen when people equate emotional distress with actual violence. If hurting your feelings is the same as violence, after all, a violent response can be easily justified, and has been.
Even anti-speech concepts grounded in leftist thought (such as anti-discrimination) can still be used by the right or against the left
I mentioned the lesbian bookstores earlier. Andrea Dworkin was one of the foremost feminist advocates against pornography. She helped write anti-pornography legislation that, rather than focusing on whether material was “obscene” (the traditional legal test that focused on decency and “community standards”), barred materials harmful to women. Canada was among the places where versions of Andrea Dworkin’s model law inspired legislation. And Canadian customs agents used the ordinance to— seize Andrea Dworkin’s books!
This is the Lesbian Bookstore Principle. Whatever censorship principle you develop will be potentially usable against speech you approve of. Why? Because, in general, “good” and “bad” speech use similar materials. Lesbian erotica depicts bodies, contains nudity, and explicitly discusses and depicts sexual contact, just like the most sexist hetero male-produced pornography does.
The Lesbian Bookstore Principle abounds. For instance, consider the recent efforts to make the n-word completely taboo in public discourse. Whatever one says about the advisability of this on a policy level, it absolutely will sweep within its prohibitions a ton of anti-racist material. Plenty of civil rights advocates used the n-word, for instance. And there is a long tradition of progressive literary works, from Huckleberry Finn to Blazing Saddles to rap music, which uses the word, sometimes quite often. The same rule that one might imagine restricting the KKK from putting out racist material could also obstruct the distribution of anti-racist material.
Free speech is often the most powerful weapon of the most powerless people
Here we get into what left wing theory gets wrong about free speech. It is fashionable for academics and other thinkers to dunk on free speech as if it is a right that only powerful people hold or can exercise. Freedom of the press, the old saying goes, only works if you own one.
But in fact, we have an entire history of free speech that disproves this. Most of the tangible gains of civil rights movements, movements whom lefty academics worship, have been the product of free speech. Martin Luther King led a March on Washington, and his movement held sit ins and marched across the bridge in Selma, Alabama. The anti-war left eventually stopped the Vietnam War with protest marches. The picket line has been a staple of union mobilization. The social acceptance of such things as gay rights and interracial marriage comes from long, arduous communications campaigns that successfully persuaded the American public.
Powerful people also speak, but they have other weapons. They have money, and influence, and connections. They control weapons and police forces and militaries. The powerless have speech. And free speech works. It delivers for powerless people. Allowing powerful people to also speak is a small price to pay for that.
There isn’t a hard public-private distinction when it comes to censorship
This is the forgotten lesson of McCarthyism. While there was an enormous public push against Communism and its advocates and adherents, there was also a private push. People who refused to rat out their friends were blacklisted from Hollywood. Private employers refused to hire people they suspected were Communists or had Communist associations. Lots of people, especially in the entertainment industry, became effectively unhireable. They lost their livelihoods.
The key point about this is the left reacted to this as they should have, as you might imagine left wingers would react to it- by pointing out that concentrations of private power in big business, corporations, and the rich could be just as dangerous as government power. Indeed, it’s quite amazing that the left has forgotten this. It clearly has though— nowadays lefties call for private corporations to engage in extensive censorship and blacklisting, and rely on the rote argument (formerly associated with the right wing) that there’s a formal difference between public and private power and that private businesses have the right to refuse service to whoever they want. That’s right, left wingers now recite the cant of the segregationists of the 1950’s and 1960’s.
This the most pure expression of the left dropping an argument because they now have power over a lot of corporations and want to wield that power. It’s not as though all the things Marxists said about agglomerations of corporate power suddenly disappeared when culturally left types got control of a lot of powerful corporations.
And here’s the thing- there’s no reason to think that the left will now control corporate America forevermore. Indeed, there’s no reason to think that even if the left does control corporate America for a long time to come, that this power will only be used against enemies of the left. Even right now, with liberal influence on corporations at an all-time high, one of the ways to get yourself in a lot of trouble in corporate America is to criticize China, where a lot of American corporations have a lot of money invested. Even a culturally left corporate America will never forget that the central imperative is to make money. And obviously, if they perceive that there is money to be made by catering to right wing sentiments (as they did during the McCarthy era and even thereafter when they caved to right wing pressure campaigns on various issues), they will cater to them.
The left should be distrustful of corporate power. Acceding to our new corporate overlords simply because they will do the left’s bidding on some cultural issues is selling out really cheap.
Conclusion
The upshot of all of this is simple: the old view of the left on free speech- the one that convinced the courts and the public, which was deployed to defend the rights of civil rights protesters and economic leftists and anti-war activists and gays and lesbians, but which carried the cost that occasionally Nazis could use it too- was the correct view. It was correct when the right disdained it; it is still correct now that the right took advantage of it. And social movements need institutional memory. They need to remember why they cared about things. The short term attractiveness of exercising power to silence one’s adversaries has to be weighed against the long term principle of why the concept of free speech was important. It’s perfectly clear which direction that points.