Where the Battle Over Free Speech Is Leading Us
When we think of the history of free-speech rights, we tend to think of the Anglo-American legal tradition. A virtue of Dabhoiwala’s book is that it is transnational, and there are discussions of free-speech traditions less familiar to American readers. The first free-speech law, for example, was enacted in Sweden, in 1766.
The point Dabhoiwala wants to make is that the Anglo-American concept is not universal. On the contrary, he says, “America is now the only country in the world where even local ordinances against ‘hate speech’ are treated as presumptively unconstitutional.” First Amendment jurisprudence is absolutist and libertarian. Other nations have speech rights, but they are qualified. Hate speech can be prosecuted in the United Kingdom.
For a historian, Dabhoiwala is rather judgy. He calls free speech “a kind of secular religion, with its own shifting dogmas and hagiography,” an “inherently unstable fiction,” and “a contrived, invented concept.” Of course, all our concepts are invented. They are tools for dealing with the world, which happens to include a lot of other human beings, many of whom, sadly, don’t agree with us.
“The creation and interpretation of rules about ‘free speech,’ ” he says, “is a perennially mutable and politicized process: freedom is never equally distributed.” And he shows that, ever since the idea of free-speech rights arose in eighteenth-century Europe, the concept has been, as he puts it, racialized and gendered. Freedom of expression, like, to a large extent, the franchise, was understood to be a right enjoyed by white men. Even John Stuart Mill, the model nineteenth-century liberal and a feminist, did not think that Indians in British India were ready for free speech. In other words, free-speech rights—like all rights, really—reflect, and therefore can be enlisted to perpetuate, existing power relations.
But we don’t think the right to vote is suspect because the franchise was once restricted. Those restrictions may be shocking to twenty-first-century sensibilities, but aren’t they what we should expect? In a patriarchal and highly class- and race-stratified society like Mill’s England, it is not surprising to find legal rights reproducing those inequities.
We are in a different place today, and one of the things that make us feel we are is the expansion of First Amendment freedoms throughout the twentieth century, beginning in 1919 with the dissents of Justices Holmes and Louis Brandeis, and then in Court rulings in the nineteen-fifties and sixties that protected not only political speech but artistic expression. Yet Dabhoiwala thinks that the trend is all in the wrong direction. He says that, since the sixties, “American free-speech jurisprudence has gradually abandoned any conception of the common good, beyond its abstract obeisance to ‘free debate’ as the highest ideal.”
The right way to determine what speech should be tolerated, he says, is to give up the “dubious distinction” between words and actions. “Their supposedly different potency,” he maintains, “is just a convenient myth.” We should regulate speech in the same way we regulate behavior. It is “perfectly reasonable to oppose utterances that you believe to be seriously harmful,” Dabhoiwala says, “and to argue that these shouldn’t qualify as ‘free speech.’ ”
Which is exactly what Trump argues. I hope that he has given Dabhoiwala second thoughts. When academics tried to stigmatize certain terms and beliefs, as they did at Princeton, they forgot the first rule of free speech: the postman always rings twice. Today’s policed are tomorrow’s policemen.
If the Administration’s actions are so blatantly unlawful, why does everyone seem to be caving? Some of it is just cost-benefit analysis. Paramount, which owned CBS, wanted to merge with Skydance Media, a transaction that required government approval. The company calculated that it was not worth jeopardizing the deal over a news program, which is a tiny piece of its empire. Jimmy Kimmel’s show was suspended after Nexstar, which owns some thirty ABC affiliate stations, put pressure on Disney, which owns ABC. Nexstar intends to buy a competitor, Tegna, which owns thirteen ABC affiliates, and the transaction needs F.C.C. approval. (The following week, after a “thoughtful conversation” with Kimmel, ABC reinstated the show, but Nexstar and Sinclair said that their affiliates would not air it.)
Government agencies can be challenged in court, and some of those challenges have succeeded at the appellate level. But the buck has generally stopped at the Supreme Court. For some whom the government now casts as enemies in the free-speech wars, that’s a worry. Universities that shut down or rename their diversity offices are not merely trying to appease the President. They anticipate that the Court will back government agencies that interpret “diversity” as an alibi for impermissible racial classification, in violation of the equal-protection clause and Title VI. Professors who complain that their schools are “caving” when they drop the term “diversity” should know this. But university presidents can’t tell them the reason they are renaming diversity offices, because they would basically be telling the Court that they’re cheating and are just racially classifying students under a different rubric. So there is a lot of crosstalk.
In the case of the attacks on the First Amendment, one big concern (unmentioned by Eisgruber) is the future of Sullivan. Members of the Court, specifically Clarence Thomas and Neil Gorsuch, have indicated an interest in overturning that holding, thereby reinstating a lower bar for libel suits by public figures by removing the “actual malice” requirement. There is little reason to assume that, given the right occasion, this Court will not overrule Sullivan, handing Trump another weapon in his war against free speech. Of course, if the law were to change, it might not be a total win for him. After all, no one is more reckless with the truth than Trump. He could be sued almost every time he opens his mouth. ♦
