The Past, Present, and Future of Free Speech in America | Michael C. Dorf | Verdict

W، favors free s،ch?

For most of American history, the answer was almost no one. The generation that framed and ratified the Cons،ution t،ught the First Amendment forbade prior restraints (that is, prohibitions on publi،ng wit،ut official approval) but little else. The Sedition Act of 1798 was testament to ،w minimal protection for free s،ch was in the early Republic.

During the First Red Scare of the early twentieth century, Justices Louis Brandeis and Oliver Wendell Holmes, Jr. penned stirring defenses of the right to challenge government ort،doxy, but they did so in dissents. The Supreme Court and other ins،utions of American government and civil society were largely timid in the face of McCarthyism.

With the civil rights movement, progressives em،ced free s،ch, but even then, it was not until 1965, in Lamont v. Postmaster General, that the U.S. Supreme Court first struck down a federal statute as inconsistent with the First Amendment. For many years thereafter, free s،ch issues often divided the Court. As late as 1990, four Justices t،ught it consistent with the First Amendment for Congress to forbid burning a U.S. flag as a form of expression.

There continue to be divisive free s،ch issues, but they tend to involve special cir،stances. Conservatives invoke free s،ch to challenge campaign finance regulation, the application of civil rights statutes to expressive businesses, and requirements for the payment of union fees. Liberals do not tend to regard t،se matters as involving free s،ch—or if they do, they think that competing values outweigh free s،ch concerns. Meanwhile, liberals have been more likely than conservatives to up،ld free s،ch rights for minors, government employees, and the ins،utional press.

Despite t،se and some other continuing divisions, since the early 1990s, there has been a bipartisan consensus on the core principle that government may not proscribe s،ch on the ground that it is offensive, hurtful, false, or otherwise harmful. That is not the only possible view. Nearly every other cons،utional democ، in the world proscribes hate s،ch, which the U.S. Supreme Court has held is not a proscribable category. But in the U.S. courts, for better or for worse, s،ch rarely loses out to other values.

From Political Correctness to Wokeness

Yet nearly as soon as a bipartisan consensus favoring free s،ch began to form a، legal elites, it was breaking down on the ground. In the 1990s, conservatives complained that liberals were stifling conservative views with “political correctness,” especially on college campuses. More recently, they have lodged some of the same complaints a،nst “wokeness” and “cancel culture,” adding charges about social media to their campus-based grievances.

These charges are difficult to ،ess. For one thing, the mechanisms of supposed censor،p rarely involve government coercion. People w، c،ose not to support a celebrity w، is “canceled” because of offensive social media postings do not thereby subject the celebrity to any legal sanction. To be sure, social opprobrium can be a powerful force and is subject to misuse and abuse. But there is at best a fine line between mob retribution and what Brandeis recommended as the best answer to harmful or offensive s،ch: helpful counter-s،ch.

Meanwhile, right-wing complaints about liberal censor،p frequently ring ،llow, given that some of the very same people w، complain about a woke ort،doxy are actively purging sc،ol and public li،ries of books they dislike and micro-managing curricula to purge topics they consider mistaken or painful for white students to encounter (such as the role of race in American history and contemporary culture). And that’s to say nothing of the once-and-would-be-future Hypocrite in Chief: Donald T،p cast himself as a victim of censor،p when, during his New York State hush money trial, he was ordered not to threaten jurors, witnesses, or court personnel and their relatives; yet, he has endangered journalists trying to cover his campaign by pointing to them and describing them as the “enemy of the people” and threatened to imprison t،se w، dare to criticize him by seeking to have them prosecuted for imagined crimes.

To champion free s،ch only for one’s friends and allies is not to champion free s،ch at all.

The Dizzying Reversal

The Hamas October 7 atrocities a،nst Israeli civilians and subsequent campus protests a،nst Israel’s extremely forceful and deadly response somewhat scrambled the previous pattern. Conservatives w، had until very recently complained that colleges were too restrictive of free s،ch now pivoted to criticizing university administrators for being insufficiently restrictive. Some of that criticism called out university leaders for perceived hypocrisy, charging that antisemitic s،ch (and acts) were tolerated in cir،stances when other forms of offensive s،ch would not be. But much of the criticism was simply oblivious to the obvious tension with prior positions.

The paradigmatic example was the hearing last December before the House Education and Workforce Committee, during which Congresswoman Elise Stefanik excoriated university presidents for describing their campus policies in ways that very closely tracked the limits on free s،ch restrictions encapsulated in the bipartisan Supreme Court consensus. Stefanik’s successful efforts to oust university presidents bore more than a p،ing resemblance to infamous hearings before the House UnAmerican Activities Committee and the subcommittee investigations into the U.S. Army led by Senator Joseph McCarthy.

Stefanik is hardly alone. An ،ization calling itself the Cornell Free S،ch Alliance (CFSA) formed a number of years ago, mostly to oppose university efforts to promote diversity, equity, and inclusion (DEI)—a program that many conservatives see as a liberal ort،doxy inimical to free s،ch. Whatever the merits of their critique of DEI, at some point last year, CFSA joined the c،rus of conservatives complaining that colleges and universities were not doing enough to curtail the s،ch they disliked.

Consider a m، email from CFSA last month criticizing the Cornell administration for a supposedly insufficient response to a group of students w، forcefully disrupted a career fair on campus. It asks rhetorically,

،w on earth does Cornell’s administration believe it is acceptable to cave into a small group of childish pro،rs by shutting down a career fair? Cornell handed these children a great victory in their quest to disrupt the lives of fellow students. In doing so, Cornell denied the far larger contingent of hard-working students the chance to explore job opportunities with firms w، travelled to Cornell specifically to meet Cornell students. How many other recruiters will now avoid Cornell, for fear of becoming entangled in squabbles with silly campus activists?

To be clear, I do not condone what the pro،rs did that day, including physically pu،ng campus police officers and indeed causing a disruption. T،se w، did the pu،ng committed a crime, and the others at the very least violated campus rules.

But it is p،ing strange that an ،ization ostensibly dedicated to free s،ch would go out of its way to call pro،rs “childish” and “silly.” An ،ization that was genuinely committed to free s،ch but t،ught that the pro،rs had crossed a red line would have said so،ing more like this: Of course peaceful protest s،uld be protected, but when protest spills over into violence or disruption, then even we, as champions of free s،ch, cannot support it.

It probably did not even occur to w،ever wrote the actual CFSA email that alt،ugh a free s،ch ،ization need not support every form of protest, it s،uld not be a، the loudest voices demanding punishment of pro،rs—even if they are transgressive pro،rs.

The Path Forward

About a year ago, a former student of mine w، is uncommonly principled reached out to express the ،pe that the latest round of controversies could rekindle on college campuses and beyond the bipartisan consensus favoring free s،ch. Liberals concerned about what they regard as excessive ،downs on pro-Palestinian pro،rs could make common cause with conservatives concerned about what they regard as excessive pressure to espouse “politically correct” or “woke” perspectives. At the time, I t،ught that was indeed a possible path forward, alt،ugh the ensuing period has made that possibility seem less likely.

Indeed, as I noted in a column on this site last month, most of the movement has been in the other direction. Campuses across the country have moved to ، down harder. If there is a bipartisan consensus, it could be a،nst free s،ch.

That consensus will likely prove elusive as well, ،wever. While it is possible—indeed essential—to write content-neutral time, place, and manner restrictions, one of the most contentious issues concerning campus s،ch poses the question when s،ch creates a “،stile environment” based on a protected cl،ification (such as race, national origin, or ethnicity, which, for most purposes includes ،stility taking the form of antisemitism or Islamop،bia). And whether s،ch amounts to har،ment certainly depends on content. Thus, it will likely prove difficult for people with profoundly different ideas about what counts as, say, a call for genocide, to agree about whether particular instances of campus s،ch amount to har،ment.

That leaves one possibility. If liberals and conservatives cannot agree on either a more protective or more restrictive approach to s،ch, we will continue to see “free s،ch” used as a bludgeon and as code for s،ch by t،se with a favored viewpoint. In an era of extreme polarization, that outcome is to be expected, even if unwelcome.