Freedom of speech is easily the most important of the freedoms guaranteed by the Constitution, the most important freedom in any society. If the people can say and write what they please, a government will have a difficult time becoming repressive, at least against the will of the people. (There are clearly many who do not care what the government is doing so long as life is comfortable – five thousand years of civilization has not been so much a march towards greater freedom as towards greater comfort.) Free expression is at the same time a fragile entity, easily damaged by political, economic and even social concerns. Even liberal governments and politicians are very uncomfortable with free speech. They do not like to be questioned or criticized or circumvented, and they certainly do not like to be made fun of.
The greatest threat to free expression inevitably appears when a society’s security is being threatened or perceived to be threatened. Security is far and away the most common justification for enhancing the power of the government and at the same time checking the free speech that might be employed to expose and oppose the state’s actions. Threats to the country are also the strongest motivation for the people themselves to do the government’s work and curtail the speech of those with unpopular and thus unpatriotic points of view. Any American publically suggesting in 1942 that the Japanese were not entirely evil and had some reason to attack the US would immediately receive a personal and violent lesson in the limits of expression during wartime. The popular protests against the war in Vietnam were tolerated in part because the state failed to demonstrate that there was in fact a serious threat to America. It also allowed its credibility to be shattered by a news media permitted virtually unlimited access to the war, a situation that was corrected during the war against Iraq, when “embedded” reporters were fed carefully crafted reports.
The popular repression of speech that followed the 9/11 attack was particularly virulent, undoubtedly because the United States itself had been assaulted and we were suddenly at war with shadowy figures who might be lurking right around the corner. Any criticism of government policies constituted a lack of patriotism, and even the barest suggestion that the terrorists had anything to do with our policy in the Middle East or that they were sacrificing their lives for a principle, benighted though it was, was akin to treason. An admittedly insensitive crack about blowing up the Pentagon resulted in death threats and demands from individuals and state politicians for my dismissal from the university. Meanwhile, the administration of the university, a place that should be a bastion of free speech, while justifiably criticizing my remark, refused to defend my right to make it and treated me as road kill, requesting my retirement. This attitude is of course that accepted by government, and in response to my comment the presidential press secretary publically stated that “Americans need to be careful about what they say!” This is an outrageous idea and represents the sort of governmental intimidation that was subsequently built into the Patriot Act.
A more insidious threat to free speech comes with our attempts at social engineering, a questionable enterprise. The unvoiced premise lurking behind much of this thinking is that freedom of expression means freedom of popular expression or decent expression or socially useful expression, all things that hardly need Constitutional protection. So we now talk about “hate speech” and “fighting words,” that is, speech that is not popular, decent or socially useful but in fact constitutes a threat to social harmony and public safety. This is all pernicious nonsense. The only valid parameter for limiting speech is whether or not it is likely to cause immediate physical danger. Inciting a crowd to riot would fall into this category, but hate speech that might indirectly lead to some problem in the future does not. In the second case who would decide when offensive expression is offensive enough to be considered a danger to society? Some government body? Popular vote? Do this and freedom of speech begins to crumble. Or the “fighting words” notion, which maintains one cannot use speech that is so offensive to an individual that he assaults the speaker. More nonsense. You may be stupid for saying such provocative things, but speech can never justify doing violence to someone.
People seem to have a difficult time recognizing the burden of free expression: tolerance. Your right to say what you please entails tolerating what others choose to say, no matter how disgusting you find it. In fact, your duty as a citizen is to defend that person’s right to spout hate or nonsense. The grandest moment of the ACLU was defending the right of American Nazis to march through a Jewish neighborhood in Skokie, a principled act that led to the resignation of many members. These hypocrites were in effect saying “We believe in free speech, but…,” a statement that guarantees that the speaker is ready to limit that free speech. Many appear to believe there is a clause in the Constitution that guarantees the right to get through life without ever being offended.
Truth is clearly not a necessary component of free expression. If it were, politicians and advertisers would be in trouble. Apart from the fact that it is often difficult to define precisely what is true and what is not, speaking nonsense is certainly protected by the right of free speech. There is, however, a specific case of untrue speech being prohibited. In Germany and Austria denying the Holocaust is a criminal offense, which is an outrageous abridgement of free expression, designed, presumably, to hinder the emergence of obnoxious and threatening groups. While it is clear why this particular topic is a sensitive one in these countries, this is a dangerous practice. Who is to decide what bits of history may not be denied or distorted? When is an event in the past so horrible that one is punished for saying it did not happen? Why not outlaw all speech which appears stupid or ignorant?
In Israel it is now illegal to publically support any agency or NGO engaged in boycotting Israeli products or services as a protest against the country’s policies regarding the Palestinians. People who do so are “delegitimizing” Israel, an assertion that now takes a place alongside “anti-Semitism” as a standard reply to critics of Israel. It may seem a small thing in a society that enjoys wide freedom of speech, but while an Israeli citizen is free to say all sorts of nasty things about his country, he cannot support or approve any boycott directed against Israel, which is to say, there is one traditional form of protest that is denied to him. Asserting that it is criminal to “delegitimize” the state comes seriously close to punishing people who insult the state.
And now this Israeli – or at least Likud – assault on free speech in the interest of politics may be coming to America. Opposing Israeli policies in Palestine, the Boycott, Divestment and Sanctions movement has initiated an academic boycott of Israeli institutions and universities, which has now elicited a response from Israel’s many friends in the Congress. The proposed Protect Academic Freedom Act provides that any academic institution that participates in the BDS movement will be denied federal funds under the Higher Education Act. This is bad enough, but the definition of “participate” is breathtaking: “The Secretary shall consider an institution of higher education to be participating in a boycott of Israeli academic institutions or scholars if the institution, any significant part of the institution, or any organization significantly funded by the institution adopts a policy or resolution, issues a statement, or otherwise formally establishes the restriction of discourse, cooperation, exchange, or any other involvement with academic institutions or scholars on the basis of the connection of such institutions or such scholars to the state of Israel.” Whatever one thinks of the BDS movement and the academic boycott, this ironically named bill would obviously put limits on free speech on the American university campus.
The man who introduced this constitutionally questionable act, Rep. Peter Roskam, explained: “These organizations are clearly free to do what they want to do under the First Amendment, but the American taxpayer doesn’t have to subsidize it. The American taxpayer doesn’t have to be complicit in it. And the American taxpayer doesn’t have to play any part in it.” (A perfect of example of “I believe in free speech, but…”) So, federal funding of academic institutions that merely fund an organization that in turn makes a statement against a foreign country is somehow an unreasonable burden for American taxpayers to bear? And only in the case of this one particular country? The Congressman does not explain why it is on the other hand fine that the American taxpayer has to be complicit in and play a part in sending $3 billion dollars a year to a country that is universally recognized to be blatantly violating international covenants the civilized world is pledged to uphold. How far is this from denying federal aid to a university that allows its faculty to publically support a boycott targeting American policy? Well, probably very far, since the Congress often seems more concerned about Israel than the United States.
Freedom of speech is the most fragile of our freedoms, since it is so easy to slowly pick away at it, to eliminate free expression in this or that seemingly small area in the interest of social and political welfare. And most Americans will simply not care because it does not affect them.
A final historical observation concerning free expression. While Athens was engaged in what would be a life and death struggle against Sparta, the Peloponnesian War (431-404 BC), the comic play-write Aristophanes was producing very successful satires of Athenian society and policy. Not only did he constantly lampoon the leaders of Athens, but he openly attacked the Athenian empire and the war itself, and he did this in a state that lacked any constitutional guarantees whatsoever, a state where the people in their assembly could take virtually any action they pleased. It is hard to find a greater commitment to free speech.