The Free Speech Wars: Has the First Amendment Outlived Its Usefulness?

protest, Berkeley, NAZI
Protest in Berkeley, California, August 27, 2017.Photo credit: Thomas Hawk / Flickr (CC BY-NC 2.0)
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The traditional American notion of almost absolute freedom of speech may have run its course.

Journalist and academic Damon Linker says some Americans may be having second thoughts about what we’ve come to accept as free speech. In this week’s WhoWhatWhy podcast, he talks to Jeff Schechtman about his recent analysis that found free speech is under siege from all sides.

Linker notes what’s happening on college campuses, where arguments over diversity are polarizing students and faculty, and, on the political right, where state power is being marshaled to suppress “unpatriotic” speech. The result, according to Linker, is a potential constriction of public dialogue and a clear decline in democratic values.

Civics classes once taught that untrammeled freedom of speech would allow the truth to triumph. But does this work when propaganda, multiplied many fold by social media, drowns out other voices in a blare of noise?

In his conversation with Schechtman, Linker digs deep into the many complexities of the issue and what the current situation portends for the future of democracy.

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Jeff Schechtman: Welcome to Radio WhoWhatWhy. I’m Jeff Schechtman. Once upon a time, freedom of speech was the bulwark of the American experiment. It was first among equals as a constitutional guarantee. Today, not so much. Under siege from both the left and the right, it is another one of those foundational ideas collapsing under the weight of polarization, political correctness, and lack of basic trust and understanding in our institutions.
Recently, my guest Damon Linker wrote an article that lays out the dynamics of the problem. Linker is a senior correspondent at and a consulting editor at the University of Pennsylvania Press. He’s taught Critical Writing at Penn and worked as a senior editor at Newsweek and The Daily Beast. He was a contributing editor at The New Republic and is the author of several books, essays and reviews. His recent article is “Is America Having Second Thoughts about Free Speech?” and it is my pleasure to welcome Damon Linker here to Radio WhoWhatWhy. Damon, thanks so much for joining us.
Damon Linker: Thanks for having me.
Jeff Schechtman: One of the things you talk about is that the traditional notion of kind of unfettered freedom of speech is under siege from the left, from the right and even from the center. Talk about that first.
Damon Linker: Well, I think it’s important to recognize that what we think of as a kind of absolute right to freedom of speech, is itself kind of one position in the liberal tradition, that there are other more complicated positions, and that we in this country have very much settled on the kind of absolute right to freedom of speech over the last about half-century. It was a battle to get that established in the Supreme Court, and we’re getting pushback now, as you say, from many directions.
Europe has its own version of people pushing back. Then we have ours on college campuses, and then from the right, as well from the Trump Administration. All of those non-absolute versions of freedom of speech always try to say, well, you can have freedom of speech, but within limits, but there are certain things you can’t say or shouldn’t be allowed to say. There is a fairly expansive list in different directions of what those things might be. All of them share the view that the right is not absolute.
Jeff Schechtman: One of the points you make is that these attacks on the traditional, American idea of freedom of speech are nothing new, that we’ve been here before.
Damon Linker: That’s right, and in fact the complication of the story even that you sketched very briefly there, is that in this country itself there have been debates about this. Until the middle decades of the 20th century, we had the First Amendment and its defense of a right to freedom of speech that was viewed by most people as compatible with having obscenity laws, with having, certainly at the state level, laws that very, very severely sometimes constricted freedom of speech and especially expression. This changed in the middle decades of the 20th century, but until then, it wasn’t the case. At the federal level, you often had appeals to, kind of, the “common good” or “clear and present danger to the national security of the United States” was often used to place limits on what could legally be said, even among journalists.
So, this has been a kind of ongoing battle, and about a half-century ago the more absolute construal of what freedom of speech is, won out. Now it’s kind of on the defensive again in a way that sort of mirrors the way things were about a century ago and back to the founding.
Jeff Schechtman: Is there a common thread though today in the things that have created this pushback that’s coming from so many different directions.
Damon Linker: Well, I see it as a part of this broader trend in our historical moment where the center is under siege by a kind of anti-liberal left and an anti-liberal right, so you have a kind of frustration about people and their political enemies and wanting to use the power of the state a little bit to hem them in. For instance, our president, Donald Trump, is very frustrated that the main-stream media is giving him negative press coverage, and so he bangs on in his Twitter account and in his public statements about fake news, and how it’s all nonsense, and we should loosen up our libel laws, which sounds very threatening.
I agree that it’s distressing for journalists to hear this, but it is true, for instance, in the UK they do have much looser libel laws, and there’s much less freedom of speech compared to the United States. No one thinks that the UK is a tyranny because of this, but it is a different tradition of liberal politics. And then from the left, you see a kind of opposite claim that essentially worries that, for instance, the rise of Donald Trump and the alt-right and so forth is an example of a kind of anti-democratic, anti-liberal movement. To fight it, we shouldn’t permit people from that point of view to have the freedom of speech, especially on places like college campuses where this is seen as a very significant threat. The final point is that that argument is heard in Europe even more wide-spread than it is here. There’s been a tradition ever since World War II of assuming that kind of far-right political opinions should be marginalized and even prevented from organizing in order to prevent a kind of replay of the 1930s and a kind of fascist movement taking power. So, you can see it again from many directions.
Jeff Schechtman: It’s ironic that from the same side that there is this pretty intense anti-European- ism, particularly from the right, that suddenly, with regard to the issue of free speech, there is an embracing almost of what Europe is doing.
Damon Linker: Yeah, it’s interesting. I mean, it is complicated for the right in our country because they actually feel a lot of affinity with the more extreme anti-liberal movements in, say, central Europe. So, things that are going on in the Czech Republic and Poland and Hungary and Austria and all of these places, you’ve had kind of right-wing populists take power in a way that some on the kind of Trumpous faction of the right in our country admire and sort of see as a model. But in Europe, those are the exact movements that kind of center-left and center-right are inclined to try and tamp down on, using restrictions on freedom of speech and organizing.
So for instance the Alternative for Deutschland or the Alternative for Germany Party in Germany is the most right-wing party to run seriously for office since World War II, and they won about 13% of the vote about six months ago. The whole government has been kind of stymied and polarized, paralyzed, for the last six months because the mainstream center, left and right parties refused to let that new right-wing party join the governing coalition. Their attitude is: “They are so extreme, we shouldn’t even permit them to have a share in power.”  They think that that will be better. The question is, does that really help or does it actually make it worse by denying them power, because then those right-wingers remain on the outside and get to organize their movement by saying, “See, those people won’t even let us have the slightest bit of power. We need to tear them down.” That’s kind of the dynamic there, and one worries about it happening here along those lines as well.
Jeff Schechtman: What are we seeing from the center-left in this country? There’s also pushback from there in terms of some of these issues.
Damon Linker: Well, yeah, ever since the election and Hillary Clinton’s win/defeat, where she won the popular vote by about three million and then lost in the electoral college, which is a very large margin to have that kind of upset. There’s a lot of bitterness on the center-left in this country and a lot of anger about the style of Republicanism that you’re seeing with Donald Trump. The claim that what motivated his voters and what got them to the polls, the reason why Clinton lost these three long-term Democratic states, Wisconsin, Pennsylvania and Michigan, is because there are all these racists there, and that Trump is a kind of racism catalyst, he’s leading a movement of white supremacy and all of these words, racist, racism, white supremacy or white supremacists are viewed by many on the center-left in this country as the equivalent of saying mass murderer or Nazi and therefore are viewed as kind of illegitimate and beyond the pale, they should be kind of shamed out of public life or excommunicated from civilized life.
It’s a kind of informal or de facto version of what I said the center-right and left do in Europe, basically say, if you hold these views of say, you want to cut legal immigration, then you pretty much, you’ve already outed yourself as a white supremacist or a racist, and you really shouldn’t even be granted a seat at the table when we debate public policy over things like immigration. That is moving in the direction of a kind of restriction on free speech.
We see it also with the religious right because the religious right, there are a lot of people who are conservative religious believers in this country who still don’t believe that same-sex marriage is legitimate. There’s been a move by the center-left to expand anti-discrimination law to cover that which would, in effect, deny certain federal grant money and protections to people who hold those more traditional views about sexual morality, so if you tell, say, a small, conservative, Christian college that if it doesn’t allow same-sex marriage couples of students to live in married housing, for instance, if they say that we can’t permit that, and then the federal government comes back and says okay, we’re going to deny you money for programs on your campus. That is an incentive to basically get them to back down and to perhaps shut their mouths and stop saying what they really believe about same-sex marriage. There’s a free-speech dimension to those conflicts, as well.
Jeff Schechtman: Talk a little bit about, and there’s been so much written about it lately, about what’s happening particularly with the far-left on college campuses today.
Damon Linker: Well, it’s dangerous to paint with too broad a brush, and that too is a complicated situation because at a time when you have the Trump Administration, which is a further right iteration of the Republican party than we’ve seen before in the White House, you have … so this is very provocative from Washington, from the Presidency, and you also have a lot of students from overseas that come to our colleges, there are a lot of people who feel a little bit threatened and scared, and then you have right-wing organizations on campus who often, these days, invite very, very polarizing figures to campus. Almost to goad the left into trying to kind of shout down the speakers or shut down the events, which then in turn gets picked up in right-wing media. There are a lot of organizations that popularize stories about left-wing protests, about rabble-rousers like Milo Yiannopoulos, Ben Shapiro and people like that, and then when the event gets shut down, or there’s a big protest and Tucker Carlson spends 20 minutes on it on Fox news.
There’s a kind of self-reinforcing radicalization going on on campuses, but it’s also true that there is a faction of the left that kind of echoes or mirrors what the far-right is trying to do by wanting to shut down really anyone who’s right of the center from coming and giving a talk on a campus. These are the kind of people who are sort of in the Antifa vein, people who believe like those Europeans I was mentioning. They believe that the only thing you can do when confronting someone you don’t agree with politically is to kind of drum them out of the debate, and say: “You give aid and comfort to fascists, therefore we’re not going to let you speak because we want to raise the consequences for being a fascist.”
“You can say you’re a fascist, but if you actually try to organize a protest or march or give a talk, we’re going to punch you in the face, like if you’re Richard Spencer who got famously punched during Trump’s inauguration.” He is a genuine fascist, genuine kind of neo-Nazi. Those sentiments are active on some college campuses. They are a kind of powder keg or tinderbox these days because you have the right trying to provoke exactly that and then the left more than happy to play along with it, or both sides for the sake of kind of propaganda victories. So, it can be pretty nasty.
Jeff Schechtman: What do you see as the nexus, if any, between all of this that’s happening left, right and center, and the corresponding rise of what some have referred to as a kind of truth decay and lack of trust in institutions and lack of trust in facts and information.
Damon Linker: Well, it’s a good question, and it’s very complicated to understand. It’s hard. I think a big factor that I haven’t mentioned yet is social media, especially Twitter and its role in kind of stirring the pot. Twitter is a platform that gives a megaphone to everyone who has an account, and people receive the most likes, the most re-Tweets, the most attention. Things go viral the most on Twitter when they are the most extreme, the most playing to a narrow faction that is narrow ideologically, but it might have tens, hundreds of thousands of people in it, or millions of people around the world. You can get a huge number of followers and a tremendous amount of attention on Twitter by being extreme, so there’s a kind of built-in, structural incentive to always move more radically in the direction you’re already inclined to go. So as things heat up, they kind of always seem to be moving in a more extreme direction. It’s a kind of centrifugal force to public discussion when it is mediated by social media.
So that’s part of it, another part is that there is always some truth to, when these things happen, and the fact is that we’re coming out of an era in the west, meaning western Europe and North America where say since the fall of the Berlin wall and the end of the Cold War, there has been a kind of centrist consensus on a lot of issues. We don’t always see that because Democrats and Republicans are always kind of hating each other, but the fact is, there was a tremendous amount of consensus on certain issues about economic policy. It’s the metaphor of the football field, and all the debates take place between the 40-yard lines.
What we’ve seen with the rise of Trump here, with the Brexit vote in Great Britain, with a lot of those populist parties that I mentioned earlier in central Europe, is kind of an expanding of that debate out to the 30-, the 20-, even the 10-yard lines. Now is that a bad thing? Well, not necessarily unless that social media dynamic that I mentioned kind of makes it so that every year it moves further and further out, and that’s when, then, kind of the truth problem comes in.
Like the further and further out those extremes go, the more they kind of have their own lines, their own authorities and a total distrust of the other side’s authorities, and so you end up getting not just partisan disagreements about a shared truth, but you get actually different truths. I say that with some irony because, of course, I like to think that there actually is just one truth, it’s just that we disagree about it. When this gets too extreme, you end up that there is no neutral place from which to adjudicate the competing truth claims.
That’s sort of the way it ends up working out, and it is connected to the kind of breakdown in a common shared notion that we share a world. The same things are happening for all of us, and we should be able to have a raucous debate about it, and the meaning of it, and what we should do politically on the basis of that truth versus competing epistemologies where we kind of, each faction believes its own story about what’s going on, and it has no overlap with the other camp’s story.
Jeff Schechtman: Isn’t this the reason why, arguably, this time it’s different. That it is different from other times when we have faced these issues before because of all these forces that are coming together at the same time and that the net result this time could truly be a decline of democratic values in democracy.
Damon Linker: Yeah, it’s possible. I’m known in my writing as a bit of a pessimist, and I don’t mean that in the sense that I predict things will get worse, but in the sense that I realize that the consensus sort of center-right, center-left situation that we’ve been in over the last generation or so in the West, and maybe even since the end of World War II, there’s nothing written in the heavens saying that this is just the way it works.
Empires rise and fall. Political systems rise and fall, they also change, and sometimes not just the kind of mild between the 40-yard line change that we see when we go from say, a Reagan to a Bush and a Clinton, back to a Bush, back to an Obama and then to what would have been a Hillary Clinton after that and then maybe to like a Marco Rubio after that or a Mitt Romney. Those are all within the 40-yard lines.
You’ve seen a lot of this actually since the election where a lot of intellectuals who are usually more ideologically consistent than your average less-informed voter. I mean you’ve seen this with people like Bill Kristol and Max Boot and Bob Kagan and Jennifer Rubin, a whole series of people who four years ago were firmly anti-Obama, neocon-ish, staunch Republicans who don’t like the Democrats at all, want to see them lose, lose, lose. Now, all of those people I mentioned and a bunch more on top of them are kind of, in effect, Democrats. They’re kind of very conservative Democrats, but they kind of  pretty much straightforwardly would like to see the Democrats win and the Republicans lose because in their view Trump is too extreme. He’s like on the 25-yard line, and as far as those people are concerned, they’d rather be with someone on the opposite side 55-yard line than they would to move out with their party to the 25-yard line, because that’s too extreme for them.
They see more in common with the Democrats, say a Democrat like Hillary Clinton whose kind of hawkish on foreign policy and sort of moderate on other issues. They’re like, eh, we don’t agree with her on some things but at least she’s not like, dangerous, she’s not playing from outside the bounds of what we’ve come to accept as normal. The definition of normal seems to be changing in our time.
Jeff Schechtman: I guess the most optimistic view that emerges from that is an idea that we have to look at historical precedent for where we see really a fundamental realignment among political parties and among different groups with respect to some of these ideas, and that they now sort of sort themselves out and mix and match in a different way.
Damon Linker: Yeah, I actually had a little more hope of that before the election. I didn’t think Trump would win, but when I wrote a column or two or three or ten, in the endless run up to the election last time, I did write a number of things about, kind of speculatively, like, “what does it mean that Trump got the nomination on the right and that he’s running a campaign, and if he won, what would it mean.” I had more hope, actually, that he might succeed or try to move the Republican party in the direction of being more genuinely populist, like what he and Steve Bannon called a workers’ party, like a party that actually tried to put the interests of working-class white voters ahead of the plutocrats and the Republican party.
The fact is that Trump was so completely ill-prepared to be President, both on a knowledge base and kind of temperamentally. Then the people he brought into power with him, including Bannon, were so also ill-equipped to run the government, that that populist agenda totally crashed and burned after a few months. The only significant legislative achievement of the first year of the administration was the most plutocratic tax bill we’ve seen since the 1980s, where basically we gave a tremendous boost to the corporate sector. Corporations are going to make trillions of dollars off of this tax cut to corporations. The rest of us will get some scraps, and they’re going to go away within a decade as changes get made.
What you’ve ended up with is kind of a Paul Ryan/pro-plutocratic side of the Republican party has ended up prevailing after all, and the only thing that’s new about Trump is this kind of rhetoric of populism and then the kind of anti-immigrant agenda. That’s pretty much it. That’s disappointing to me because with that, that’s not going to … realignment only works if both parties realign. Right now, the Republicans haven’t really done much change, they’ve merely added a kind of nastiness on the surface of what they’ve been doing since Reagan. I don’t think that’s going to be enough to really force the Democrats to change their view that much.
We remain in a very, I think, unstable place, and we probably will for a few presidential election cycles I would see. A lot’s going to depend on who the Democrats run in 2020 and how that catalyzes the politics in the country.
Jeff Schechtman: Damon Linker, his article “Is America Having Second Thoughts About Free Speech?” Damon, I thank you so much for spending time with us here on Radio WhoWhatWhy.
Damon Linker: You’re welcome. Thanks for having me. It was a pleasure.
Jeff Schechtman: Thank you. And thank you for listening and for joining us here on Radio WhoWhatWhy. I hope you join us next week for another Radio WhoWhatWhy podcast. I’m Jeff Schechtman.

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