New York Times: America Has a Free Speech Problem

From a New York Times editorial:

For all the tolerance and enlightenment that modern society claims, Americans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned.

This social silencing, this depluralizing of America, has been evident for years, but dealing with it stirs yet more fear. It feels like a third rail, dangerous. For a strong nation and open society, that isdangerous.

How has this happened? In large part, it’s because the political left and the right are caught in a destructive loop of condemnation and recrimination around cancel culture. Many on the left refuse to acknowledge that cancel culture exists at all, believing that those who complain about it are offering cover for bigots to peddle hate speech. Many on the right, for all their braying about cancel culture, have embraced an even more extreme version of censoriousness as a bulwark against a rapidly changing society, with laws that would ban books, stifle teachers and discourage open discussion in classrooms.

Many Americans are understandably confused, then, about what they can say and where they can say it. People should be able to put forward viewpoints, ask questions and make mistakes and take unpopular but good-faith positions on issues that society is still working through — all without fearing cancellation.

However you define cancel culture, Americans know it exists and feel its burden. In a new national poll commissioned by Times Opinion and Siena College, only 34 percent of Americans said they believed that all Americans enjoyed freedom of speech completely. The poll found that 84 percent of adults said it is a “very serious” or “somewhat serious” problem that some Americans do not speak freely in everyday situations because of fear of retaliation or harsh criticism.

This poll and other recent surveys from the Pew Research Centerand the Knight Foundation reveal a crisis of confidence around one of America’s most basic values. Freedom of speech and expression is vital to human beings’ search for truth and knowledge about our world. A society that values freedom of speech can benefit from the full diversity of its people and their ideas. At the individual level, human beings cannot flourish without the confidence to take risks, pursue ideas and express thoughts that others might reject.

Most important, freedom of speech is the bedrock of democratic self-government. If people feel free to express their views in their communities, the democratic process can respond to and resolve competing ideas. Ideas that go unchallenged by opposing views risk becoming weak and brittle rather than being strengthened by tough scrutiny. When speech is stifled or when dissenters are shut out of public discourse, a society also loses its ability to resolve conflict, and it faces the risk of political violence….

“There’s a crisis around the freedom of speech now because many people don’t understand it, they weren’t taught what it means and why it matters,” said Suzanne Nossel, the chief executive of PEN America, a free speech organization. “Safeguards for free speech have been essential to almost all social progress in the country, from the civil rights movement to women’s suffrage to the current fights over racial justice and the police.”

Times Opinion commissioned the poll to provide more data and insight that can inform a debate mired in extremes. This editorial board plans to identify a wide range of threats to freedom of speech in the coming months and to offer possible solutions. Freedom of speech requires not just a commitment to openness and tolerance in the abstract. It demands conscientiousness about both the power of speech and its potential harms. We believe it isn’t enough for Americans to just believe in the rights of others to speak freely; they should also find ways to actively support and protect those rights.

We are under no illusion that this is easy. Our era, especially, is not made for this; social media is awash in speech of the point-scoring, picking-apart, piling-on, put-down variety. A deluge of misinformation and disinformation online has heightened this tension. Making the internet a more gracious place does not seem high on anyone’s agenda, and certainly not for most of the tech companies that control it.

But the old lesson of “think before you speak” has given way to the new lesson of “speak at your peril.” You can’t consider yourself a supporter of free speech and be policing and punishing speech more than protecting it. Free speech demands a greater willingness to engage with ideas we dislike and greater self-restraint in the face of words that challenge and even unsettle us.

It is worth noting here the important distinction between what the First Amendment protects (freedom from government restrictions on expression) and the popular conception of free speech (the affirmative right to speak your mind in public, on which the law is silent). The world is witnessing, in Vladimir Putin’s Russia, the strangling of free speech through government censorship and imprisonment. That is not the kind of threat to freedom of expression that Americans face. Yet something has been lost; the poll clearly shows a dissatisfaction with free speech as it is experienced and understood by Americans today….

Pollsters asked how free people felt today to discuss six topics — including religion, politics, gender identity and race relations — compared to 10 years ago: more free, less free or the same. Those who felt freest were Black respondents: At least 30 percent of them said they felt more free to speak on every topic, including 42 percent on race relations, the highest share of any racial or ethnic group. Still, that sentiment of more freedom among Black respondents reached only 46 percent, not a majority (the 46 percent being on the issue of gender identity).

At the same time, a full 84 percent of Black people polled shared the concern of this editorial that it was a “very serious” or “somewhat serious” problem that some Americans do not exercise their freedom of speech out of fear of retaliation or harsh criticism. And 45 percent of Black people and nearly 60 percent of Latinos and white people polled reported that they’d held their tongues in the past year out of fear of retaliation or harsh criticism.

While the level of national anxiety around free speech is apparent, the solutions are much less clear. In the poll, 66 percent of respondents agreed with the following: “Our democracy is built upon the free, open and safe exchange of ideas, no matter how different they are. We should encourage all speech so long as it is done in a way that doesn’t threaten others.” Yet a full 30 percent agreed that “while I support free speech, sometimes you have shut down speech that is antidemocratic, bigoted or simply untrue.” Those who identified themselves as Democrats and liberals showed a higher level of support for sometimes shutting down such speech.

The full-throated defense of free speech was once a liberal ideal. Many of the legal victories that expanded the realm of permissible speech in the United States came in defense of liberal speakers against the power of the government — a ruling that students couldn’t be forced to recite the Pledge of Allegiance, a ruling protecting the rights of students to demonstrate against the Vietnam War, a ruling allowing the burning of the American flag.

And yet many progressives appear to have lost faith in that principle. This was a source of great frustration for one of those who responded to our poll, Emily Leonard, a 93-year-old from Hartford, Conn., who described herself as a liberal. She said she was alarmed about reports of speakers getting shouted down on college campuses. “We need to hear what people think, even though we disagree with them. It is the basis of our democracy. And it’s absolutely essential to a continuing democracy,” she said. “Liberal as I am — a little to the left of Lenin — I think these kids and this whole cancel culture and so-called woke is doing us so much harm. They’re undermining the Constitution. That’s what it comes down to.”

The progressive movement in America has been a force for good in many ways: for social and racial justice, for pay equity, for a fairer system and society and for calling out hate and hate speech. In the course of their fight for tolerance, many progressives have become intolerant of those who disagree with them or express other opinions and taken on a kind of self-righteousness and censoriousness that the right long displayed and the left long abhorred. It has made people uncertain about the contours of speech: Many know they shouldn’t utter racist things, but they don’t understand what they can say about race or can say to a person of a different race from theirs. Attacking people in the workplace, on campus, on social media and elsewhere who express unpopular views from a place of good faith is the practice of a closed society.

The Times does not allow hate speech in our pages, even though it is broadly protected by the Constitution, and we support that principle. But there is a difference between hate speech and speech that challenges us in ways that we might find difficult or even offensive.

At the same time, all Americans should be deeply concerned about an avalanche of legislation passed by Republican-controlled legislatures around the country that gags discussion of certain topics and clearly violates the spirit of the First Amendment, if not the letter of the law.

It goes far beyond conservative states yanking books about race and sex from public school libraries. Since 2021 in 40 state legislatures, 175 bills have been introduced or prefiled that target what teachers can say and what students can learn, often with severe penalties. Of those, 13 have become law in 11 states, and 106 are still under consideration. All told, 99 bills currently target K-12 public schools, 44 target higher education, and 59 include punishment for violators, according to a running tally kept by PEN America. In some instances, the proposed bills failed to become law. In other cases, the courts should declare them unconstitutional.

These bills include Florida’s “Don’t Say Gay” bill, which would restrict what teachers and students can talk about and allows for parents to file lawsuits. If the law goes into force, watch for lawsuits against schools that restrict the free speech rights of students to discuss things like sexuality, established by earlier Supreme Court rulings.

The new gag laws coincide with a similar barrage of bills that ostensibly target critical race theory, an idea that has percolated down from law schools to the broader public in recent years as a way to understand the pervasiveness of racism. The moral panic around critical race theory has morphed into a vast effort to restrict discussions of race, sex, American history and other topics that conservatives say are divisive. Several states have now passed these gag laws restricting what can be said in public schools, colleges and universities, and state agencies and institutions.

In passing laws that restrict speech, conservatives have adopted the language of harm that some liberals used in the past to restrict speech — the idea that speech itself can cause an unacceptable harm, which has led to a proliferation of campus speech codes and the use of trigger warnings in college classrooms.

Now conservatives have used the idea of harmful speech to their own ends: An anti-critical-race-theory law in Tennessee passed last year, for instance, prohibits promoting the concept that “an individual should feel discomfort, guilt, anguish or another form of psychological distress solely because of the individual’s race or sex” — a measure aimed at avoiding the “distress” that students might feel when learning about racist or misogynist elements of American history. (Unmentioned, of course, is the potential discomfort felt by students who are fed a whitewashed version of American history.)

Liberals — and anyone concerned with protecting free speech — are right to fight against these pernicious laws. But legal limits are not the only constraints on Americans’ freedom of speech. On college campuses and in many workplaces, speech that others find harmful or offensive can result not only in online shaming but also in the loss of livelihood. Some progressives believe this has provided a necessary, and even welcome, check on those in power. But when social norms around acceptable speech are constantly shifting and when there is no clear definition of harm, these constraints on speech can turn into arbitrary rules with disproportionate consequences.

Free speech is predicated on mutual respect — that of people for one another and of a government for the people it serves. Every day, in communities across the country, Americans must speak to one another freely to refine and improve the elements of our social contract: What do we owe the most vulnerable in our neighborhoods? What conduct should we expect from public servants? What ideas are so essential to understanding American democracy that they should be taught in schools? When public discourse in America is narrowed, it becomes harder to answer these and the many other urgent questions we face as a society.


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