A Brief Excerpt from The Case Against the New Censorship:
The New Censors: Can Freedom of Speech Be Saved from “Progressives,” Social Media, and Universities?
Freedom of speech in America is facing the greatest threats since the Alien and Sedition acts of 1798, which unconstitutionally punished “false, scandalous or malicious writing” against the United States.
Today’s threats are even greater than during McCarthyism. This is true for three important reasons: First, today’s censorship comes, for the most part, from so-called progressives, who are far more influential and credible than the reactionaries who promoted and implemented McCarthyism. The current efforts to censor politically incorrect and “untruthful” views are led by young people, academics, high tech innovators and writers— yes, writers! These self-righteous and self-appointed Solons of what is and is not permissible speech represent our future, whereas the McCarthyite censors were a throwback to the past— a last gasp of repression from a dying political order.
The new censors are our future leaders. They are quickly gaining influence over the social media, the newsrooms of print and TV, the academy, and other institutions that control the flow of information that impacts all aspects of American political life. These censorial zealots will soon be the CEOs, editors-in-chief, deans, and government officials who run our nation. They are destined to have even more influence over what we can read, see, and hear. If today’s attitudes toward freedom of speech by many millennials become tomorrow’s rules, our nation will lose much of its freedom of thought, expression, and dissent. Those of us who cherish these freedoms must become more proactive in their defense.
Second, these new progressive censors base their opposition to untrammeled freedom of expression on policies supported by many Americans, especially centrist liberals: anti-racism, anti-sexism, anti-homophobia, anti-hate speech, anti-Holocaust denial, anti-climate denial, and anti-falsehoods. Moreover, these arguments are being offered by people we admire and love. I call them the “good” censors. To paraphrase Pogo: “We have seen the enemy of free speech, and he and she are us!” It is much more difficult to combat us than they.
Third, the current regime of censorship is more dangerous because for the most part it is not prohibited by the First Amendment: it is promulgated and enforced by private parties who have their own First Amendment rights, rather than by government agents who are bound by the Constitution to “make no law … abridging the freedom of speech.” When the government suppresses speech—as it did during McCarthyism by means of Congressional Committee and other state actors—such suppressions can be challenged in the courts, as they were during the 1950s. To be sure, some of the McCarthyite suppression came from private media companies, such as Hollywood studios and television networks (blacklists and “Red Channels”).They, too, were more difficult to challenge than governmental censorship and suppression.
During both McCarthyism and the current attack on free speech, the chilling of speech by self-censorship silenced many voices, fearful of recriminations. This, too, is a growing danger that is more difficult to combat than overt governmental censorship.
Nor are these new threats to freedom of speech merely transient reactions to current crises, as McCarthyism proved to be. Today’s progressive repression represents changing attitudes among future leaders that may well have enduring consequences beyond the current divisiveness resulting from the Trump presidency.
A) The Trump Factor
Trump himself bears some of the responsibility for stimulating the recent censorial over-reaction. President Trump pushed the First Amendment to its limits—some believe beyond its limits—with his speech before the attack on the Capitol Building, his remarks following the Charlottesville demonstration, and other provocative statements that many regarded as dog whistles. Although some of what he said was reported out of context and without the qualifications he actually added, his words led many—including the ACLU—to demand limitations on his free speech rights. Once limitations are accepted and imposed on anyone’s freedom of expression, a dangerous precedent is established for extending these limitations to unpopular speech by other leaders and ordinary citizens. We are already seeing that happen with efforts to punish members of Congress, lawyers, professors, and ordinary citizens for speeches and statements that were deemed supportive of Trump.
Trump was seen by many on the left, and even some in the center right, as a uniquely dangerous and evil president, whose actions justified extraordinary measures, even measures that compromised constitutional rights and values. The “noble” end of silencing and defeating Trump justified any ignoble means, including denying him and his supporters and enablers the right of free speech, especially on social media.
Some supporters of unconstitutional means seek to justify their censorship and other repressive measures by distorting the Constitution and turning it into a partisan weapon that would have made Jefferson and Madison cringe. Others simply ignore the Constitution and civil liberties in what they honestly believe is a higher calling— namely, to rid us now of Trump and prevent him from running again at any cost, and without regard to long-term dangers to our liberty.
For some liberal opponents of President Trump, this short-term approach posed a conflict with their commitment to civil liberties for everyone, even those whom they despise and fear. Far too few resolved that conflict in favor of our basic liberties. Those of us who did were accused of being Trump enablers, thus deterring many others from incurring that opprobrium. It became dangerous to careers, friendships, and civil discourse to come down on the side of constitutional rights and civil liberties when those rights and liberties happen to support President Trump.
B) The Academic Attacks on Freedom of Speech: Anti-Trump Petitions
Many prominent academics lent their good names to deliberate misinterpretations of the Constitution that they never would have accepted had the shoe been on the other foot—had the President been a liberal Democrat whom they supported, rather than President Trump, whose policies and actions they despised. Their partisan hypocrisy was evident to those of us who knew their history, but not as obvious to those who only saw their institutional affiliations and academic pedigrees. They signed petitions that used their scholarly credentials as a cover for their partisan preferences.
One of the most dangerous of the many petitions circulated by those supporting Trump’s removal was signed by many prominent constitutional scholars. On the eve of former President Trump’s second impeachment trial in the senate, a group of 144 constitutional scholars issued a threatening public letter to his lawyers demanding, in effect, that they not make arguments to the Senate regarding the First Amendment. This demand came in the form of a claim that “any First Amendment defense raised by President Trump’s attorneys would be legally frivolous.”
This demand is both dangerous to our adversarial system of justice and wrong as a matter of constitutional law. It is dangerous because the rules of professional responsibility prohibit a lawyer from making frivolous arguments, and carry disciplinary sanctions for anyone who does. The letter purported to put Trump’s lawyers on notice that if they made any First Amendment arguments, they would be subjecting themselves to possible discipline.
The argument is wrong on its merits as a matter of Constitutional law. But the most dangerous aspect of the letter is that its goal was to chill President Trump’s lawyers from making important arguments on behalf of their client. The letter could easily have said that any First Amendment argument would be wrong, but the letter went further and suggested that any such argument is prohibited by the Code of Professional Responsibility, and may result in disciplinary sanctions against any lawyer who makes a frivolous argument.
As a teacher of legal ethics for more than a quarter of a century at Harvard Law School, I know that these 144 experts are wrong. Arguments to the Senate based on the First Amendment are not frivolous. They should be and were offered vigorously and responsibly without fear of ethical consequences. What is of questionable ethics is for the scholars to try to frighten lawyers away from making plausible arguments by threatening that they might face disciplinary consequences for doing so. I offered to support any lawyer who made responsible First Amendment arguments to the Senate and is disciplined as a consequence.
As a constitutional lawyer who has litigated some of the most important First Amendment cases in the last half century—including the Pentagon Papers, I Am Curious (Yellow), Hair, the Chicago Seven, Frank Snepp, Harry Reams, and Wikileaks – I am relatively confident that the current Supreme Court would find President Trump’s ill-advised and justly condemnable speech to be fully protected under the Brandenburg principle, which distinguishes between advocacy and incitement to violence. President Trump’s words were provocative, but they included a plea for his listeners to protest “peacefully and patriotically.” Compared to the speech made by Clarence Brandenburg—a neo-Nazi Klansman surrounded by armed men with crosses—President Trump’s speech was pabulum. It was typical of rousing speeches made by radicals, union leaders, suffragettes, and some Democratic politicians in our nation’s capital and elsewhere. It was far less incendiary than the speeches made by anti-war activists during the Democratic national convention of 1968 (the Chicago Seven).
Not only would this Supreme Court conclude that the speech was protected advocacy, so would prior Supreme Courts during the golden age of the First Amendment, which extended from the early 1960s to the beginning of the 21st century. Justices Holmes, Brandeis, and Jackson would also have found this speech to be well within the protections of the First Amendment. The letter itself conceded that only some of the signers—not all—agree with its conclusion about the speech being outside the protections of Brandenburg. How then could it be frivolous for Trump’s lawyers to offer such an argument?
The argument that the First Amendment “simply does not apply” to impeachment cases flies in the face of the text, which prohibits “Congress” from making any law abridging “the freedom of speech.” The courts have interpreted this to include any state action, whether in the form of a formal law or any other consequential act. Once again, it would be one thing if the letter had merely said that this argument is wrong, but to say it is frivolous is dangerous and irresponsible.
The letter also states that “no reasonable scholar or jurist” would make these First Amendment arguments. This sends a chilling message to current and prospective law teachers: if you want to be considered a “reasonable scholar or jurist” by your peers and hiring committees, don’t you dare make these constitutional arguments in the court of public opinion. Well, I, for one, continued to make them, and I challenged the signatories to the letter to debate me about whether my arguments are reasonable or frivolous. None accepted.
First Amendment issues should have been and were vigorously presented to the Senate without fear of being branded frivolous and thus unethical or unreasonable and thus disqualifying as a scholar or jurist. To try to intimidate lawyers from making them by declaring them frivolous and irresponsible is a form of prior censorship, inconsistent with the spirit of our constitutional system.
Another outrageous petition was by hundreds of authors, journalists, editors, publishers, agents, and others in the media demanding that no one who “participated in the administration of Donald Trump” should have their “philosophies” published and given “the imprimatur of respectability.” They say that they “believe in the power of words” and that is why they seek to deny that power to “the monsters among us, and will do whatever is in our power to stop” enriching these “monsters”—a word that speaks volumes about the growing intolerance toward differing political views – by publishing their books and other writings.
Similar petitions are being circulated by students, faculty, lawyers and others who claim the mantle of being progressives and do-gooders. These include petitions at several universities demanding that anyone who participated in, enabled or supported the Trump Administration be censored as a speaker, be cancelled as a potential teacher, and be required to acknowledge their wrongdoing and subject themselves to some sort of moral reprogramming. The Harvard Law School petition demands that “people who condone and participate in anti-democratic, racist, xenophobic, and immoral practices have no home at Harvard,” and should not be allowed “back into polite society.” A ban on such people would “teach ambitious students of all ages that attempting to subvert the democratic process” will be bad for their “success and prestige.” Thousands of lawyers, professors, and law students have petitioned to disbar and/or discipline lawyers who “denigrated democratic institutions,” “betray the very democratic institutions they are charged with protecting,” or show “no respect for the constitution.”
C) Comparisons to McCarthyism
These are precisely the kinds of vague, anti-patriotic accusations that were levelled against lawyers who represented alleged Communists and “fellow travelers,” and that led to the call for “loyalty” tests and oaths by Senator McCarthy and his minions. Bar associations and character committees disqualified, as unpatriotic, lawyers who failed to pass such tests because of their radical left-wing views or associations. True civil libertarians—even those who despise Communism—opposed such McCarthyite reprisals, arguing that American lawyers, and ordinary citizens, must remain free to criticize all aspects of our system of governance, including the Constitution and democratic institutions, as many radicals have done throughout history.
The new progressive censors must understand this history if it is not to be turned against them in the future. Precedents established today against the right will lie about like loaded weapons to be deployed against the left tomorrow. Indeed, repression in the United States has been directed at the left more often than against the right. Past may become prologue when it comes to repression.
In the late 1940s and early 1950s, it was the fear of Communism that fueled the censorship of the McCarthyite right. Over the past four years, it was the fear of Trumpism —and of President Trump himself—that escalated and energized a nascent left-wing movement toward censorship and cancelation of many on the right and even in the center. Too few civil libertarians have risen to the challenge of defending the rights of Americans accused of supporting Trump. In some civil liberties circles, it is more acceptable to defend the rights of Neo-Nazis to march through Jewish neighborhoods and hold anti-Semitic signs than it is to defend Donald Trump’s freedom of speech.
I came of age during the era of McCarthyism, but I never understood until now how decent people—friends and relatives I admired – could support suppression of free speech and due process and other denials of basic liberties. Some of my professors at Brooklyn College supported McCarthyism. These included such distinguished scholars as Professor Eugene Scalia, father of Justice Scalia, as well as several professors who had emigrated to America from Hungry, Czechoslovakia, and other countries under the thrall of Communism. In all other respects, these were decent, sensitive, and liberty-loving people who had one significant flaw: their support for repressive McCarthyism. Their experience with Communist oppression gave them a blind spot with regard to the rights of those suspected of Communist affiliation. I simply could not understand it, because I viewed McCarthyism as totally and unequivocally evil—just as I viewed Communism. I could not understand how good people could support such a bad policy. I hated Communism, but I didn’t personally fear it. It never occurred to me that Communists could ever get a foothold in the United States. I personally knew no Communists, except for the occasional oddball who would hand out leaflets in the neighborhood. To me Communism was a hollow threat—a straw man—that was being used as an excuse for repression. I simply could not identify with anyone who would suppress the rights of individuals accused of Communism or communist affiliation.
Now that I see good and decent people demanding censorship and denial of due process for those who collaborated with Trump, I have a better understanding of what I grew up with. These modern day McCarthyites of the left were genuinely afraid of Donald Trump and what he stood for. They really believed, as did some of the McCarthyites I knew during the 1950s, that giving free speech rights to those who they feared would bring about catastrophe. For them, both then and now, the noble end of preventing the victory of Communism or Trumpism justified any means, including even the most ignoble and repressive.
I recall being asked by some supporters of McCarthyism at Brooklyn College how I could defend the rights of Communists, who, if they came to power, would deny me my rights of free speech. I was asked similar questions by friends who saw my support for President Trump’s constitutional rights as enabling a president who would deny those basic rights to others. The similarities are striking and frightening. The essence of democracy is assuring rights even to those who would deny them to you. The Constitution is not a suicide pact, but nor is it a license to deny liberty in response to any perceived threat to safety.
As Benjamin Franklin cautioned: “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” We must sometimes compromise safety in the short-term to protect liberty in the long term. In extreme situations, we may even have to compromise some liberties in order to protect ourselves. But freedom of speech—freedom to criticize governments and other institutions—should never be among them.
Jefferson was being somewhat Pollyannaish when he assured us that “we have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors,” but he was surely correct when he warned us that we have much to fear from the “varying consciences” of the censors.