There are real threats to free speech in today’s America. Just not the ones that are getting the most attention.
The most prominent concern from those who say they care about free speech is that the threat comes from left-wing students at elite colleges and universities who shout down or block controversial speakers, like Bell Curve author Charles Murray or the feminist critic Christina Hoff Summers. The columnists Bari Weiss and Bret Stephens of the New York Times are preoccupied with these and similar incidents, as are—to varying degrees—writers at New York magazine, the Atlantic, and the Washington Post.
This concern is understandable. These writers are often graduates of similar institutions, and some have been combatants themselves in these college controversies. As people in the business of speech, argumentation, and occasionally, provocation, they are disturbed to see what seem to be attacks on open dialogue from students who will be the tastemakers and powerbrokers of the future. For these critics, an illiberal campus left might eventually become an illiberal political left. (Although recent data throws cold water on the idea that the far left is hostile to free speech, and—a generation after the “political correctness” wars of the 1980s and 1990s—similar warnings of illiberalism have failed to pan out.)
The problem with their preoccupation isn’t the expressed discomfort with campus stridency and opposition to so-called “no-platforming.” It is fair to want to let speakers speak, although critics of campus activists should take care not to elide the difference between vocal disagreement—which itself is speech—and the “heckler’s veto.” The aforementioned Christina Hoff Summers, for example, was able to speak following the protest in question. The problem is that these writers are bringing real institutional clout and firepower to bear on a phenomenon that encompasses only a small handful of students at an even smaller number of largely unrepresentative institutions. On the list of threats to freedom of expression, left-wing students shouting at prominent writers and speakers—all of whom retain their platforms in major media—seems minor.
What actually looms are more traditional threats to free speech, from the state using its power to suppress dissidents and minorities (or protect those who would), to extremist groups using the threat of violence to monopolize and control public space. Focusing on campus protesters in the face of this danger is like worrying about the crumbs on your floor when your kitchen is on fire.
In the wake of recent civil rights and environmental protests where activists blocked roads and highways as acts of civil disobedience, Republican lawmakers in several states proposed bills that would protect drivers who caused injury or death to someone blocking a roadway, as long as they exercised “due care.” Floated in Florida, North Carolina, North Dakota, Rhode Island, Tennessee, and Texas, these bills were written with a clear wink and nod toward those who would disrupt protests with their vehicles. None passed, but the intent was clear: To suppress unpopular speech with the threat of state-sanctioned harm.
One of the many troubling facts of the “Unite the Right” gathering in Charlottesville, Virginia, last summer was how a number of white supremacists armed themselves with the intent of intimidating opposition. Clad in paramilitary gear, these particular protesters carried assault rifles and marched in formation. They didn’t break any laws, but their display was meant to menace and shut down opposing speech.
On campuses, it’s clear the most dangerous attacks on free expression are coming from state lawmakers. Last year in Wisconsin, the GOP-controlled Assembly passed a bill that would suspend or expel University of Wisconsin students who disrupted campus speakers or presentations. Gov. Scott Walker supports the measure, which is based on a proposal from the conservative Goldwater Institute in Arizona, and backed by Americans for Prosperity, a right-wing advocacy group.
Critics say the statute is too broad and opens student dissenters to harsh sanction for anything that can be labelled disruptive, from a silent protest and walkout to a pointed question that elicits applause. “Instead of protecting free expression, this new policy will have the opposite effect – threatening the First Amendment rights of students and suppressing constitutionally-protected speech,” said the ACLU of Wisconsin in a statement. “Giving controversial figures the right to speak – which the ACLU supports – does not mean denying students the right to protest them.”
In 2016, Arizona passed a statute that bars the state from “entering into government contracts with companies or persons who engage in or advocate for economic boycotts of Israel,” a policy that banned pro-boycott speakers from Arizona college campuses. The state now faces a lawsuit from a Muslim group that says it’s been unconstitutionally barred from engaging in speech. The suit argues that statute constitutes “viewpoint discrimination” and “singles out government contractors who advocate for Palestine and against Israel as specific speakers who warrant disfavored treatment.” The threat extends to blue states too. In New York, Gov. Andrew Cuomo signed an executive order creating a similar blacklist for anyone who boycotts Israel.
There are other examples of lawmakers using the power of the state to suppress speech they do not like. Alabama, Arizona, Texas, South Carolina, Oklahoma, Louisiana, and Mississippi all have laws that ban the positive portrayals of homosexuality in public schools. In Alabama, the law states that “any program or curriculum in the public schools in Alabama that includes sex education or the human reproductive process shall, as a minimum, include and emphasize…in a factual manner and from a public health perspective, that homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offense under the laws of the state.”
Looking beyond the states, there’s the not-insignificant fact that President Trump encouraged team owners in the National Football League to fire players who protested police brutality by taking a knee during the national anthem, a clear call to punish speech. The White House took a similar line on a sports journalist who labeled the president a “white supremacist.”
We have strong and expansive free speech norms in the United States—to say nothing of the First Amendment itself. Still, who can speak and what can be said has always been contested territory, with restriction and sanction often falling on marginalized and disfavored groups. You only need a glance at our present political landscape to see that this is still true.
We should confront the threats to free expression. But let’s make sure we’re looking in the right place and aiming at the right actors. It is not radical college students who truly threaten free speech, it’s those people—like the sitting president of the United States—who hold actual power.