When explaining her position, lawprof and former ACLU president Nadine Strossen was straightforward about her belief that free speech would be the more effective means of persuading people to embrace “social justice.” That one of the fundamental tenets of “social justice” was silencing hate speech gave rise to no cognitive dissonance.
But it’s this inexplicable and inconsistent combination of beliefs that makes someone like Strossen, and Laura Kipnis, desired as speakers, panelists, spokespersons for free speech. After all, they are feminists, social justice warriors to the core, and their position, that calls for silencing “hate speech” are a necessary means to their agreed-upon ends, carries greater weight.
And so Nadine Strossen gave testimony on October 26, 2017, to the Senate Committee on Health, Education, Labor and Pensions on “Exploring Free Speech on College Campuses.” At Concurring Opinions, Ronald K.L. Collins provides Strossen’s statement.
In my capacity as a human rights activist, I am convinced, based upon the historic and current record, that these cardinal First Amendment principles are essential for furthering any political or social cause, including human rights. This conclusion is reaffirmed by examining how “hate speech” laws recently have been enforced in other comparable countries; they have disproportionately suppressed dissenting views and disempowered speakers.
This position is, perhaps, the most easily digestible rationale for why free speech should be protected, as its deprivation will “disproportionately” be used to suppress speech by “disempowered speakers.” It’s not that this is untrue, but that the allure of such a rationalization to soothe the fevered brow of those calling for censorship of “hate speech” suggests that the justification for free speech hinges on there being a good reason, an acceptable reason for the marginalized, to support it.
The term “hate speech” has no specific legal meaning. That is precisely because the Supreme Court never has defined a category of constitutionally unprotected “hate speech,” which is excluded from First Amendment protection based on its message or viewpoint.
The most generally understood meaning of “hate speech” is expression that conveys hateful or discriminatory views about specific individuals or groups, particularly those who have historically faced discrimination.
Where this “most generally understood meaning” comes from is unclear. That there is no legal meaning to the phrase is beyond question, but the “most generally understood meaning” is no more comprehensible than the phrase itself. What are “hateful or discriminatory views”? Is it wrong for blacks to hate Naxos? Is it discriminatory for anyone to hate guacamole made with peas?
Beyond this core meaning, many people have hurled the epithet “hate speech” against a diverse range of messages that they reject, including messages about many important public policy issues. Myriad political controversies, and the heated rhetoric they often provoke, have generated charges and counter-charges of “hate speech.”
Much as this may be a correct assessment of how meaningless phrases are hurled back and forth, each side taking comfort in its own interpretation of the vagaries of the words in a never-ending series of shrieks of “gotcha,” this argument gives rise to a glaring gap, a gross misconception that warms the hearts of social justice warriors at the expense of principle. There is no requirement, no duty, no limit, no mandate that speech protected under the First Amendment serve to further political discourse at all.
Stupid speech is protected speech unless it isn’t. Pointless speech is protected speech unless it isn’t. Speech that contributes nothing whatsoever to thoughtful political discourse is protected speech unless it isn’t. Even gross and unsavory speech is protected speech. Unless it isn’t. And the only reason such speech wouldn’t be protected is because it falls within a clearly defined exception to the First Amendment.
This effort to justify free speech, to “persuade” those who would demand speech that offends them be eliminated, that it would be in their best interest to support free speech because it allows them to promote their political agenda as well as the agenda of those who are awful and horrifying, creates a belief that speech that falls below some threshold of ideas, even really bad ideas, isn’t speech that’s protected by the First Amendment.
This is a very dangerous, very wrong, argument. Speech does not need to meet any intelligence threshold to be worthy of protection. It doesn’t need to be political. It doesn’t need to express an idea, even if the idea is terrible, to deserve protection. All speech that isn’t unprotected by meeting the elements of an exception is free speech. No matter how stupid, foolish and societally worthless the speech may be, it’s still protected.
And there is no requirement under the First Amendment that you be capable of explaining why your speech is worthy of protection.
There was a parallel argument made with regard to the standard of proof in criminal cases, beyond a reasonable doubt, that since it’s a “reasonable” doubt, it must mean a doubt for which a juror has a reason. Therefore, if a juror can’t express a sound reason for his doubt, then his doubt is unreasonable. This is, of course, complete nonsense.
There is no requirement that a juror possess the capacity to explain his doubt, no less provide an explanation that meets other people’s notion of reasonableness.
While positions like Strossen’s serve to make free speech more understandable to the forces that would embrace it for themselves while they deny it to others, they similarly create a false understanding of what free speech means. The argument suggests that speech lacking any political purpose, or just plain wrong, or mind-numbingly stupid, doesn’t suffice by any intelligent metric for protection as free speech.
Would it be impossible to “sell” the First Amendment’s promise of free speech to the outraged campus mobs on the basis of freedom, without any further justification? Should it matter that the social justice scolds demand a reason that meets their satisfaction before considering that free speech isn’t up to them and doesn’t have to meet their approval? No. American freedom does not require the permission of Strossen or the bias response team.