Strossen: Justifying Free Speech

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.

14 thoughts on “Strossen: Justifying Free Speech

  1. Grey Ghost

    Unfortunately, “free speech for me, but not for thee” isn’t solely an attitude of the left – but it is epidemic on that side of the aisle as opposed to being an occasional thing. Strossen’s reasoning makes about as much sense as saying that “free speech” means that you shouldn’t have to pay a fee to rent the hall for your lecture.

    1. SHG Post author

      Did someone say it was “solely an attitude of the left,” because if they did, let me know and I will go to their place of business and give them the stink eye.

  2. Noel Erinjeri

    If someone wants to publish a recipe for guacamole that involves peas, well, that’s their God-given right as an American.

    However, actually making such an abomination is conduct, not speech, and the perpetrators should be taken to the nearest public square and summarily shot. No trial, no cigarette, no blindfold, and don’t even wait for dawn.


    1. Mike G.

      What about split peas? When they’re cooked up, they look just like Guacamole and taste nearly the same.

    2. Patrick Maupin

      It is unusual to encounter one with expertise in both Mexican food and deterrence jurisprudence. Now that I have found you, I have a question of utmost importance I hope you can help me with.

      At Opal Divine’s, they served me “nachos” made with flour tortilla chips instead of corn chips. Since each chip was individually loaded with cheese and other toppings, I suppose there may be some merit to the argument that it is some sort of fusion food, but at a minimum, it should have been advertised as such — as some weird-ass open-faced quesadilla variant. This would have been sufficient warning; everybody knows that traditional quesadillas were bastardized so long ago that you never know exactly what you are getting with one of those, whereas nachos always have corn chips and cheese, and then may properly have other traditional toppings that complement the base.

      Calling this abomination a nacho is an affront to all that is just and proper. What is the recommended punishment for such a transgression?

    3. Fubar

      In the name of whatever is holy,
      Let them advocate fake guacamole.
      But what they deserve
      For attempting to serve:
      Force fed processed cheese food stromboli!

  3. Elpey P.

    Have we gone from the left eating the left to liberals eating liberals? This critique of someone for expressing support for “social justice” is like the rhetoric surrounding capitalism. Anticapitalists routinely ignore the concept of properly-regulated market forces and instead accuse anyone who calls themselves “pro-capitalism” as being in favor of unrestrained exploitation of people and the planet. Or the conflation of those who speak of “Christian values” to mean the humanist teachings of the gospels, with those who see it as the pursuit of theocracy. Or any number of other contentious and squishy hot-button terms.

    If someone is an outspoken and effective opponent of the latter in each case, it seems reasonable to give them the benefit of the doubt that their use of such a term doesn’t necessarily entail support of the excesses done in its name. I hear relatively few free speech champions who take it so far as insisting that laws against false advertising and posting kiddie porn are unconstitutional. Surely we can similarly conceive that people are able to speak of “social justice” values without insisting they trump everything else.

    1. SHG Post author

      It’s a problem when someone advocates for an outcome with which you disagree, but for reasons which you think to be flawed or, worse, counterproductive. But your final sentence puts the lie to it:

      Surely we can similarly conceive that people are able to speak of “social justice” values without insisting they trump everything else.

      Not only is it not “surely,” but there is nothing about the philosophy of “social justice” that suggests a principled view of constitutional rights, or any other rights they invent from moment to moment. I forgive you, as you’re not a lawyer, for using poor examples such as kiddie porn, as you are unaware of the exceptions to the First Amendment and their bases, but your not understanding what you’re talking about doesn’t allow you broader latitude to slough off vague and unprincipled claims.

      1. Elpey P.

        Mother always warned me , “It’s better if you avoid the kiddie porn.” I would tell her I was only talking about reposting it, but she only scowled and shook her head.

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