Question: What is the biggest threat to free speech in America today?

Dennis Baron: You’ve heard of Banned Books Week? It’s becoming more like Banned Books Year. The biggest threat to free speech today is the attempt by a number of conservatively-led states to ban discussions of so-called divisive concepts in schools—from preschool through to university—and to remove books dealing with such concepts from school and community libraries. Forbidden topics include gender, race, slavery and negative portrayals of American history.

We’ve been here before: Congress banned speech critical of the government way back in 1798, and anyone protesting the war in 1918 could easily find themselves in jail. Mention communism in the 1950s and you could lose your job. States banned teaching about evolution in the 1920s  and even today some states reject current knowledge by banning certain topics or compelling speech about “both sides” of everything from the Big Bang to the Civil War to the Holocaust, even when a topic like the Holocaust has only one side.

History shows us that freedom of speech is a fluid and evolving concept that requires continual defense. It’s always under threat. And it’s never absolute. Taboos change, but there will always be some forbidden words. Topics change, but there will always be some that have negative consequences. Some of those consequences are social, others are legal. And there will always be some speakers who disregard the consequences and violate the taboos.

Q: The Internet and social media have radically changed what communication looks like and how fast and widely speech can be heard and shared. Can the laws around free speech keep up? 

Baron: When it comes to communication technology, the law is always playing catch-up. Once writing became an important communication tool, authorities sought ways to control it by limiting who could write, what they could say, and who could read it. Writers have always resisted such controls, finding ways to beat the censors. In response, censors found new ways to control speech. Then the cycle continues: rinse and repeat. Now, with the Internet, social media, and smartphones, everyone’s a writer, which means governments, pressure groups, religious authorities, self-appointed watchdogs, educators, and parents seek tighter regulations about who can say what online and to whom. What should be done to control hate speech? To counter or suppress misinformation? Fraud? Incitement and insurrection? Controlling online speech isn’t easy, particularly in liberal democracies where you can’t just flip a switch to shut the network down. Plus, whatever government or corporate regulations are put in place, there are sure to be speakers, writers and free-speech absolutists who will resist such controls, and hackers to help them do it. The laws will struggle to keep up. They’ll always be at least one step behind the technology. But the effort must be made to balance the rights of speakers against the public interest.

Social Media and the Cold War Around Free Speech

Q: How has the strengthening of Second Amendment rights impacted citizens’ First Amendment rights? Can citizens fully enjoy their right to free speech when someone who disagrees with them is holding an AR-15? 

Baron: The pen may be mightier than the sword, but when one side brings guns to a debate, the other side is likely to stop talking. Bank robbers know this. So do dictators. All parts of the Constitution carry equal weight, and that means the First and Second Amendments are not supposed to cancel each other out. But with more guns in more places, the Second Amendment is likely to trump the First. Going armed in public will enable the “Second Amendment veto,” and its impact on free speech could be fatal.

Q: You write about how powerful speakers weaponize free speech to suppress minority voices. Can you explain? Is this a problem on both sides of the political divide?

Baron: Although “both sides of the political divide” may wish to ban certain kinds of speech, it’s clear that today in the US, censorship from the right poses a greater danger. It’s well-organized, well-funded and operates on a national level, while similar efforts from the left to compel or limit speech are haphazard, local, relatively ineffective and generally unfunded. Who gets more press coverage? The right. Who does more damage? The right. Who puts more conservative judges, legislators and school boards in place to enforce speech bans? The right. Yet who claims they’re being silenced? The right, who manage to find a voice on every major media platform to complain about the “cancel culture” that they themselves are trying to legislate. And again, let’s be clear, in order to short-circuit any whataboutism: I’m talking about laws that compel or limit speech in liberal democracies like the US and the UK, not the private groups in these countries attempting to control their members’ speech.

Q: Forty-five years ago, the American Civil Liberties Union (ACLU) defended the First Amendment rights of the KKK in Skokie, and in 2017, they defended the Proud Boys and affiliated right-wing groups marching in Charlottesville. How have the issues evolved over time, and do you think it’s a tenable position? 

Baron: In 1934, the ACLU defended the right of American Nazis to speak at Madison Square Garden. They argued that everyone has the right to speak, and if that speech causes disruption or violence, then the police will intervene. In Skokie, an Illinois court agreed with that argument and reluctantly let the Nazi march go forward. Again in Charlottesville, in 2017, the ACLU relied on this reasoning, noting that the “Unite the Right” demonstrators had signed a promise that they wouldn’t be violent. The legal principle the ACLU was defending is called the “heckler’s veto”—the government may not ban speech simply because that speech might lead to violence. The difference between Skokie and Charlottesville was that the white supremacists who came to Charlottesville were armed, and the police did not intervene to prevent the violence that erupted. Clearly, now that the members of an audience may be armed, the rise of the “Second Amendment veto” requires us to rethink our response to the “heckler’s veto.” After Charlottesville, the ACLU decided that it would no longer defend speakers bent on inciting violence.

Q: People throw around the idea of free speech quite liberally these days, complaining about their First Amendment rights being trampled whenever there are negative consequences to their speech. How do you distinguish between the right to free speech versus the right for private individuals to react to that speech?

Baron: My book is about government speech restrictions. It’s not about the constraints on speech imposed by families, social groups, private organizations, political and religious groups, or businesses. There are plenty of such private restrictions—some of these social pressures we accept, often without thinking, because certain speech constraints facilitate interaction, like saying please and thank you, or acknowledging someone’s pronouns. Others make headlines, like when a group bars a speaker who’s racist, Islamophobic or antisemitic. To put it simply: in the US, the government can’t stop you from speaking (although there are always exceptions, and that’s why you should read this book). But in many cases your family can shut you up. Your friends can. Your club can. Your boss can. Failure to comply can bring a punishment, ostracism, or expulsion. Or it could cost you your job. Resistance is futile—and yet, we all know people who do resist. “It’s a free country. I can say what I want.” That’s fine, so long as you remember that freedom of speech won’t protect you from the consequences of speaking.

Q: The Supreme Court did not begin taking up First Amendment cases until the early 20th century. Why was that?

Baron: The First Amendment says “Congress shall pass no law” abridging freedom of speech. But at the time that the amendment was ratified, in 1791, there were lots of speech prohibitions that were not seen to abridge that constitutional right: laws against obscenity, profanity, defamation, incitement and threats, to cite a few. First Amendment defenses proved futile against convictions under the Alien and Sedition Acts of 1798, which banned criticism of the government. Fruitless free speech arguments surfaced again during the Civil War, as the government sought to suppress antiwar sentiment in the Union. But it was not until World War I, when opposition to the war, and to the draft, became even more vocal, that the Supreme Court got involved—essentially ruling that speech permissible in peacetime could be banned in times of war. Not exactly a free-speech victory. It wasn’t until well into the 20th century that the Court started to protect more and more political speech, gradually expanding protections for other types of speech as well.

How the American Public Understands—and Misunderstands—Free Speech

Q: What do you think the next 20 years will look like vis-à-vis free speech? Will the current Supreme Court change the trajectory of the First Amendment? 

Baron: Since the middle of the 20th century, the Supreme Court has positioned itself as a strong protector of free speech. It’s had a tendency to defend right-wing, conservative, even racist and fascist speech, and then apply that defense across the broader spectrum of opinion. Still, there have been some clear victories for left-wing speech, like Watts v. US, Cohen v. California, affirming antiwar protests, and NY Times v. US, the Pentagon Papers case. But the Court does have a history of expanding rights and then limiting them, and there are some indications that the current Court could do some backtracking on speech. In Tinker v. Des Moines (1969), the Court declared that teachers and students don’t leave their First Amendment speech protections at the schoolhouse gate. But Justice Clarence Thomas has argued that, historically, students had no free speech rights, and he’s indicated that Tinker should be overturned. The First Amendment rights of teachers have not been tested in the Supreme Court, and conservatives like Florida Governor Ron DeSantis have recently argued that the government may limit the speech of teachers in public schools and universities because they are state employees. Justice Samuel Alito has suggested that requiring the use of inclusive language violates the First Amendment protection against compelled speech: you can’t be forced to say something you don’t believe in.

And there’s this thorny problem: the First Amendment covers both free speech and freedom of religion, setting up a scenario that can pit these two protections against one another, for example, when conservatives object to antidiscrimination legislation by arguing, for example, “Making me say your pronouns violates my deeply-held religious beliefs.” We have yet to solve the problem of how to balance free speech against the need to be protected from damaging speech. And that’s the paradox of free speech. Yes, it’s a free country, but we can’t always say what we want.

[Anton Schauble edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.