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What is Freedom of Speech?

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As a citizen of China, one of the most oppressive regimes in the world, I must say that I am disappointed by my fellow liberals’ indifference toward free speech. My experience tells me that whether or not citizens have the right to free speech is the most important distinction between a democracy and a dictatorship. To give you an idea of what it is like to be a Chinese citizen, for the first 18 years of my life, my typical class schedule included a “Politics and Thoughts” class that taught Communist Party propaganda, a History class that taught alternative history carefully censored and rewritten by the Communist Party, and a literature class that included only authors and articles the Party deemed appropriate. I was required to memorize key speeches and principles invented by Party leaders in order to pass the ideology test, in which if anyone dared to write anything negative about the Communist Party, he or she would automatically get a zero and not graduate.

In China, online forums and social media are carefully monitored so that “counter-revolutionary” comments are promptly removed and perpetrators are punished. Human rights lawyers and activists are routinely jailed in secret locations or sent to “forced labor camps” for their beliefs and activities. It isn’t that life is insufferable for normal people without free speech; the brilliance of censorship is that it makes you think only one kind of view can possibly be right, so you don’t feel the need to protest, dissent, or even think.

In high school, during a summer at Yale, and my first time in the United States, I took a human rights class and a legal philosophy class. For the first time in my life, I read the Universal Declaration of Human Rights, which proclaims that “everyone has the right to freedom of opinion and expression.” I read John Stuart Mill’s “On Liberty” and his belief that everyone should have the absolute right to free speech. I read the landmark Supreme Court case, National Socialist Party of America v. Village of Skokie (1977), in which a Jewish lawyer of the American Civil Liberties Union defended the Nazi Party’s right to march in a predominantly Jewish village. I learned about the Tiananmen Square Massacre, on which information was censored in China and where brave college students fought for democracy. They fought for freedom of speech and thought only to face the crackdown of an illiberal regime stuck in its own ways. I learned that liberalism means tolerance and commitment to our inalienable and indivisible rights, no matter what powerful people say, and I began to proudly call myself a liberal. Imagine my surprise when I discovered that most of my liberal friends at Swarthmore not only advocate violence against those who hold a different view, but also believe that freedom of speech is somehow a “conservative value.”

Most debates about free speech these days are simply confused. The kind of knee jerk reaction that many liberals display toward claims of free speech is largely a response to the hypocrisy of some conservative politicians, who, while arguing that liberals are stifling free speech on campus, are perfectly willing to withhold funding from colleges they deem too “radical.” Free speech as a constitutional right is different from the kind of “campus free speech” for which such conservatives are clamoring. Unfortunately, many liberals fail to draw the distinction and end up losing faith in the doctrine of free speech in general. Even more unfortunate are attempts to equate free speech with oppression or even white supremacy. Without freedom of speech, only those in positions of power can speak.

Freedom of speech as a legal, constitutional, and human right is important because it is the bedrock of democracy. Every attempt to undermine this right risks undermining the foundation of democracy and making the U.S. more like China or Russia. You may think I am being alarmist, but plenty of examples exist where free speech restrictions in other liberal democracies have backfired. After a German comedian accused the Turkish President and Dictator Recep Tayyip Erdoğan of oppressing minorities and having sexual intercourse with farm animal Erdoğan sued the comedian with the support of German Chancellor Angela Merkel, under an old German law. In France, after the terrorist attack in 2015, a Muslim was sentenced to a year in prison for shouting “I’m proud to be Muslim. I don’t like ‘Charlie’ [“Charlie Hebdo,” a far-left French magazine previously attacked for mocking Islam]. They were right to do it.” As Howard Gillman, the Chancellor of UC Irvine, argues, “[d]emocracies are more fragile things than we might like to believe.” Free speech is important partly because it allows political minority groups to voice their opinion without fear of retribution.

The constitutional right to free speech, however, is not absolute. Child pornography, obscenity, fighting words, libel, and incitement, for example, are not protected by the First Amendment. But these exceptions are meant to be exactly that – exceptions. Some have argued that hate speech is not free speech. It is factually incorrect as a descriptive claim, and practically and legally problematic as a prescriptive claim. Since the issue of hate speech matters deeply to many skeptics of free speech, I’d like to set the record straight here. In R.A.V. v. City of St. Paul (1992), a unanimous decision of the Supreme Court declared unconstitutional a law that banned the placement of a burning cross or Nazi swastika on public and private property. The majority reasoned that the law was unconstitutional because it only prohibited particular kinds of fighting words that involve “race, color, creed, religion or gender.” In other words, the law constituted both viewpoint and subject matter discrimination. Even though in Beauharnais v. Illinois (1952) the Supreme Court upheld a similar law because the Court considered speech targeting racial or religious groups to be “group libel,” as constitutional law scholars Kathleen Sullivan and Gerald Gunther explain, most judges no longer believe that Beauharnais is good law.

Should the government be allowed to ban hate speech as many free speech skeptics wish? I do not believe this is a good idea. While it is permissible for the government to prohibit speech that incites imminent violence (see Brandenburg v. Ohio (1969)), or increase penalty for hate crime (see Wisconsin v. Mitchell (1993)), as the Court argues in R.A.V., any specific prohibition on hate speech involves content-based restrictions. If, for the sake of argument, the government is allowed to ban speech based on its content, then who is to stop right-wing politicians from passing laws that prohibit speech, for example, that advocates for the violent overthrow of capitalism or mocks Christianity? As the ACLU argues, “free speech rights are indivisible. Restricting the speech of one group or individual jeopardizes everyone’s rights because the same laws or regulations used to silence bigots can be used to silence you.” Of course, the Court can recognize a hate speech exception to the First Amendment, but as The Economist argues, such an exception will only encourage ideologues to harass those who hold a different view. In India, a psychologist and well-known public intellectual was charged under the country’s hate speech law for making a point about corruption and lower-caste politicians. He has since said that because of the incident, he “will have to be careful now.” Similarly, a hate speech law may allow Trump to sue Clinton if she had instead said Evangelical Christians or white Trump supporters belong to a “basket of deplorables.” I am not arguing that instituting a hate speech exception is constitutionally impossible, but I suspect it will either be too broad so as to amount to censorship, or too narrow so as to be utterly indistinguishable from other exceptions such as fighting words.

Speech on campus, of course, is an entirely different matter. Public colleges are required by the Constitution to provide First Amendment protection for everyone. Private colleges like Swarthmore, on the other hand, should protect the most vulnerable members of their communities, but they should also promote diversity of political opinion and speech that has intellectual value. The decision to allow or disallow certain speech is ultimately a balancing act, but colleges should not, for example, disinvite conservative speakers merely because their viewpoints are unpopular or offensive. (I do not, however, believe Milo Yiannopoulos deserves a platform on campus, because I do not believe his speech has any value at all.) Some, however, have argued that hate speech deserves a place on campus. Gillman and UC Berkeley Chancellor Nicholas Dirks, for example, argue that only by subjecting hate speech to examination can we expose the lie and bigotry that it is. I am sympathetic to such arguments even though I believe the line should be drawn where students might begin to feel unsafe.

There is another issue: do some students, because of their “privileges,” have no right to discuss certain topics or issues? There is a strong case to be made that those who belong to groups that traditionally have less voice should be given more voice to enrich the “marketplace of ideas,” but I think the answer to this question should be no. A friend of mine told me that when his public policy class was discussing whether catcalling should be made a felony, he was told by a female student that his view does not matter because he is not a woman. However, as a low-income and minority student, he knew that such laws disproportionately affect minorities. Regardless of whether his view was correct, he was capable of making a valuable contribution to the discussion. The point is, in the context of campus speech, more speech is almost always better than less.

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