Speech - Free or Costly?
The darkness of America’s history is back. Hate speech is suddenly everywhere. Anti-Semitic taunts have sprung up at Cornell and other universities. Student demonstrators rallying in defense of the Palestinians, praise Hamas and miss the history behind the creation of Israel and persecution of Jews. Jewish students, business owners, and parents are on edge everywhere. The Palestinian cause and the language around it hardens. Suddenly there is no room for debate, for nuance.
The Israel-Hamas war has brought to the fore a new discussion of the role of free speech in a free society. College campuses, speakers, journalists - all of us - are experiencing what it is like to speak our minds and then be chastised, ignored, censured, threatened, or fired.
In an attempt to broaden my understanding, I have explored these issues on my radio show, called “Vermont Viewpoint.’’ My listeners have heard from the former U.S. Ambassador to Syria, an Israeli citizen from a Kibbutz in Israel, a Palestinian whose sister lives in Gaza, and the foreign policy advisor to Sen. Bernie Sanders. We have more exploration to go, including a much-needed history lesson.
I believe this exploration is essential. We must learn about the history, culture, politics, and religion of this part of the world. We have been ignorant of it for too long. It is so very sad that it takes the death of children and a war to wake us up to reality. But we must do it.
Will we get the words wrong? Yes. Will college kids take sides and call people names without thinking? Sometimes. Should they be thrown out of college or the country for their views? I think not.
The United States is strong enough to have these debates. When I was in college, African-American students and their allies occupied an administration building to demand recognition and respect. In our privileged, distracted laziness, many of us - including me - looked the other way. But those students were practicing something, learning something. They were engaging courageously in democracy.
No one explores this better than my favorite college professor at Amherst College, Austin Sarat. Sarat has taught law and political science for more than 45 years. In my day, he sprinted around the classroom during lectures, only to end up staring down at you to ask you the question. No warning. If you hadn’t done the reading, you were toast. He was and is brilliant, inspiring, and wholly intimidating. And that’s what a college professor should be.
Sarat is an expert on free speech and the law. There is no one I’d rather hear from on how these key elements of American society influence the sudden debate about speech in the Israel-Hamas war. His points are important to all of us if we are to understand this war and how we citizens can work our way through it, asking hard questions and answering them.
We have no other choice.
Herewith, Austin Sarat on the role of free speech and “civic courage.’’
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On October 13, the New York Times ran a front-page story about the reaction of prominent donors to the University of Pennsylvania’s response to the October 7 terrorist attack in Israel. The Times quoted one donor who said: “Like so many elite academic institutions, the leadership of UPenn has failed us through an embrace of antisemitism, a failure to stand for justice, and complete negligence in the defense of its own students’ well-being.”
Of course, the backlash about what universities said, or didn’t say, about that attack was not limited to the University of Pennsylvania. At Harvard, a coalition of student groups issued a joint statement about the October 7 Hamas attack in which they said “Today’s events did not occur in a vacuum. For the last two decades, millions of Palestinians in Gaza have been forced to live in an open-air prison. Israeli officials promise to ‘open the gates of hell,’ and the massacres in Gaza have already commenced.”
“In the coming days,” their statement continued, “Palestinians will be forced to bear the full brunt of Israel’s violence. The apartheid regime is the only one to blame.”
As the Harvard Crimson notes, that statement “quickly received widespread condemnation, including from professors and politicians who took to social media to rebuke what they said was an attempt to justify Hamas’s attack. Harvard Computer Science professor Boaz Barak called on the University to remove the organizations’ school affiliations. Former University President Lawrence H. Summers called the joint statement ‘morally unconscionable’ in a post on X.
In the wake of the statement and the University’s response, a “doxxing truck” appeared in Harvard Square displaying the names and faces of the Harvard students. Business leaders said that students who signed the letter should be blacklisted from employment.
One prominent New York law firm made good on that threat and withdrew job offers for three Ivy League students who apparently expressed support for Palestinians and sympathies for Hamas because, as the firm said, the views they expressed “are in direct contravention of our firm’s value system.”
Reactions like these are a reminder that free speech is very often not free.
Despite the ubiquitous, romantic descriptions of the role and importance of free speech in the pursuit of truth and in individual self-actualization, it is a risky and costly business for those who exercise that right.
For the students and universities now experiencing the post-October 7 backlash, the costs have been substantial. As they pay those costs, they have plenty of company. American history is replete with similar stories.
As Gregg Esterbrook explained more than two decades ago, the right to express oneself, especially on political matters, “is absolute. But there exists no right to exemption from the reaction to what is said.”
Easterbrook notes that “when the Bill of Rights was enacted, the First Amendment was construed mainly to shield speakers from imprisonment for anti-government views. That expression could have other costs—denunciation, ostracism, loss of employment—was assumed.”
He says that “many of the original patriots took enormous risks in the exercise of speech….” William Blackstone, the English legal theorist whom Easterbrook claims was most “closely read by the Framers, argued that the essence of free speech was forbidding prior restraint: Anyone should be able to say anything, but then must live with the aftermath. A citizen should possess an undoubted right to lay what sentiments he pleases before the public’… But ‘must take the consequences’ for any reaction.”
Easterbrook offers a more recent example of Blackstone’s maxim. In the aftermath of the terrorist attacks of September 11, 2001 comedian Bill Maher said that the terrorists “were brave” and that American pilots “were cowardly.” In response, “the advertisers who yanked support from his show were also within their rights: That A may speak hardly means B must fund A’s speech.”
The costs of free speech to those who exercise that right are especially great when their speech is seen by others as worthless, offensive, or harmful. But tolerance of that kind of speech is, the political theorist George Kateb writes, the real test of our commitment to freedom of speech.
Today, speech doesn’t have to be worthless, offensive, or harmful to be very costly to speakers. Mere disagreement may be enough to prompt shaming or shunning of those with whom one disagrees.
Impugning the motives and threatening speakers with whom we disagree is now a common phenomenon. Threats can come from either side of our deeply polarized polity and are directed against people who deviate from the orthodoxy that prevails among those who oppose them.
Katherine Keneally, a senior researcher at the nonprofit Institute for Strategic Dialogue argues that violent language and threats of violence as a response to someone’s exercise of free speech have “migrated from the fringes of the internet to become a far more common part of daily life…. It is not very uncommon by any means.”
Columbia University Law Professor Timothy Wu accurately portrays the current speech environment and the costs of free speech. “The First Amendment,” Wu says, “was brought to life in a period, the twentieth century, when the political speech environment was markedly differently than today’s. The basic presumption then was that the greatest threat to free speech was direct punishment of speakers by government.”
Now, in contrast, those “who seek to control speech use new methods that rely on the weaponization of speech itself, such as the deployment of ‘troll armies,’ the fabrication of news, or ‘flooding tactics.’”
Those who seek to impose costs on speakers, Wu says, “seek to humiliate, harass, discourage, and even destroy targeted speakers using personal threats, embarrassment, and ruining of their reputations. The techniques used to silence opponents ‘rely on the low cost of speech to punish speakers.’”
In Wu’s view, the emerging methods of speech control “present a particularly difficult set of challenges for those who share the commitment to free speech articulated so powerfully in the founding—and increasingly obsolete—generation of First Amendment jurisprudence.”
I think Wu gets it right. As anyone who has ever been harassed or threatened because of something they said knows, that jurisprudence offers little comfort or protection.
In the aftermath of 10/7, people at the University of Pennsylvania, Harvard, and elsewhere have learned the painful lesson that their speech can be both free and very costly. They learned that speaking freely has never been, and is today not, for the faint at heart.
As Kateb says, it requires “civic courage.”
We would all be well served to remember not just the virtues of free speech, but also its substantial costs. In our time, the marketplace of ideas can be a particularly dangerous and disturbing place to be.
Note:
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence at Amherst College. He can be followed here.
My radio show on WDEV in Vermont can be found here.
My Conflict of Interest podcast can be found here.
