Ira Glasser responds — Who has the power to decide? That is the free speech question
Yesterday’s post, Abandoned? The Liberal Flight from the First Amendment, drew a variety of responses e-mailed to me. Some thought I was unduly harsh in my opening comments re conservatives and repression, while others thought I was unduly harsh on liberals. Some even thought I wasn’t being serious . . . almost as if I were doing my own variation of an old Orson Welles radio spoof. Then there were others like Ira Glasser, the former executive director of the ACLU (1978 to 2001), who kindly offered the commentary below, which I am happy to post in the spirit of robust discussion.
I write in brief response to your recent post entitled: “Abandoned? The Liberal Flight from the First Amendment.”
The key question that many “progressives” have been mostly ignoring is the question of power: Regardless of intellectual standards developed by academics to distinguish between speech that they believe has only negative or minimal value to the democratic experiment, and which therefore they believe can be distinguished from other speech and safely restricted, the only important question is who will decide how such standards are applied, and to whom.
If “offensive” speech or “hate” speech were legally unprotected by the First Amendment, whose speech would be restricted in the real world under that standard would differ depending on who had the power to decide. Donald Trump or Richard Nixon or Rudy Guiliani or Joe McCarthy would decide very differently from, say, the head of the ACLU, or the NAACP, or Catherine MacKinnon. But it is the former group, or people like them, who will more often have that power in the real world than the latter, or people like them.
The Jewish students in England in the ’70s who enthusiastically supported a student-initiated ban on racist speech were shocked when, some years later, a Zionist speaker they wanted to hear was banned under the policy they had supported. It turned out that the people with the power to decide at the time believed that Zionism was a form of racism. So the Zionist speaker was banned. The Jewish students who had supported the ban on racist speech did not get to decide.
In the ’90s in America, many black students on college campuses supported hate speech bans. But if such bans had existed, and survived constitutional challenge, during the ’60s, Malcolm X and Eldridge Cleaver, not David Duke, would have been the most frequent victims. This, of course, was not the result the black student advocates of bans on hate speech had in mind.
Speech restrictions are like poison gas, a weapon that seems seductively powerful against one’s enemies, until the political winds shift and blow the gas back at you.
At many universities today, where “progressive” faculty and administrators have decisive power, this question doesn’t arise often enough, but in the real world it is inescapable. Academics can make arguably justifiable analytic distinctions between good speech and bad, but those distinctions cannot hold in the real world where the power to decide how they are applied is often in the hands of one’s political enemies.
At the beginning of our nation, the prevailing view even among many civil libertarians of how the First Amendment should work included the belief that false speech did not deserve such protection. But as the Sedition Act of 1798, which made “false, scandalous and malicious” speech a crime, showed, the power to target disfavored political speech as “false, scandalous or malicious” (and at the very least put it on trial, and the way that law was used to prosecute and imprison political critics of John Adams), persuaded many that in order to protect true speech, false speech had to be protected as well. This was because in the world of politics and power, the ability to label disfavored speech as “false” or “malicious” would inevitably spill over onto precisely that speech the First Amendment was designed to protect, including their own.
It seems that many of today’s “progressives” have not yet learned that lesson. The ACLU has for nearly a century been the major organizational source of such learning; to the extent it transforms itself from such a source into just another “progressive” organization, the cause of free speech will be grievously diminished.