Now More than Ever, Free-Speech Dogma Is Worth Defending

By David Harsanyi

Tuesday, March 17, 2020

‘Two things form the bedrock of any open society,” Salman Rushdie once noted, “freedom of expression and rule of law. If you don’t have those things, you don’t have a free country.”

Well, in a recent Wall Street Journal op-ed, “How Free Speech Dogma Failed Us in Charlottesville,” Michael Signer, the former mayor of Charlottesville, makes the argument that restricting speech is necessary for the rule of law.

The first problem with Signer’s case is the premise itself. Sorry, but we have no uniquely pressing need to “keep pace” with violent or threatening “political disruptions.” Americans live in era of relatively little political violence. A person doesn’t even have to go back to the brutality of  the1860s and 1870s to understand this; they can just look back at the 1960s and 1970s, or maybe even the 1990s.

When a few hundred Nazis, in a nation of 350 million, get together and march down Main Street, that isn’t a particularly compelling reason to rethink our rights. In 1939, well after Hitler’s tyrannical intentions were known, 20,000 Nazi sympathizers filled up Madison Square Garden. There will always be extremists in America. Which is one reason why we must always do our best to safeguard natural rights.

Signer, though, seems to feel differently:

With white nationalists chanting “Jews will not replace us” in the streets of Charlottesville and far-left demonstrators vandalizing college campuses in response to speakers they don’t like, we need First Amendment rules that return to common sense, not high-minded ideas that seem sound on paper but fail to keep us safe and free in practice.

Far-left demonstrators’ “vandalizing college campuses” in response to speakers they dislike are attempting to suppress speech, not engaging in speech. They are criminals whose actions make a great argument for free-speech absolutism and the rule of law. Does Signer believe that we should restrict speech to pacify the would-be criminal censor or placate the would-be bigot and murderer? That would set a destructive precedent for reasons beyond protecting speech. The Nazi who rammed his car into a crowd at the “Unite the Right” rally in 2017, murdering a woman and injuring dozens of others, was sentenced to over 400 years in jail, not given a say over how we mete out speech rights.

The bottom line is that once we start creating “rules” for speech — once we abandon the principled protection of content-neutral expression — our words will be subjected to the vagaries of politics, the biases of voters, and the interpretations of bureaucrats. If we let subjective rules govern words, we will have undermined the entire point of constitutional governance and the Bill of Rights.

It shouldn’t need to be said that innocuous and uncontroversial speech doesn’t require defending. Once we normalize the idea that our opinions must find a consensus to be legal, we have corroded constitutional protections in an irreparable way.

Signer himself offers an excellent example of the inherent problems with empowering politicians to be arbiters of political expression. After the Charlottesville riot, Signer went on cable news and blamed Donald Trump and Republicans for emboldening “organized racists who caused the racially charged violence in his city over the weekend.”

Well, using Signer’s standards, Trump and his supporters could be banned from political gatherings in Charlottesville. So could anyone protesting the dismantling of Confederate statues. What if one day in the future a majority in his community decides to start demolishing statues of slave-owning town founder Thomas Jefferson? Will he ban the resulting protests?

Progressive lawmakers have often tried passing laws to make it difficult for protesters to picket abortion clinics. How long before pro-life speech is labeled a dangerous impediment to “health care” and public safety?

Liberal groups have long smeared organizations they dislike as “hate groups.” The Southern Poverty Law Center, for example, throws in civil-rights groups such as the Alliance Defending Freedom with white-supremacist agitators such as the Ku Klux Klan. How long before religious freedom, already declared hateful by so many on the left, is off limits?

How long before Jewish communities are allowed to ban gatherings led by Ilhan Omar, Linda Sarsour, or Louis Farrakhan? What if enough people are convinced that the press is an “enemy of the people?”

Signer, naturally, brings up Justice Robert Jackson’s famous dissent in 1949’s Terminiello v. City of Chicago, in which Jackson cautioned that the Bill of Rights shouldn’t be turned “into a suicide pact.” The “suicide pact” dissent remains a favorite of censors, gun-controllers, and others frustrated by the unpliable nature of our fundamental liberties. Yet after the majority in Terminiello found a Chicago “breach of peace” ordinance banning speech that “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance” to be unconstitutional, Chicago did not turn to fascism. The speech at issue did not cause riots or public unrest. None of us would even be familiar with the name of the disgraced anti-Semitic priest Arthur Terminiello if it weren’t for Jackson’s destructive attack on natural rights.

Even if we conceded for the sake of argument that free speech failed Charlottesville on a single day in August of 2017, it would be absurd to refer to the neutral view of speech enshrined by the Bill of Rights as making that document a “suicide pact.” There are millions of other places and thousands of other days where content-neutral protection of speech hasn’t failed America. On the first anniversary of the “Unite the Right” rally in Charlottesville, only two dozen bigots showed up for a second rally in Washington, D.C. — they had been denied a permit by Charlottesville authorities — and they were met by thousands of counter-protesters.

So Signer’s claim that municipalities are handcuffed by free speech is risible. It’s also irrelevant. Signer uses words such as “safe” and “safety” a dozen times in his column. The right to protest peacefully is not contingent on the actions of strangers who break the law. Just because anti-capitalists are known to occasionally throw rocks through the windows of coffee-shop chains doesn’t mean we should be free to ban every anti-capitalist activist in the country from exercising his First Amendment rights.

Until recently, we agreed on these ideals. The dogma of free speech was perhaps the only one most Americans still claimed to venerate. But that may not be the case much longer. Our support for the First Amendment seems to be waning, and if that continues, we will come to regret it.