Who Wins if Free Speech Loses?

By Theodore Kupfer

Saturday, August 26, 2017

Sloppy thinking usually isn’t a criminal offense. Then again, Sarah Jones at the New Republic has written a essay called “How Donald Trump Poisons Free Speech.” Jones, the magazine’s social-media editor, asks the empirical question, “Is it ever possible to define, and then fairly restrict, dangerous speech?” She winds up answering a different, normative one: “Free speech isn’t a pure and abstract good,” Jones says, and “no law, even when it is enshrined in the Constitution, can alone justify an absolute position on free speech.” If Jones, a leftist (don’t call her a liberal!), had stuck to answering the question she asked, she might have arrived at a different conclusion. For the very same “absolutism” that Jones thinks should be abandoned is what stops government officials such as Donald Trump from declaring ideas such as hers to be dangerous and throwing their exponents in jail.

But I don’t need to tell her that. No leftist can forget Schenck v. United States or the American public’s sundry red scares, and Jones is apparently intimately familiar with the history: To support her proposition that free-speech “absolutism” needs to be “re-examined,” Jones borrows logic from the Supreme Court’s opinion in Schenck. In short, the political climate is what it is, and white-supremacist ideas are what they are; consequently, the expression of those ideas carries a clear and present danger of criminal activity. Where Oliver Wendell Holmes said in Schenck that “the character of every act depends upon the circumstances in which it is done,” Jones puts her own riff on it: Free speech, “like all civil liberties, is shaped by the context in which it occurs.”

White-supremacist terrorism sometimes follows white-supremacist demonstrations, and Jones draws a straight line between the speech and the violence. For one, the alt-right is “radicalizing whites online.” They also tend to to carry guns. There’s even evidence that “rhetoric that dehumanizes and stigmatizes” causes hate crimes. All of this, Jones says, means that “speech can harm” when it comes from Nazis. The recent decision by the ACLU not to represent armed protestors, the apparent occasion for her piece, is a logical consequence of that argument.

It’s clear that Jones is sympathetic to the ACLU’s newfound reticence to defend two rights at once. She’s also sympathetic to its critics, who contend that the organization’s still-expansive reading of the First Amendment needs a revision. And while the activity of legal advocacy groups has consequences for policy and the law – consider the ACLU’s history — Jones is circumspect about what exactly those should be.

That’s ultimately to the detriment of her fellow comrades on the left. An alternative reading of the First Amendment, one in which speech only deserves protection if it accords with a holistic picture of who is and isn’t marginalized, would be ripe for abuse precisely because of today’s political climate. Sure, the front of white nationalism continues to advance, which Jones says “chills free speech for those on the left.” But a more direct way to squash free speech for those on the left would be for free-speech absolutists to listen to Sarah Jones. If the ACLU stops defending armed protestors, who will defend the John Brown Gun Club or antifa? If the government starts deciding what speech is dangerous, who will really be empowered?

The obvious answers to these questions might have convinced Jones to spike the essay if she considered them. Unfortunately, she merely pays lip service to the idea that “attempts to define dangerous speech” can lead to “future acts of censorship.” She never seriously engages with the sundry examples of that happening in reality, instead pivoting to say that actually, free speech hurts oppressed people (a notion that is, let us say, dubious). None of those examples — examples that would quickly become of interest to leftists were Trump to take Jones’s advice — make it into her piece. Neither does the idea that Donald Trump’s, or Jeff Sessions’s, or Neil Gorsuch’s definition of dangerous speech might not be isometric with Sarah Jones’s.

She seems to be groping in the direction of an argument from morality: Free speech isn’t good because it allows for the proliferation of immoral ideas, the sort of which are inherently violent. The problem is that some people still think the expropriation of private property and the re-education of kulaks is morally correct, and there were points in the not-so-distant past that the advocacy of those ideas paved the way for immoral and violent outcomes. But Jones, I presume, doesn’t want leftists to be thrown in jail; it may be she thinks Trump prefers Lucaks to Kolakowski.

Jones does identify a troublesome quirk of the pro-speech position: that it can seem relativistic, or worse. It shouldn’t be hard for any of us to say that advocating white nationalism is morally wrong, nor should verbal gymnastics accompany the declaration that, yes, the ethnic cleansing Richard Spencer dreams of is inherently violent. Of course, that some ideas are evil is no excuse to abandon prudent policy, but it’s a qualification that generally ought to be acknowledged. If nothing else, then, this article can teach honest defenders of free speech not to concede the moral high ground.

An uncharitable reading would assume that Jones forgot the question she set out to answer. Perhaps, though, something does bridge the gap between her question — “is it possible?” — and her answer — “it’s advisable”: an assumption that the people defining and restricting dangerous speech will ultimately be her people. In an era when a supposedly democratic form of socialism is ascendant on the left, it’s worth interrogating the ideas circulating there at length; one of them, make no mistake, is that the criminalization of political speech can be justified. (No movement is monolithic, of course, and some leftists have pushed back.) That Sarah Jones supports giving right-wing authorities the power to criminalize speech doesn’t bode well for her right now. But the proliferation of authoritarianism on the burgeoning socialist Left doesn’t bode well for any of us. Try that for an “unsettling reality.”