America's Anti-Free Speech Movement Forces Us Again To Choose Between Our Rights And Our Rage
As the nation heads into the July 4th holiday, we have rarely been more divided as a people. Ironically, we are still debating the core values that define us, particularly the right to free speech. Indeed, “debate” hardly captures the rising anger and animosity from campuses to Congress. That is also nothing new.
While I have called this “an age of rage,” it is not our first.
The United States was born in rage.
Roughly 250 years ago, a group calling itself the Sons of Liberty boarded three ships and dumped almost 100,000 pounds of English tea into the Boston harbor. The “Boston Tea Party” is still celebrated as an act of defiance that helped spark the American Revolution.
It was also an act of rage, a key moment that is the focus of my book out this week, “The Indispensable Right: Free Speech in an Age of Rage.”
As a nation, we have gone through almost cyclic periods of unhinged rage, including periods of what I call “state rage.” The first victim has always been free speech, including in our current age of rage. Indeed, this is arguably the most dangerous anti-free speech period in our history.
“The Indispensable Right“ is a reference to the description of Justice Louis Brandeis of core value in our nation. It is also a reference that captures our inherent conflict with free speech. Brandeis and his colleague Oliver Wendell Holmes are enshrined as civil libertarians who became the “great dissenters,” arguing for rights that remained unrealized for decades.
Yet, these two jurists would support some of the most abusive denials of free speech in our history. Holmes would supply the single most regrettable line of any opinion: that free speech protections do not allow citizens to shout fire in a crowded theater. That paraphrasing of his decision in Schenck v. United States continues to be used today as a rationalization for censorship and limits on free speech.
On free speech, Brandeis and Holmes were no heroes. Our true heroes are detailed in this book, a collection of true dissenters — anarchists, unionists, communists, feminists and others who risked everything to fight for their right to speak.
George Bernard Shaw once said “a reasonable man adjusts himself to the world. An unreasonable man expects the world to adjust itself to him. Therefore, all progress is made by unreasonable people.”
These are stories of wonderfully unreasonable people like Anita Whitney, a feminist who left a family of privilege to fight for social and political justice. The descendent of a family on the Mayflower and niece of Supreme Court Justice Cyrus W. Field, Whitney defied threats of the police that she would be arrested if she spoke in California in 1919 in Oakland.
With police standing around on stage, she refused to be silent and spoke against the lynchings of Blacks occurring around the country. Her abusive conviction would ultimately go before the court (with Brandeis and Holmes) and they would vote to uphold it.
Time and again, this country has abandoned our free speech values as political dissidents were met with state rage in the form of mass crackdowns and imprisonments. It is an unvarnished story of free speech in America and for better or worse, it is our story.
Yet, we have much to learn from this history as this pattern now repeats itself. The book explains why we are living in the most dangerous anti-free speech period in our history.
In the past, free speech has found natural allies in academia and the media. That has changed with a type of triumvirate — the government, corporations, and academia — in a powerful alliance against free speech values.
Ironically, while these groups refer to the unprecedented threat of “fake news” and “disinformation,” those were the very same rationales used first by the Crown and then the U.S. government to crack down on free speech in the early American republic.
The difference is the magnitude of the current censorship system from campuses to corporations to Congress. Law professors are even calling for changing the First Amendment as advancing an “excessively individualistic” view of free speech. The amendment would allow the government to curtail speech to achieve “equity” and protect “dignity.”
Others, including President Biden, have called for greater censorship while politicians and pundits denounce defenders of free speech as “Putin lovers” and “insurrectionist sympathizers.”
Despite watching the alarming rise of this anti-free speech movement and the rapid loss of protections in the West, there is still reason to be hopeful.
For those of us who believe that free speech is a human right, there is an inherent and inescapable optimism. We are wired for free speech as humans. We need to speak freely, to project part of ourselves into the world around us. It is essential to being fully human.
In the end, this alliance may reduce our appetite for free speech but we will never truly lose our taste for it. It is in our DNA. That is why this is not our first or our last age of rage. However, it is not the rage that defines us. It is free speech that defines us.
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Jonathan Turley is a Fox News Media contributor and the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster, June 18, 2024).