The First Amendment may be safe, but free expression is not
Free speech is under attack today, but more in spirit than in law—and that’s the problem. The First Amendment, which precludes the government from abridging a citizens’ right to speak their mind, doesn’t apply to the reactions citizens have when others offer unsavory opinions. That means the core sensibility the Founders wanted to protect—the culture of free expression—is vulnerable not only to unconstitutional attacks from the state, but from what are perfectly permissible attacks from citizens and employers.
That problem can’t be solved in the courts—it needs to be addressed in the public square. And at the moment, the spirit of free speech has too few champions.
Let’s be clear: There are plenty of noxious, racist and objectionable ideas floating around in America today. Few believe that the Justice Department should prosecute those who articulate those points of view—legal restrictions would be clear violations of the First Amendment. But legal prohibitions aren’t the only barriers to free expression.
Set the Constitution aside for a moment: At what point does the social or economic cost of expressing an idea others find unsavory become so high that democratic discourse is fundamentally undermined? At what point does fear of being a social outcast suffocate the democratic discourse that is the lifeblood of democracy?
President Trump skirted a line ahead of his rally in Tulsa, Okla. By suggesting that “protesters” would be treated differently than they had been treated in other cities, he didn’t specify how things would be different—or who would do the treating. Would it be government officials? Would it be counter-protesters acting of their own volition?
As president, many will assume he’s threatening to use law enforcement to stifle free speech—a clear First Amendment violation. But we shouldn’t fall down the rabbit hole of legal wrangling. The issue is whether people who oppose the president’s agenda should, absent government interference, be able to voice their opinion in the public square—and Trump seems to be saying no. That’s a problem regardless of the legal implication. We should want our president to see and hear and consider the objections of those who oppose the administration’s agenda. That’s how democracy is supposed to work.
But it’s not just Trump and his supporters who seem inclined to silence their opposition. Something remarkable has happened on the left as well. The haste with which individuals are “canceled”—fired from jobs, castigated on social media, treated almost like lepers in their own social circles—for expressing unpopular opinions is chilling. There’s too often no recourse for those who have expressed ideas at odds with the prevailing culture, and no tolerance for mistakes.
As The Washington Post reported recently, two people who attended a Halloween party hosted by the newspaper’s award-winning columnist took exception to another attendee’s costume: In an attempt to poke fun at NBC News host Megyn Kelly’s comments on the legacy of blackface, a woman had dressed up as Megyn Kelly in blackface. The attendees were angry that the host had not passed along the woman’s name. A New York Times story recently revealed the degree to which young people now apply the tactics of online bullying to peers who hold various political opinions.
People should be confronted when they reveal prejudice. But in the age of social media, transgressions may never be lived down, no matter how you atone. We can all believe in accountability without embracing the notion that anyone uttering the words “All Lives Matter” should forever be emblazoned with a scarlet R.
“I disapprove of what you say, but I will defend to the death your right to say it.” That famous turn of phrase has long been used to explain the value and importance of the First Amendment. And few Americans would dispute that the government should be prevented from stifling free expression. That’s why, decades ago, the ACLU fought to allow Nazis to march through Skokie, Ill., despite the chilling effect their march was likely to have on the Holocaust survivors who lived nearby.
Today, the nation’s democratic discourse is threatened less by a shift in the government policy—though, frankly that’s at issue too. What’s happening in the wider culture should be of real concern. None of us are obligated to befriend a racist or invite a bigot over for a picnic in the backyard. But free expression doesn’t exist de facto if expressing an opinion at odds with the prevailing view of either the left or the right leads to dire, immutable consequences.
The spirit of democracy depends on providing citizens the opportunity to talk through their differences. It cannot survive if citizens are too fearful to divulge what they really think.
Margaret White is executive director of No Labels, a group that seeks to move Washington beyond partisan gridlock and toward solutions to challenges faced by the country.
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