Freedom of speech used to be a quintessential liberal cause.
That quintessential liberal advocacy organization, the American Civil Liberties Union, prided itself on defending the 1st Amendment right of even the most marginal and disliked of groups to express their views: neo-Nazis parading with pickets through a town populated by Holocaust survivors, for example. The watchword was that of one of the Supreme Court's most liberal justices, Louis Brandeis (1856-1941), who wrote: "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence."
Now for many progressives, it seems, the remedy is ... enforced silence. Here is author William D. Cohan, writing in the Huffington Post to wonder "if there should be limits to saying or writing whatever you please in online forums that can sully someone's reputation with impunity and impair his or her ability to make a living."
Cohan's beef is that that an overwhelming number of reviewers on Amazon gave negative "one-star" reviews to his new book, "The Price of Silence," a 621-page revisionist look at the Duke lacrosse scandal of 2006.
That's the case in which three white members of the North Carolina university's lacrosse team were charged with raping a black exotic dancer in a bathroom at a party. They were later exonerated by the state district attorney's office on the ground that there was practically no credible evidence that a rape had occurred (the dancer's account of what had happened changed constantly), much less that those three were involved. Michael Nifong, the district attorney for Durham, N.C., who had procured the rape indictments, was disbarred for, among other things, allegedly withholding crucial DNA evidence exculpating the accused. The city of Durham recently settled a damages lawsuit brought by the three young men and their families that included donating $50,000 to a local innocence project.
Cohan's position is, as he explained in a May 16 interview with CNN:
"There is an incredible amount of evidence that something untoward happened in that bathroom, something none of us would be proud of happening," said Cohan. "Who did it, when they did it, what they did is absolutely just still not clear."
Cohan is obviously unhappy that most Amazon reviewers didn't buy into his insinuations. Or into the fact that he, as the Wall Street Journal's Dorothy Rabinowitz wrote, played the race card in a NPR interview in which he said that the parents of the accused "of course had a bottomless pit of money to spend on the defense ... had it been, you know, black players ... they would not have had the money for this defense."
Cohan's Huffington Post piece is titled "How Much Free Speech Is Too Much?" His answer:
"What's clear is that we're are at a crucial moment where the ability of technology to permit instant, unvetted and unfiltered commentary is running head-first into the justified concerns of those whose reputations can be torn asunder unfairly by it. It's a conundrum for sure and one that needs some serious sorting out."
He's not the only liberal to complain that America's 1st Amendment allows just plain too much free speech.
Emily Bazelon, granddaughter of another famously liberal judge, David L. Bazelon (1909-1993) of the District of Columbia's federal appeals court, wrote a May 29 article for Slate praising a German court that had ruled in favor of a young woman seeking a court order for her former boyfriend to delete some nude photos and videos of her that he had posted on his own computer (he had not circulated them online). The German court cited a right to "the inviolability of human dignity" in the German Constitution. Bazelon wrote:
"This kind of claim would never fly in the United States — the First Amendment would trample it. That's exactly why I'm glad Europe is building a different sort of online universe."
Bazelon also praised a May 13 decision in which Europe's highest court, the European Court of Justice, upheld a Spanish data protection agency's order to Google to remove links to 1998 newspaper articles about the forced auction of the property of a then-bankrupt Barcelona lawyer.
Her fellow Slate contributor, University of Chicago law professor Eric Posner, similarly drooled over the Court of Justice decision and wrote that "U.S. law should do more to protect our privacy than it does right now. That means the type of balancing endorsed by the European Court of Justice."
This is pretty strange. A court can order the electronic burial of events that were considered perfectly newsworthy just 16 years ago.
I'm not even getting into retired Supreme Court Justice John Paul Stevens' call, in his new book, "Six Amendments," for drastic changes to the 1st Amendment in order to restrict campaign financing. It's the new restrictive attitude of the progressive left toward the ordinary dissemination of information deemed unflattering to people's reputations that poses the greater threat to liberty of speech and press.