Op-Ed: Those who exercise free speech should also defend it — even when it’s offensive

The Constitution's guarantee of free speech isn't limited to speech we agree with.
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Protests sparked by the murder of George Floyd and systemic racism have been boisterous, righteous assertions of the constitutional liberties of free assembly, expression and speech — even as police have too often breached those rights. Yet as a wider precept, free speech is losing ground. As activists take to the streets demanding systemic change, they should consider that a robust defense of free speech is crucial to their goals.

In recent years, the right has tried to claim the upper hand on free speech, decrying political correctness run amok. President Trump has invoked the 1st Amendment in defending gun-toting marauders in Charlottesville, Va., raging against Twitter for flagging his incendiary tweets and threatening to withhold funds from colleges that undercut speech protections.

But the president’s defense of free speech is selective at best, and the White House and its allies frequently wage war on speech with which they disagree. The president pushed the NFL to punish players for kneeling in demonstration. He has persistently discredited legitimate media outlets and retaliated against them for unfavorable coverage. And he even went so far as to call for military suppression of protests under the Insurrection Act.


Apart from being cynical and opportunistic, this one-sided conservative approach to free speech has had the unfortunate effect of fueling doubts about the value of free speech on the left. When people in high government positions invoke free speech to protect bigotry, it’s no wonder some people begin to question whether the 1st Amendment is just a smokescreen for noxious ideas.

Moreover, when free speech defenders deny the dehumanizing effect that speech can have, and dismiss justifiable outrage as oversensitivity, they feed a sense that free speech as a principle is impervious to the harms that expression can wreak for minority groups in particular.

Throughout U.S. history, people have claimed the 1st Amendment to protect speech they favor, but resisted similar safeguards for expression they find offensive. In 1978, when the ACLU defended the right of neo-Nazis to march in Skokie, Ill., memberships from its largely liberal supporters tanked, partially recovering only when the organization explained that the city ordinances they challenged had also been used to stop Jewish war veterans from parading.

Lately we’ve seen a proliferation of calls to punish offensive speech. Universities have faced demands to rescind admissions offers for incoming students and discipline professors over disparaging remarks (such as those of a Cornell professor who faulted a protester injured by police officers in Buffalo, N.Y., for not getting out of the way). A controversial (and, some said, fascistic) New York Times op-ed piece by Sen. Tom Cotton (R-Ark.) fed a clamor that cost two top editors their jobs. Philadelphia Inquirer Executive Editor Stan Wischnowski resigned under pressure — apparently for many reasons, but the proximate cause was an egregious three-word headline equating looted buildings to lost lives.

The details behind these controversial dismissals have not been fully aired, and there is an argument that drastic repercussions are sometimes necessary to puncture institutional complacency and root out ingrained biases. Amid tectonic shifts in society, those who cannot — or will not — make the necessary leaps may slip into the cracks.

But as we rightly rush to address the harms speech can sometimes inflict (through official condemnations, counter-speech and other means), we should keep in mind the risks of relying on firings, “cancellations,” and official punishments for expression. Even if such sanctions are levied in the name of preventing or deterring genuine harm, they embolden authorities to dictate what speech is off limits. Governments and institutions wielding such power (including the Trump administration) mostly use it not to combat racism and bigotry, but rather to suppress dissent and muzzle critics. Even well-intended efforts to enumerate and ban offensive speech can boomerang, leading violators to adopt stealthy channels or coded language to purvey hateful messages. High-profile punishments for speech can reverberate, instilling a widespread excess of caution that shuts down pressing questions and worthy points.


While the freedom to march against racism and the right to question the anti-racism movement’s tactics may seem utterly distinct, they are connected. The 1st Amendment protects a spectrum of rights, from the personal to the political: freedom of religion and belief, freedom of expression, press freedom, freedom of assembly and freedom to petition the government. Corroding any single link in the chain weakens the collective protections. The freedom to write and think provides the inspiration for great movements. An uninhibited free press is essential to making the power of protest felt in the halls of power. Free speech also evolves. The push to dismantle racial barriers in publishing, journalism and the arts are part of the drive to guarantee that expressive rights are truly accessible to all.

As path-breaking activists in the antiwar, labor, women’s rights and civil rights movements witnessed, proponents of social change have the strongest stake protecting speech that is unpopular, or even deemed dangerous. It is when a cause is rejected as illegitimate by those in power that free speech liberties are most precious. Those freedoms are why ruthless police attacking peaceful protesters are being disciplined, and why military leaders spoke out against the president’s call to turn brute force on our own citizens. As we rise up to remake America, free speech must be not only something we rely upon, but also part of what we fight for.

Suzanne Nossel is CEO of PEN America and author of the forthcoming book, “Dare to Speak: Defending Free Speech for All.”