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Friday, April 27, 2012

Freedom of speech and the politics of the underlying speech

Guesting at CoOp, Erica Goldberg has a thoughtful post describing how "disheartened" she is by the confusion of protection of speech with the political views expressed. She relates her experience working at the Foundation for Individual Rights in Education ("FIRE"), a group often viewed as right-wing because many of the high-profile cases it has taken on has involved either speech by conservative groups or non-partisan speech that offends liberal sensibilities (e.g., a case involving misogynist chants as part of fraternity initiation). Erica concludes with a nice line about the ease with which the principle of free speech gets conflated with the speech at issue: "The day that I don’t have to disassociate myself from the speech that I am defending is the day that I can stop worrying so much about the state of free speech issues on campus."

It's a nice commentary and worth a read.  I want to add some thoughts on the margins.

First,this is not a new phenomenon. The ACLU was labeled left-wing (if not outright "Commie" and "Un-American" for its, in retrospect, tepid support for communist speech). And the ACLU became the poster-child for America-hating liberals during the flag-burning debates. That the ACLU also represented the Skokie Nazis just got lost in the noise of politics. The ACLU was a bunch of liberals, end of story.

Erica illustrates the different perspective on Jack Balkin's "ideological drift" argument that I have argued for in the past: It's not that conservatives have discovered free speech as a principle, but that many liberal groups have abandoned it (or at least made its position less-absolute) in favor of other principles.  The problem (from the perspective of many) with the ACLU is that it has taken on other issues besides free speech, notably equality for women and GLBT, decidedly liberal positions; this necessarily weakened its unwavering support for some speech that had the purpose or effect of denying equality to those groups. So perhaps Erica is correct that the ACLU would not apply its lower standard for harassment to liberal groups, but that is because such speech does not interfere with the organization's other, non-speech positions.

Finally, my conclusion from Erica's last sentence (quoted above) is that we're never going to be able to stop worrying about the state of free speech on campus (or anywhere else for that matter). The free speech principle is inseparable from the content of the speech being protected. And not only in the political realm, but also in the legal realm. Consider how often courts, in the course of protecting especially heinous speech, find it necessary to include some disclaimer either disociating itself from the speech or taking a potshot at the speaker. For example, last year in Snyder v. Phelps, Chief Justice Roberts closed this way: "Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But . . ."

If that but is necessary in a judicial opinion, it always is going to be present and necessary in public debate.

Update: Will Creeley, FIRE's Director of Legal and Public Advocacy (Erica's former colleague), writes to point me to a YouTube link devoted to the Skokie case, featuring a 1977 interview with David Hamlin, the Executive Director of the Illinois ACLU. Will highlights the following quotation:

Most of the causes we represent are unpopular, at least with someone... In one sense, everything we do is unpopular, in that not everyone agrees with everything we do... We continue to represent the rights of even the most unpopular individuals."

One of the difficulties the ACLU has always had is a kind of instant association with the client... Every time we represent someone, people assume that we are supporting what they say, and not their right to say it.

Same as it ever was.

Posted by Howard Wasserman on April 27, 2012 at 09:54 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink

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Comments

That was a descriptive point: Most people (in politics, in the courts, and in the public at large) cannot or just do not separate the idea of protecting speech from the content of the speech being protected.

I'm not disagreeing with you on the ACLU point, although I guess wouldn't use the word "nonpartisan", at least not directly. It's about different constitutional values (which incidentally, and unfortunately, have a political valence) more than an explicit idea of "we're only going to protect liberal speech."

Posted by: Howard Wasserman | Apr 27, 2012 1:31:21 PM

Hello,

Thanks so much for the link to my post, and I really appreciate your thoughts. Question: when you say that the free speech principle is inseparable from the content being protected, are you making an empirical claim or a normative claim?

With respect to the ACLU, I have tremendous respect for the organization, but I do feel like altering their formerly unflinching position on speech issues in deference to other causes with a decidedly more political bent does make them less nonpartisan. I take your point, however, and not everyone is going to decide that the free speech principle trumps all other values.

Posted by: Erica Goldberg | Apr 27, 2012 1:04:44 PM

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