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Friday, June 27, 2014

Cultural Thoughts about McCullen

I've now finished reading McCullen. I should preface this by saying I'm not a free speech expert (and am actually not all that interested in the doctrinal minutiae). My perspective on this comes from having lived in other cultures for most of my life and being somewhat of an outside observer of American culture, even after more than a decade here.

Coming from a culture that regulates speech more strictly, I'm often aghast at the concessions American constitutional law makes for people with hateful, non-world-improving speech, as well as with its broad definition of "speech". But I think the legal culture here is just different.

I say "legal" culture because, ironically, where I came from there may be less doctrinal legal protection in the books, but there's a lot more street confrontation in action. It's not always fun, but it's not necessarily a bad thing. I confess that, having lived here for a while, my instinct upon hearing the decision, like that of many of my friends, was to say, "well, yes, there's a right to free speech, but there's no right to have a captive audience for my speech." But I've realized another thing about American culture that pertains specifically to the audience of such speech: compared to other places in the world where I've lived, the US is very nonconfrontational. With the obvious exception of the Internet, people here tend to abide by "if you don't have anything nice to say, don't say it at all" and "be nonjudgmental" more than in other countries. There's something ironic about this avoidance and non-confrontational practices in a country whose speech doctrine is so expansive. You can talk, but because of the way things really are, you'll likely talk to the void. Because of this culture of avoidance, I often notice that my students find it really difficult to listen, in class, to opinions they dislike, and they later show up at my office traumatized by what they heard. Obviously, personal taste and confirmation bias make it an unpleasant experience for us to hear things that we disagree with, but in the long run, avoiding these conflicting messages isn't good for us, either. It makes us less engaged in the public sphere and it really limits the fruitful interactions we could have if we deigned to speak more with people with whom we disagree. Granted, there's a big difference between hearing this message when I'm going about my daily life and hearing it when I'm about to undergo a physically painful, emotionally difficult medical procedure that will irrevocably alter the course of my life after a making decision I've likely agonized about. But I suspect that, in the grand scheme of things, less trigger alerts, less protections, and less buffers will make us stronger people. There's a way in which free speech works for the audience as well as for the speaker--it expands our horizons beyond our comfort zone and makes us into better social citizens.

Two book recommendations McCullen readers might appreciate, both of which are very sensitive to the broader political and cultural context:

Josh Wilson, The Street Politics of Abortion

Laura Beth Nielsen, License to Harass

Posted by Hadar Aviram on June 27, 2014 at 10:04 AM | Permalink


First, these comments seem to echo, a bit, the comments of Judge Posner. Ed Whelan weighs in over at NRO--- http://www.nationalreview.com/bench-memos/381397/posners-bizarre-comments-mccullen-v-coakley-ed-whelan.

Second, accepting classical liberal language--- there's something true about the implication that it takes strong, speech-restrictive social norms to enable formally expansive, pro-speech constitutional law.

As our culture becomes more and more abusive in its speech, as we move further and further from the complex Anglo social norms, a strong First Amendment becomes less possible.

And I'm reminded even further of a quote (I'm paraphrasing and I forget its source) that classical liberalism and the strong notion of individual right derived from the British desire to avoid being required to deal with their families.

Posted by: AndyK | Jun 27, 2014 11:42:27 AM

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