« Judenhaas | Main | Call for Articles: Post-Pandemic Impact on Healthcare Development and Delivery »

Tuesday, July 07, 2020

The First Amendment and the preferred first speaker

Harper's has published online (and will publish in print) a letter on "justice and open debate" from a cross-section of journalists, authors, and academics, including several law professors. They decry a "new set of moral attitudes and political commitments that tend to weaken our norms of open debate and toleration of differences in favor of ideological conformity." They allude to  recent events involving fired editors and analysts, canceled books, investigated professors--what has come to be called, loosely, "cancel culture."

The authors claim to "uphold the value of robust and even caustic counter-speech from all quarters," but to fear that "it is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought." Ken White (Popehat to those on Twitter and KCRW) sees the letter as drawing an untenable (or at least elusive) distinction between "silencing" and "more/responsive/critical" counter-speech. White labels this the "problem of the preferred first speaker," the " tendency to impose norms of civility, openness, productiveness, and dialogue-encouraging on a RESPONSE to expression that we do not impose on the expression itself." In other words, the original speaker is free to say what she wants however she wants; the response must listen to, engage with, and respond to that speech. "Shut up" is not acceptable counter-speech.

This is an extension and expansion of the problem of campus speech and "controversial" speakers. The invited speaker (Charles Murray, whoever) is the preferred first speaker, entitled to have his say; those who object or oppose his views are expected to sit quietly, listen to what he says, perhaps ask a question or make a comment during Q&A (if he deigns to call on them). Anything else (such as a noisy protest outside the hall) is the dreaded heckler's veto.

Both situations create a puzzle . We do not want people to lose their livelihoods for their speech, nor do we want speakers chased off campus. But we also should not hamstring one side of the debate--to paraphrase Justice Scalia, we should not allow the original speaker "to fight freestyle," while requiring counter-speakers "to follow Marquis of Queensberry rules." I do not know the right answer or correct balance either to the recent online issues or to campus speech (the latter will not be an issue for awhile, unfortunately). But this letter does not provide it.

Meanwhile, White provides a great title for the article I hope to write.

Posted by Howard Wasserman on July 7, 2020 at 01:39 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


Actually, the ground has not shifted. The complaints reflected in that letter are the same as those directed at controversial campus speakers--their speech is violence and they are racist, so their speech must be stopped. The forum changed--campuses as opposed to spaces on platforms; the logic is the same.

The right to speak should include the right to counter-speak close in time and place. We do not say BLM protesters can protest on Sundat and counter-protesters must protest on Monday. In the same way, counter-protesters to the campus speaker should be able to protest then and there.

Posted by: Howard Wasserman | Jul 8, 2020 2:00:21 PM

I don't understand how letting a speaker give a speech is the equivalent of letting the speaker "fight freestyle" while hamstringing the opposition with Marquess of Queensbury rules. The speaker speaks. The opposition asks questions, or gives their own speech on another occasion. No one interrupts anyone's speech. Everyone is playing by the same rules, as far as I can tell. That analysis just doesn't make any sense.

Posted by: Douglas B. Levene | Jul 8, 2020 1:40:40 PM

It would be helpful if you actually took on the thrust of the argument in the letter. It's not about speech and counterspeech. It's about "Editors are fired for running controversial pieces; books are withdrawn for alleged inauthenticity; journalists are barred from writing on certain topics; professors are investigated for quoting works of literature in class; a researcher is fired for circulating a peer-reviewed academic study; and the heads of organizations are ousted for what are sometimes just clumsy mistakes. Whatever the arguments around each particular incident, the result has been to steadily narrow the boundaries of what can be said without the threat of reprisal. We are already paying the price in greater risk aversion among writers, artists, and journalists who fear for their livelihoods if they depart from the consensus, or even lack sufficient zeal in agreement."

It's about the people who are not as well known as the authors, who won't speak up because the crazies will go after their jobs and careers. No one is afraid of a back and forth but the fact is the "other side" won't engage in speech and will not recognize what you say as speech - they declare it violence, denounce you as a racist and then craven administrators and corporate executives give in. The "untenable distinction" Ken White is trying to draw is simply irrelevant under the current circumstances. That's a debate from 5 years ago. The ground has shifted under your feet.

Posted by: MorrisonHotel | Jul 8, 2020 12:29:20 AM

I was going to mention the absurd false equivalence here between government censorship and an “intolerant society” but Paul Campos beat me to it:


And the examples given for evidence of “spreading censoriousness” are not actually forms of censure but rather of criticism, which the signatories purport to have no issue with.

(And I agree that Ken has framed the issue in a super helpful way!)

Posted by: Enrique Armijo | Jul 7, 2020 8:02:42 PM

I think it would be a step in the right direction of people in positions of power exercised their right to say "Shut up" to people demanding speakers be fired.

For the life of me, I don't understand how adults like the "You have freedom of speech, but not freedom *from* speech" go on for so long.

If I'm afraid that saying something will result in the loss of my livelihood, do I really have freedom of speech? The answer to that seems to be so clearly and obviously "no" I just can't understand why adults have told me that I have to "listen" and "engage with" it.

Posted by: thegreatdisappointment | Jul 7, 2020 7:01:47 PM

The comments to this entry are closed.