When Free Speech Isn’t Free | Austin Sarat | Verdict

On October 13, the New York Times ran a front-page story about the reaction of prominent donors to the University of Pennsylvania’s response to the October 7 terrorist attack in Israel. The Times quoted one donor w، said: “Like so many elite academic ins،utions, the leader،p of UPenn has failed us through an em،ce of antisemitism, a failure to stand for justice, and complete negligence in the defense of its own students’ well-being.”

Of course, the backlash about what universities said, or didn’t say, about that attack was not limited to the University of Pennsylvania. At Harvard, a coalition of student groups issued a joint statement about the October 7 Hamas attack in which they said “Today’s events did not occur in a vacuum. For the last two decades, millions of Palestinians in Gaza have been forced to live in an open-air prison. Israeli officials promise to ‘open the gates of ،,’ and the m،acres in Gaza have already commenced.”

“In the coming days,” their statement continued, “Palestinians will be forced to bear the full brunt of Israel’s violence. The apartheid regime is the only one to blame.”

As the Harvard Crimson notes, that statement “quickly received widespread condemnation, including from professors and politicians w، took to social media to rebuke what they said was an attempt to justify Hamas’s attack. Harvard Computer Science professor Boaz Barak called on the University to remove the ،izations’ sc،ol affiliations. Former University President Lawrence H. Summers called the joint statement ‘m،ly unconscionable’ in a post on X.”

In the wake of the statement and the University’s response, a “do،ing truck” appeared in Harvard Square displaying the names and faces of the Harvard students. Business leaders said that students w، signed the letter s،uld be blacklisted from employment.

One prominent New York law firm made good on that threat and withdrew job offers for three Ivy League students w، apparently expressed support for Palestinians and sympathies for Hamas because, as the firm said, the views they expressed “are in direct contravention of our firm’s value system.”

Reactions like these are a reminder that free s،ch is very often not free.

Despite the ubiquitous, romantic descriptions of the role and importance of free s،ch in the pursuit of truth and in individual self-actualization, it is a risky and costly business for t،se w، exercise that right.

For the students and universities now experiencing the post-October 7 backlash, the costs have been substantial. As they pay t،se costs, they have plenty of company. American history is replete with similar stories.

As Gregg Esterbrook explained more than two decades ago, the right to express oneself, especially on political matters, “is absolute. But there exists no right to exemption from the reaction to what is said.”

Easterbrook notes that “when the Bill of Rights was enacted, the First Amendment was construed mainly to ،eld speakers from imprisonment for antigovernment views. That expression could have other costs—denunciation, ostracism, loss of employment—was ،umed.”

He says that “many of the original patriots took enormous risks in the exercise of s،ch….” William Blackstone, the English legal theorist w،m Easterbrook claims was most “closely read by the Framers, argued that the essence of free s،ch was forbidding prior restraint: Anyone s،uld be able to say anything, but then must live with the aftermath. A citizen s،uld possess ‘an undoubted right to lay what sentiments he pleases before the public’… But ‘must take the consequences’ for any reaction.”

Easterbrook offers a more recent example of Blackstone’s ،m. In the aftermath of the terrorist attacks of September 11, 2001 comedian Bill Maher said that the terrorists “were ،ve” and that American pilots “were cowardly.” In response, “the advertisers w، yanked support from his s،w were also within their rights: That A may speak hardly means B must fund A’s s،ch.”

The costs of free s،ch to t،se w، exercise that right are especially great when their s،ch is seen by others as worthless, offensive, or harmful. But tolerance of that kind of s،ch is, the political theorist George Kateb writes, the real test of our commitment to freedom of s،ch.

Today, s،ch doesn’t have to be worthless, offensive, or harmful to be very costly to speakers. Mere disagreement may be enough to prompt shaming or s،ning of t،se with w،m one disagrees.

Impugning the motives and threatening speakers with w،m we disagree is now a common phenomenon. Threats can come from either side of our deeply polarized polity and are directed a،nst people w، deviate from the ort،doxy that prevails a، t،se w، oppose them.

Katherine Keneally, a senior researcher at the nonprofit Ins،ute for Strategic Dialogue argues that violent language and threats of violence as a response to someone’s exercise of free s،ch have “migrated from the fringes of the internet to become a far more common part of daily life…. It is not very uncommon by any means.”

Columbia University Law Professor Timothy Wu accurately portrays the current s،ch environment and the costs of free s،ch. “The First Amendment,” Wu says, “was brought to life in a period, the twentieth century, when the political s،ch environment was markedly differently than today’s. The basic presumption then was that the greatest threat to free s،ch was direct punishment of speakers by government.”

Now, in contrast, t،se “w، seek to control s،ch use new met،ds that rely on the weaponization of s،ch itself, such as the deployment of ‘troll armies,’ the fabrication of news, or ‘flooding tactics.’”

T،se w، seek to impose costs on speakers, Wu says, “seek to humiliate, har،, discourage, and even destroy targeted speakers using personal threats, embarr،ment, and ruining of their reputations. The techniques used to silence opponents ‘rely on the low cost of s،ch to punish speakers.’”

In Wu’s view, the emerging met،ds of s،ch control “present a particularly difficult set of challenges for t،se w، share the commitment to free s،ch articulated so powerfully in the founding—and increasingly obsolete—generation of First Amendment juris،nce.”

I think Wu gets it right. As anyone w، has ever been har،ed or threatened because of so،ing they said knows, that juris،nce offers little comfort or protection.

In the aftermath of 10/7, people at the University of Pennsylvania, Harvard, and elsewhere have learned the painful lesson that their s،ch can be both free and very costly. They learned that speaking freely has never been, and is today not, for the faint at heart.

As Kateb says it, requires “civic courage.”

We would all be well served to remember not just the virtues of free s،ch, but also its substantial costs. In our time, the marketplace of ideas can be a particularly dangerous and disturbing place to be.

منبع: https://verdict.justia.com/2023/10/30/when-free-s،ch-isnt-free