Quite a moment for free speech in the U.S. today.
No, it’s not some landmark legal victory. But it’s significant: today the New York Times, the paper of record, published a lengthy op-ed titled “America Has a Free Speech Problem.”
This is both a milestone moment and a deliciously ironic one, too. I’ll explain.
But first, what does this article say?
It begins with a bold assessment:
“For all the tolerance and enlightenment that modern society claims, Americans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned.”
This claim rests on new data from several recent studies, including one conducted by the Times itself, that reveal Americans’ growing concern around being able to express political and social viewpoints without fear of recrimination. According to the Times study, a full 55% of adults said they’d kept silent from sharing their opinions over the past year for fear of retaliation, while 46% felt less free to talk about politics than a decade ago. An overwhelming number — 84% — felt it’s a problem right now that we can’t speak freely about our opinions without worry of reprisal.
Why is this a problem? The article reminds us of some of the classic, J.S. Mill-ian arguments in favor of free speech: getting at truth, revitalizing stale opinions, resolving conflict nonviolently. Above all, it’s vital to a robust democracy.
Even more specifically, the issue for the authors isn’t that Americans are afraid to speak for fear of criticism of their ideas, but for fear of undue stigmatization of their person, or even of real jeopardy for their career, all of which creates not a robust marketplace of ideas, but a chill over real exchange and debate: “People should be able to put forward viewpoints, ask questions and make mistakes and take unpopular but good-faith positions on issues that society is still working through — all without fearing cancellation.”
Also noteworthy for a liberal paper like the Times is that according to this op-ed, both the political right and the left are to blame:
“Many on the left refuse to acknowledge that cancel culture exists at all, believing that those who complain about it are offering cover for bigots to peddle hate speech. Many on the right, for all their braying about cancel culture, have embraced an even more extreme version of censoriousness as a bulwark against a rapidly changing society, with laws that would ban books, stifle teachers and discourage open discussion in classrooms.”
Both sides would do better to speak with their actions rather than their words:
“You can’t consider yourself a supporter of free speech and be policing and punishing speech more than protecting it. Free speech demands a greater willingness to engage with ideas we dislike and greater self-restraint in the face of words that challenge and even unsettle us.
This seems to me a critical point: there are too many on the right who complain about being silenced, but who then turn around and institute legislative bans on books and academic theories in classrooms. Meanwhile, too many on the left seem themselves as firmly opposed to the censorship of the ignorant right, even as they’re engaging in tone-policing and attempts to cancel everyone from Dave Chappelle to Steven Pinker.
The problem, of course, is that there are no easy answers. The article reminds us that while a majority of Americans responding to the polls cited in the article believe that stifled speech is a problem, many of these same respondents also believe that bigoted or hateful speech should be shut down. Again, here is a place where the normally-liberal Times seems to take a surprising stand against its own. The authors write that while legal victories of the past decided in favor of free speech were often based on liberals’ rights to protest conservative authority, today “many progressives appear to have lost faith in that principle [of free speech].” Although the progressive movement “has been a force for good in many ways,” the problem is that “in the course of their fight for tolerance,” progressives have “become intolerant of those who disagree with them or express other opinions and taken on a kind of self-righteousness and censoriousness . . .”
If anything, the article fingers the political right as the more guilty party. They have created an “avalanche of legislation” that “gags discussion of certain topics and clearly violates the spirit of the First Amendment, if not the letter of the law.” The statistics as to the number of bills proposed — if not adopted — is truly something. These bills aim not only to restrict access to books, but to restrict what professional educators can teach students, often with severe penalties attached.
The authors highlight this distinction well: the right pursues legislation to stifle speech, while the left adopts cultural and social stigmatization — in the words of the article, “online shaming . . . and loss of livelihood.”
Again, for the liberal Times to both decry a free speech problem in the U.S. and to identify the left as being at any fault whatsoever is significant. Although free speech does not mean freedom from criticism, there is a difference between criticism of one’s ideas and criticism of one’s very being — or of attempting to get one banned or fired:
“Some progressives believe this [informal stigmatization resulting in social ostracism or even job loss] has provided a necessary, and even welcome, check on those in power. But when social norms around acceptable speech are constantly shifting and when there is no clear definition of harm, these constraints on speech can turn into arbitrary rules with disproportionate consequences.”
Yet that quote illustrates the piece’s greatest shortcoming. While the article cites Americans’ confusion over what they can and can’t say, the writers of the piece still seem unclear themselves. For example, several times the authors refer disparagingly to “hate speech” — at best an ill-defined category with no legal grounding in the United States, and one which always makes me scratch my head (is it wrong to speak while motivated by hatred? What about hatred of an unjust policy — is that sort of “hate speech” acceptable?) — and the authors seem to imply a clear distinction between “hate speech” and the kind of speech that’s unpleasant but vital to democracy, which they’d explicitly championed earlier. But when you look closely, the Times doesn’t really know what the difference is, or what “hate speech” really means:
“The Times does not allow hate speech in our pages, even though it is broadly protected by the Constitution, and we support that principle. But there is a difference between hate speech and speech that challenges us in ways that we might find difficult or even offensive.”
The Times makes no attempt in this piece to separate “hate speech” from “speech that challenges us.” They hyperlink the two articles in the passage above as apparent source material. But neither sheds any meaningful light. The first article is extremely short and contains no rigorous distinction, while the second article, written by a professor, draws a dubious biological and psychological distinction between speech that makes us mad (“offensive” speech) and speech that makes us stressed or anxious (“abusive” speech).
Yet this is the same basic progressive argument for banning speech that “harms” which the Times seems to criticize elsewhere in today’s editorial:
“But when social norms around acceptable speech are constantly shifting and when there is no clear definition of harm, these constraints on speech can turn into arbitrary rules with disproportionate consequences.”
More importantly, the admission that the New York Times disallows “hate speech” in its pages is a striking one. Does this mean that if a candidate duly elected by a majority of the American people said something important for the direction of the country, but at the same time bigoted and discriminatory, that the Times would not print this information? Does it mean that if one side of an important social debate — a side shared perhaps by millions of Americans — was considered offensive and “abusive” to hear (citing the distinction above) by some readers, that the Times would not report on the specifics of this opinion?
Even more broadly, does this mean that the Times would refrain from publishing any speech that seems motivated by the emotion of “hate”?
One can imagine that there are thousands and thousands of readers who will consider this very editorial — surely controversial — as “hate speech.” Yet the Times went forward with publication. Surely there are reasonable standards in this endeavor, but it’s disappointing that the Times in no way attempts to delineate them.
In a sense, this article skates over the root of the problem: the tension between the importance of free expression and open dialogue, and the very real consequences of hearing unpleasant or offensive speech. Words, as we all know, do hurt. This truth has been increasingly used to justify what I’ve begun to call the “Harm Principle” — the one alluded to above: that speech that makes one feel uncomfortable should not be allowed to be uttered (or should only be uttered with a strong caveat, such as a warning of some kind). The article linked above by the Times itself, the one citing a difference between offensive and “abusive” speech — argues that any words which cause stress should be restricted, and the Times seems to be unsure whether it wants to endorse that definition.
But that distinction is questionable for two reasons. First, it’s impossible to define. As the article mentions elsewhere, conservatives have started invoking the Harm Principle for their own purposes, to ban teaching or readings that make any students feel uncomfortable in the classroom. Surely that can’t be the answer. But nor can it be the answer to say that some people’s offense justifies formal or informal speech bans, while others’ does not.
The second problem with the Harm Principle is that it’s a poor way to deal with the problem of feeling the very same anxiety and stress that it seeks to prevent. The authors of the 2018 bestseller, The Coddling of the American Mind, Greg Lukianoff and Jonathan Haidt, wrote at length about this problem. They called the acceptance of and even encouragement to push away speech that makes us stressed or upset a band aid on a problem, or even a kind of “catastrophizing” that reaffirms unhealthy psychological habits. Instead, the authors essentially recommend the old parenting mantra, to be repeated again and again: “Sticks and stones can break my bones, but names can never hurt me.” Only by teaching resilience can we ensure the important democratic exchange of ideas, in an environment in which important ideas are not festering underground, away from the light of day (and actually becoming worse), and an environment in which people don’t feel it necessary to hold their tongues — as well as the kind of resilience that creates real, lasting mental health, according to Lukianoff and Haidt.
In a sense, it’s as though the Times has recognized that there is a problem with free speech, but they’re still not sure where to draw the line themselves on what’s acceptable.
And then there’s the bigger context as to why this article is so stunning. This whole piece is ironic — and perhaps especially noteworthy — given the Times’s own recent history. Within the past two years, at least two different high-profile employees resigned under heavy pressure from social media advocates and from Times staffers after perceived missteps in judgment and language: noted science writer Donald McNeil, and the former editor of the very op-ed page publishing this essay, James Bennett. McNeil made comments that were seen as politically offensive — not in his published work, but during informal discussions on a Times-sponsored school trip with high school students. Bennett made the mistake of publishing a controversial essay written by a sitting U.S. senator, Tom Cotton. In both cases, there was significant internal pressure from Times Reporters for the employees in question to resign, much of which seemed to invoke the Harm Principle. In the case of Bennett, according to the Times’s own reporting:
“Much of the dissent [from Times staff] included tweets that said the Op-Ed ‘puts Black @NYTimes staff in danger.’ Times employees objected despite a company policy instructing them not to post partisan comments on social media or take sides on issues in public forums.”
That’s why this op-ed represents such a moment. That the Times — the op-ed department, particularly — is concerned about a chilling effect on freedom of speech coming as the result of both formal legislation and also from informal stigmatization represents an important step at least for our media culture. One has to imagine that either the internal climate among Times workers has changed dramatically, or else the op-ed department is taking a major, major public stand even as they know they will face incredible internal pressure from those same staffers. Either way, given the Times’s own history, this is quite a different course than I expected, and quite a statement.
Although the Times didn’t fully take a stand on the Harm Principle, and although they didn’t clearly define what they do and do not think is acceptable, at least they took a stand on the fact that a problem does exist.
And that — in my view — represents a meaningful moment in the debate about free speech in the United States.