One Way To Stop The Censors

"The Indispensable Right

By Jonathan Turley

Simon & Schuster, 432 pages, $30.99

Jonathan Turley tells us that when he was an undergraduate at the University of Chicago in the early 1980s, free speech was "still an all-you-can-eat feast of viewpoints, from the grand to the grotesque." Militant vegans and Trotskyites lived in dorms alongside trenchant libertarians without triggering each other to kingdom come. Today that "smorgasbord" of competing ideas on campus has shrunk into "little more than a McDonald's Happy Meal -- prepackaged, uniform, and self-contained." Except, of course, that no one seems happy at all.

In "The Indispensable Right," Mr. Turley, a law professor at George Washington University, laments that America is living in an age of rage and that "rage rhetoric" is fueling un-American calls for censorship and the criminalization of speech. In such an inflamed atmosphere, the rights embedded in the First Amendment become ever more imperiled -- and thus ever more important. This is what drives Mr. Turley's effort to remind us of the amendment's robust guarantees, as well as its defining role in American history.

The American approach to free speech, as championed most forcefully by James Madison, was to reject the English paradigm framed best by William Blackstone, the 18th-century jurist. Blackstone was of the view that free speech was (in Mr. Turley's words) "a conditional right enjoyed at the sufferance of the government." In other words, it was "alienable," prompting the uppity, newborn American republic to assert the opposite: "Congress shall make no law . . . abridging the freedom of speech." In Madison's view, free speech couldn't be limited because to do so would be to limit the sovereigns of the new nation -- its own citizens.

Remarkably, the assaults on free speech came soon after independence. Shays' Rebellion (1786-87) and the Whiskey Rebellion (1791-94), among other citizen protests, were deemed to be sedition. Under John Adams -- arguably the greatest enemy of free speech ever to be president -- prosecutions for seditious speech became dizzyingly commonplace, leading Mr. Turley to observe that the English view of free speech was "embedded deeply in the nascent country." Even Abraham Lincoln -- that most sainted of presidents -- "reverted to Blackstonian principles" in his crackdown on the Copperheads, Democrat peaceniks who wanted a settlement with the Confederates. The impulse persisted. A half-century later, Eugene Debs, a repeat candidate for president, would be imprisoned for his antiwar views.

Mr. Turley's most salient assertion is that the danger to free speech lies in the confusion over its philosophical underpinnings. What is the basis of the First Amendment's elevation to near-mythic status in American discourse? Why did so many of us recoil when we read about a dean at Stanford University, in charge of DEI at the law school, giving her support to students as they shouted down a conservative judge? Justifying her complicity in the curbing of speech, the dean asked rhetorically: "Is the juice worth the squeeze?" In other words, was the benefit from the speech worth the "pain" and "division" it was causing?

Mr. Turley's answer to the question is an emphatic yes, but he writes that a yes would be immeasurably more persuasive if it were clear -- and taught as such -- that free speech is a "transcendent right." Locke, Milton, Montesquieu and others -- including the heroic Madison and the invaluable John Stuart Mill -- all emphasized this point in various ways. What may seem like an abstruse philosophical position is made easier to grasp by the distinction we routinely draw between words and actions. Violent, ugly words are protected; violent, ugly actions are not. And yet the purity of such a distinction has been muddied, says Mr. Turley, by the repeated recourse by courts and judges to "functionalist rationales" for free speech.

This view holds that speech is protected essentially because it is necessary to a democratic process. Such functionalism, Mr. Turley says, leads courts to hold that the level of protection is determined by the importance to democratic values of the speech in question. You can see the danger here: Speech is vulnerable to assertions that the juice isn't worth the squeeze -- most notoriously, that "hate speech" and "disinformation" fall outside the First Amendment's protections because they "harm" democracy and society. By contrast, viewing speech as a natural right avoids the subjective traps of functionalism.

Prominent among those who have done harm to free speech is the Supreme Court justice Louis Brandeis, one of whose judgments, ironically, furnished the words that give Mr. Turley the title of his book. Another is Brandeis's colleague on the court, Oliver Wendell Holmes, who penned what Mr. Turley calls "arguably the single most damaging line on free speech in the Court's history" -- the line holding that shouting fire in a crowded theater is not protected speech. This, says Mr. Turley, "quickly became a mantra for every effort to curtail free speech" and has come into its own, with particular toxicity, in our present time, in which unpopular speakers are witch-hunted for their "disinformation." Mr. Turley writes that "opposing views are now the 'fire,' and the internet is a crowded theater."

American society is now afflicted with the malaise of "speech hypersensitivity," no more so than on our campuses, which have gone from being bastions of free speech to "ideological echo chambers."

Mr. Turley believes that the crusade for the recovery of free speech will have to begin in our schools and colleges, which are creating "speech phobics" who have been taught that speech with which they disagree is harmful and needs to be curbed -- paradoxically -- in the interests of democracy. Once the target of censorship in the McCarthy period, the political left "has rotated 180 degrees" and now uses "corporate, media and academic allies to isolate and silence opposing viewpoints." The nexus, here, between private companies and the government blurs the lines that confine First Amendment guarantees to the public sphere.

Nowhere is this new censorship more evident than in the wholesale squelching of contrarian views by a caste of elite experts during the Covid-19 pandemic. Most notable was the case of the signers of the Great Barrington Declaration, scientists who insisted that government policies of lockdowns and, by implication, mandatory masks had no basis in fact. They found themselves banned from social media and sent to academic Coventry. Such ostracism was already commonplace for those who differed from the received wisdom on climate change, where the debate is not just framed but treated as settled for all time by a priesthood on high alert for blasphemy.

Mr. Turley has written a learned and bracing book, rigorously detailed and unfailingly evenhanded. For all his grim recounting of the assaults on free speech, his is ultimately a buoyant book. In pushing for the view that free speech has a "natural or autonomous basis" -- independent of political trade-offs and contextual give-and-take -- he declares his optimism. Our faith in free expression is a faith in our fellow citizens -- a faith "that we do not have to fear opposing viewpoints." An assertion of this kind can be made today in very few countries. That it can still be made in America, for all its political rifts and culture wars, is a tribute to the greatest constitution that any land has had the fortune to possess.

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Mr. Varadarajan, a Journal contributor, is a fellow at the American Enterprise Institute and at New York University Law School's Classical Liberal Institute." [1]

1. REVIEW --- Books: One Way To Stop The Censors. Varadarajan, Tunku.  Wall Street Journal, Eastern edition; New York, N.Y.. 15 June 2024: C.7.