Every generation, it seems a new type of media is deemed so threatening to society that our current laws can’t possibly be capable of handling it. In the '90s, that threat was violence on TV and in video games. Today, we are told the latest media scourge is hate speech. The activists who lead the charge against these perceived crises often propose the same solution: reform the First Amendment so that their target-du-jour can be outlawed.
But the First Amendment needs no reform. Over the course of 100 years (the Supreme Court largely avoided the issue of free speech under the First Amendment until 1919), federal courts have developed a robust, nuanced body of law regarding free speech.
Critics of the current state of speech portray the landscape as a Wild West environment, where there are no rules and anything goes. But there are currently numerous restrictions on speech. The law clearly does not protect speech when it involves threats and targeted harassment, violates privacy, or incites actual violence. And the law is still evolving. Doxing—which is universally reviled among those aware of its chilling effects on speech—has increasingly been punished by law in recent years.
One can thus support the First Amendment and the broader concept of free speech while still opposing expression that curtails the speech of others. But our First Amendment jurisprudence relies on a seemingly fundamental assumption: that words themselves do not constitute violence. This assumption is now being challenged. Those who wish to circumvent the decades of work done by our legal system, those who claim that “speech is violence,” offer no limits as to what speech can be censored. When regulations are based on the subjective feelings of individuals, anything can become illegal.
This idea not only undermines a century of First Amendment precedence, it does a disservice to an entire generation. When groups seek to ban speakers with unpopular viewpoints, not only are they silencing a particular viewpoint, they are preventing the potential audience from learning how to engage with views with which they disagree.
And what happens when those making the rules now don’t control the levers of power?
The idea of hate speech has long been used as ruse by totalitarian governments to prohibit speech that they didn’t approve of. As former ACLU President Nadine Strossen wrote in her book, “Hate,” the Soviet Union pushed hard for the newly formed United Nations to include prohibitions against hate speech. The free countries of the world saw through this move, and realized that such prohibitions could easily be invoked to suppress opinions on opposition grounds. Such laws were indeed later used by communist regimes to silence minorities.
Private companies and universities, seemingly ignorant of this history, have created their own speech codes. These codes are often vague and arbitrarily applied. For example, Facebook’s hate-speech regulations grant an exception for humor, but what constitutes humor? Numerous comedians have received sanctions across all social media platforms for perceived violations of these regulations.
Private organizations are not subject to the First Amendment. But instead of adopting speech codes filled with undefined terms and loose notions of acceptable conduct, these organizations could choose to simply follow the boundaries established by American law. These boundaries ensure that ideas can be discussed and debated, within limitations that are clearly defined and universally applied.
Advocates of additional regulations on speech seek to create a standard that is subjective and tends to apply only to those groups with which they disagree. Such a standard is at complete odds with the principles of U.S. law. As Justice Roberts has written, the United States has “chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
If social media companies and universities simply adopted the same limitations on speech that U.S. courts have—no targeted harassment, threats, doxing, inciting violence, defamation, etc.—they would have rules that are clear, tested, and widely supported. Adopting these clear rules would also help organizations distance themselves from claims of bias and may even restore some of the public’s faith in such institutions.
Thankfully, there has been progress on this front. Over 60 colleges have adopted the “Chicago Statement,” which emphasizes how the principles of free speech are essential to the core purpose of a university.
The Chicago Statement is a stark contrast to the restrictive speech codes enacted by many universities, and largely aligns itself with the current state of First Amendment law. While most campus speech codes place sharp restrictions on the type of permissible speech, the Chicago Statement embraces the idea that the freedom to debate and discuss the merits of competing ideas is essential to American life.
In defending the idea of free speech, Supreme Court Justice Oliver Wendell Holmes wrote that the Constitution was “an experiment, as all life is an experiment.” The American Experiment can continue only through vigorous discourse on our most controversial issues. To give in to those who are attempting to silence that discourse would signal the beginning of the end of the experiment.
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