No, America Does Not Have a Free Speech ProblemAt Least, Not the One The New York Timess Editors Imagine – Justia Verdict

The editorial board of The New York Times made a calculated splash last weekend by publishing a lead editorial under the headline: America Has a Free Speech Problem. The piece has already been effectively demolished by many other writers, but of course that does not stop the editorial from convincing the credulous and the conniving alike that there is a deep and worsening problem with so-called cancel culture.

In a Verdict column last May titled Go Ahead and Cancel Me, You Erasing, Censorious Silencers; Also . . . Woke! I argued that the entire notion of cancel culture and wokeness is void of content and merely amounts to a rebranding of the equally vacuous epithet political correctness. That is, every time a person uses any of those terms, we should ask: What does this person actually mean, other than Im going to put a negative label on this thing I dont like? The answer is always that these various labels are merely a way to make personal grievance sound like a high-minded appeal to Free Speech.

Nothing has changed in the months since I wrote that column, but even so, the mythology of cancel culture has moved from novel rebranding to conventional wisdom among the media elite on both sides of the political divide. It is thus worth looking again at why there is no content to this now-evergreen trope, because invoking cancel culture perversely has the effect of genuinely silencing dissentwhich is supposedly what we all should be trying not to do.

It is especially disappointing when a prominent group with a liberal reputation like the editorial board of The Times feeds this beast, because the result is to strengthen conservatives who continue to claim victimhood when anyone dares to criticize their views. Indeed, the editors roused themselves from their fainting couches and led off their editorial with this:

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.

What in the world are they talking about? Have we not all been taught again and again that Justice Brandeis was clearly right when he wrote: If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence?

Being shamed and shunned, rather than estopped or jailed, is exactly what is supposed to happen to people who peddle falsehoods and fallacies. No matter the label usedpolitical correctness, cancel culture, woke mobs, or anything elsethe reality has always been that certain people want to have it both ways: say horrible things and then take offense when anyone tells them that they have said horrible things. But if politics aint beanbag, as the old saying goes, neither is free speech necessarily pleasant.

Brandeis did not say that additional speech must be crafted not to hurt anyones feelings. The idea is that, for example, Nazis can march peacefully through a town where Holocaust survivors live, and the government must allow that to happen, because we do not want the government to make choices about what is and is not acceptable speech in the public square. But the more speech idea enters the story precisely because the bad speech can and must be challenged. No one imagines, I would have thought, that the people who attempt to shame and shun people with hateful ideologies are somehow abusing their own rights to free speech and association.

The response to this from the editors of The Times and those who agree with them, however, is that we are not talking about truly odious people being shamed and shunned. We are told that regular, everyday folks are now

understandably confused, then, about what they can say and where they can say it. 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 throughall without fearing cancellation.

Again, what exactly is cancellation? Former Governor Andrew Cuomo of New York now says that he was the victim of cancel culture, as does his brother Chris, the fired pundit formerly of CNN. They both lost their positions because of things they did, not what they said, but they are now jumping on the bandwagon and claiming to have been hounded out of office by carping prigs.

It is true that there is a small number of well-worn examples of people having been fired or demoted due to what amounted to misunderstandings, but such injustices have always been with us. There is nothing in the public recordand certainly nothing in that editorialthat shows that this is a unique or growing problem.

The best the editors can do is to cite a recent poll (which they commissioned and paid for) which found that 84 percent of adults said it is a very serious or somewhat serious problem that some Americans do not speak freely in everyday situations because of fear of retaliation or harsh criticism.

In the spirit of constructive dialogue, I hereby offer an alternative reason that the pollsters find people saying that they feel censored: people are hearing about cancel culture everywhere they turn, and they grab onto it as an explanation for whatever is bothering them. Oh, yeah, I remember someone giving me the stink-eye when I said that cripples shouldnt have their own parking spaces. Come to think of it, Ive been canceled!

Even worse, the poll that The Times commissioned is a classic example of a push-poll, that is, a poll with questions designed to shape the answers. In particular, the question to which the editors referred was this: How much of a problem is it that some Americans do not exercise their freedom of speech in everyday situations out of fear of retaliation or harsh criticism? Well golly, even I might say that that is very serious or somewhat serious, if I had a pollster presenting as fact the idea that Americans are not exercising their freedom of speech. Even people who had never heard of cancel culture might respond in the way that the editors wanted them to respond. It sounds bad. That it is not happening is beside the point.

The fact is that there is nothing wrong with people exercising their freedom not to speak, evenor especiallyin everyday situations, whatever that might mean. If I go to a party with a bunch of people who think that the greatest rocknroll band of all time is ABBA, I might decide not to tell them that they are clearly wrong. (I like ABBA, but the greatest?)

More seriously, if a person were to use a term that has fallen out of favor, like mentally retarded, and if she did so out of pure ignorance from not having heard that that term is offensive, I would hope that she would be corrected gently. If so, she would surely appreciate it, whereas if she were shamed and shunned, that would feel bad to her. But that is not a free speech problem. At worst, it means that she should try harder to make her good faith clear and to be better informed about current usage.

But the editors at The Times are sure that that is terrible. They even claim that it a threat to democracy itself, because [i]deas that go unchallenged by opposing views risk becoming weak and brittle rather than being strengthened by tough scrutiny.

I bow to no one in my concern that American democracy is under threatindeed, that it might already have suffered fatal blows and is in the process of bleeding outbut what the editors wrote is self-contradictory nonsense. The idea, apparently, is that we need to expose our views to potential criticismindeed, to tough scrutinybut then when the criticism comes, we can say: Dont make me feel like I have to self-censor, or youll destroy democracy!

For all of its windy rhetoric about the importance of robust debate, The Timess editorial board is afraid of that very thing. In the end, they seem to be saying that there are polite ways to discuss matters. That is true, but when did we adopt the rule that public conversations must be genteel?

Because of its importance in the global media ecosystem, an editorial in The New York Times garners a lot of attention. This past Monday, the Morning Joe crew on MSNBC responded to the editorial with a long segment in which panelistsincluding a person who was favorably quoted in the piece itselfagreed with everything that the editors at The Times had written.

Joe Scarborough noted what he thought was an ironythat the pushback the editors had received demonstrated that people are in fact too censorious. That response, however, is not censure but argument. What I found truly ironic, however, was that Scarborough did not have a single person on the panel who disagreed with anyone else. Scarborough is a NeverTrump conservative and Al Sharpton is a liberal, but all of the people on the panel are denizens of the ecosystem that has been tut-tutting about cancel culture all along.

In more than 17 minutes of discussion, the examples that the Morning Joe crew came up with were painfully minor. Scarborough twice mentioned a time when Condoleezza Rice was disinvited as a commencement speaker, acting as if that was an example of cancel culture. But as I pointed out in a column several years ago, commencements are the worst possible example for the anti-cancelers to invoke, because graduation day is not a seminar meeting but a celebration. I wonder if Scarborough would hold a wedding anniversary party and invite Donald Trump, who has accused him of murdering one of his staffers (and has insulted Scarboroughs wife and co-host, Mika Brzezinski, in very personal terms).

For that matter, I do not recall Scarborough enriching the debate on his showwhich is not a celebratory event but a discussion of important issuesby scheduling anyone who has said such things. Is he, as he claimed on his show regarding the supposedly intolerant cancelers, not confident of his own point of view? Or maybe, as is perfectly normal, he has his own standards for what arguments can and cannot be tolerated, even as he complains when others do the same.

Beyond the commencement example, the Morning Joe panel mostly wrung its hands about how young people supposedly feel shut down on college campuses these days. Even though Scarborough laughingly allowed that it was hardly new for students to tailor their speech to the contextclaiming to have written exam answers in college and law school to cater to his perceptions of a professors preferred answershe insisted that there is something big and new going on. He could not define it, but he was sure that it was bad.

When I was in my first year of law school in 2000, there was a discussion of date rape in my criminal law class. After some conversation about the difficulty of defining that crime, a consensus emerged regarding undue influence, threats of force, and so on. One male in the class then said: If thats the definition of date rape, then I and all of my friends have committed date rape.

He apparently thought that this would make people think that the definition was too open-ended, but a female student responded by saying: Thank you for warning us. In current terminology, that man was thenceforth canceledthat is, his dating life was over at that law school. He was not capable of being shamed, but he was undeniably shunned.

I suppose one could say that we lose something if someone decides not to self-indict during discussions in public, but if the sanction of shunning is not available, what exactly is the point? I know you just confessed to being a serial date-rapist, but in the interest of democracy Im going to continue to be your friend?

The most bizarre aspect of the Morning Joe segment was that it opened with a clip from 1966 in which Senator Robert F. Kennedy gave a speech in Cape Town, South Africa. The speech is a moving description of how free speech can overcome resistance, yet later in the segment, Scarborough claimed that things have become so bad in the US that if Kennedy had tried to give that speech today, he would have been shouted down. That assertion is completely ridiculous, but in any case, Kennedy did not argue that free speech is easy but that it is difficult and that it inevitably meets resistance, precisely because free speech is best used to disagree with the powerful. He did not say that the people who disagree must be well-mannered about it.

To be clear, I absolutely do not like it when people are rude to me. I understand why people like Joe Scarborough and the editors of The New York Times are shocked to have people disagree with them and even to be disrespectful to them. If they are calling for people to be more courteous, then I only ask: Where is your line for when it is acceptable to be discourteous? And if people draw that line where you wish it were not drawn, are you willing to cancel those people?

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No, America Does Not Have a Free Speech ProblemAt Least, Not the One The New York Timess Editors Imagine - Justia Verdict