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Americans Remain Committed to Free Speech, But…

It’s been a rough few years for classical liberalism in America. Elite institutions of higher education have been engulfed with student demands to restrict speech they deem offensive, and many supposed academic leaders have buckled under the pressure. Meanwhile, Donald Trump’s scorched-earth populist campaign has sounded menacing notes when it comes to press freedom, with the candidate promising to amend libel laws to punish publications that criticize him.

The Pew Research Center’s FactTank reminds us that while American liberal norms may be under siege from a variety of quarters, the country remains exceptional when it comes to free speech:

Americans are much more tolerant of offensive speech than people in other nations. For instance, 77% in the U.S. support the right of others to make statements that are offensive to their own religious beliefs, the highest percentage among the nations in the study. Fully 67% think people should be allowed to make public statements that are offensive to minority groups, again the highest percentage in the poll. And the U.S. was one of only three nations where at least half endorse the right to sexually explicit speech. Americans don’t necessarily like offensive speech more than others, but they are much less inclined to outlaw it.

That said, the recent high-profile authoritarians turn in politics and culture may be a warning sign: Pew notes that younger Americans are far more open to censorship than their elders:

There are some important generational differences on this issue. For instance, 40% of U.S. Millennials think the government should be able to prevent people from making statements that are offensive to minority groups, compared with 27% of those in Generation X, 24% of Baby Boomers, and just 12% of Silent Generation Americans.

In other words, it’s not just elite college campuses. Millennials, as a group, report a relatively weak commitment to free expression as it has been understood by American courts. It’s easy to imagine an authoritarian demagogue exploiting this somewhere down the line.

American liberal norms, while embattled, remain strong. No matter who wins this election, America will likely remain more protective of controversial speech than peer countries. But to remain vital over the long run, principles like free expression need perpetual, energetic advocacy. Is our leadership class up to the task?

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  • WigWag

    “Meanwhile, Donald Trump’s scorched-earth populist campaign has sounded menacing notes when it comes to press freedom, with the candidate promising to amend libel laws to punish publications that criticize him.” (Via Meadia)

    There is nothing “menacing” about the changes to libel law that Trump advocates. Specifically what he wants to do is repeal the Supreme Court decision, New York Times v Sullivan. First of all, it is unclear that the case can be reversed by statute because it represents The Supreme Court’s reasoning about the First Amendment. More importantly, if the case could be overturned by statute it would be a good thing not a bad thing.

    The case created a two part test by which to judge libel cases against public figures. It required that for a public figure to sue for libel, not only would he have to prove the alleged libelous statement was false but also that it was made with actual malice (which means that the entity making the statement knew it was false) or that it was made with gross negligence.

    The Court has been very broad in its interpretation of what a public figure it is and because the plaintiff has to prove gross negligence or actual malice, recovery for libel by a public figure is almost always impossible.

    It is a gross exaggeration to say that repeal of the New York Times v Sullivan would grossly limit free speech or freedom of the press; that us unless you believe that the right to make repeated false representations promotes the freedoms that our founders sought to protect when they passed the First Amendment.

    The rule enshrined in the New York Times v Sullivan is not operative in Great Britain; it is easier for a public figure to sue for libel there. Nobody who knows anything about the British press would say that its less lively or free-wheeling that the American press.

    People of good will can disagree about whether the ramifications of the case promote or hinder the public good, but suggesting that opposition to the test for libel articulated in that case is “menacing” is nothing more than hogwash.

    • M Snow

      Great summary. Thanks.

    • Kevin

      Actually British libel law is pretty draconian and has lead to all sorts of unsavory types from around the world using it to punish their detractors.

      • f1b0nacc1

        While true, an important element of this is that British libel law does not allow the truth of the statement as a defense. In fact, “the greater the truth, the greater the libel”, is a truism in British libel courts, whereas in American ones, the truth is an absolute defense.

    • f1b0nacc1

      As always, a fine comment, but let me offer a (very minor) quibble. NYT v Sullivan actually imparts a three part test for libel of public figures. Not only must a statement be false, and must that statement evince gross negligence, it must also be defamatory (of course this is the same as with libel of a non-public figure). While this might seem like a minor concern, it is often quite a significant finding that a statement is not libelous because it is not defamatory. Given the hysteria with ‘microaggressions’ and other lefty foolishness, this concept is rather significant.

    • mgoodfel

      As Trump has pointed out, you can sue anyone for anything, and make them spend thousands defending themselves. Currently, at least you have a good chance of successfully defending yourself if you can afford it. Anything that makes that harder is going to encourage nuisance lawsuits.

  • LarryD

    The Left has been orchestrating the on-campus campaign to silence any opinion they disagree with. The press tries to maintain its pretense of neutrality, but not only is that pretty threadbare, wikileaked emails show actual coordination with the Clinton campaign. And then there are the Democrat attempts to incite violence at Trump rallies.

    But it’s all Trump’s fault.

    • Beauceron

      Funny how that works, isn’t it?

      I am no Trump fan , and won’t be voting for him, but you have to work really hard not to notice that as Trump supporters are beaten in the streets, Republican campaign offices are firebombed, homes with Trump signs out front vandalized, political rallies interrupted so speakers can’t deliver their speeches, the media keeps reporting what fascists Trump’s supporters are.

      Odd, eh?

      • f1b0nacc1

        To paraphrase Tom Wolfe, “The dark night of fascism is always coming from the right and only manifests itself on the Left”

  • Beauceron

    Won’t last for long.

    HRC is going to be elected, and with her The Machine gets another 8 years in power and the country simply won’t survive that– heck, we will not survive 8 years if Obama. I read today that the Border Patrol has reported illegal crossings are up 23% this year– meanwhile our press– including AI– just reports that Mexican immigration is down under Obama. They work along with Obama and the Leftists to string us along until it’s all too late. The tipping point has arrived and I am afraid after 8 years of HRC we will move to what is essentially a one party state. They have marched through the major institutions of our society– they own the education system outright, and they own nearly all of the media complex. Now they move on politics.

    Thank you elites. Thank you so much for wrecking my country root and branch.

  • Andrew Allison

    College educated millennials are the product of a left-wing pofessariat which has no interest in real free speech.

    • f1b0nacc1

      It’s not just millennials though….FG is an old fart, and he seems perfectly comfortable with silencing speech.

      • Andrew Allison

        So are the members of the left-wing professariat. It’s “progressives” of any stripe that want to ban debate.

        • f1b0nacc1

          Actually, the Lefties are deeply committed to THEIR freedom of speech, and just as deeply committed to ending ours.

          • Andrew Allison

            Well yes, that is what I intended.

          • FriendlyGoat

            Ours? You mean the a$$hole club?

          • Tom

            Given that your definition of that term seems to be “people to my right who disagree with me,” taking that seriously is a little difficult.

      • FriendlyGoat

        Cajoling people to watch their mouths on stuff which has no purpose other than the intent to offend is somewhat preferable to the offended finally having had “enough” and just shooting the mindless bullies.

        • f1b0nacc1

          Thank you for making my point so perfectly

          • FriendlyGoat

            You didn’t have a point. If you did, you could make it without FG.
            At least you could respond to me actually being in the conversation rather than using me in absentia for another lying example of the point you don’t really have. I’m not against free speech, I’m for manners. It’s really better that being so needled that violence is called for to back down both you and your ilk. In recent weeks you tried to tell me how free you were to trash-talk all your neighbors and passers by. Be glad I’m not one of them.

          • f1b0nacc1

            You aren’t a point, you are simply an example….and easily used to demonstrate the point.

          • FriendlyGoat

            Only because I am not close enough to you to “explain” to you in person that your smart-a$$ed-ness could easily hit a hard limit.

            One of the things I have often wondered about you is whether your employer (if you have one) or your clients (if you have those) are aware of how much time you devote to mouthing off and the tone of the contents.

          • f1b0nacc1

            See, you made my point…

            You really need to work on your self-control, you are childishly easy to use for these demonstrations.

          • FriendlyGoat

            And you really need to read my edit immediately above.

          • Tom

            Given that I think most of his activity here is in the evenings, your attempted smear on his character fails on the first count.
            Second, I wouldn’t be going around complaining about “tone” if I were you.

          • f1b0nacc1

            You are embarrassing yourself, but please…do go right on and enjoy yourself… I can think of no better way to make my point for me.

    • johngbarker

      I daresay that many have no interest in educating students; grade inflation and surrendering to whimsical student demands is symptom of profound malaise and irresponsibility.

  • Boritz

    “Americans are much more tolerant of offensive speech than people in other nations.”

    This can’t be right because American exceptionalism is a myth.

  • Frank Natoli

    the candidate promising to amend libel laws to punish publications that criticize him.
    Ooooh. Sounds terrible, almost a reason to vote for the Witch. But wait. If someone writes something that is not true about Trump, the legal criteria for him to obtain a libel judgment against the liar is different, because he is a public persona, than if someone wrote something that was not true about a nobody like yours truly. Trump would have to prove not only that the statement was false, but that the writer KNEW it was false, and that to the satisfaction of a jury, not of Trump’s peers, but of the writer’s.
    Sure sounds different when analyzed by someone not in the tank for the Witch, doesn’t it?

    • f1b0nacc1

      Referring to HRC as “the Witch” is a horrible insult to members of the Wiccan-American community (grin)

  • mgoodfel

    Are these results broken out by ethnicity anywhere? Because Millennials are also far more likely to BE minorities, and might naturally object to speech offensive to them.

  • FriendlyGoat

    Does anyone understand the difference between saying “I do not believe Muhammad is a real prophet” and saying “Muslims are *&%#@#!”
    Does anyone understand the difference between saying “I do not agree with Hillary Clinton on policy” and calling her “Killary” or Hitlery” for sport or impact?
    Does anyone understand the difference between genuine argument about concepts and ratcheted-up derision for lack of better debate skills?

    I have spent a lot of time in the comment sections, and the mounting evidence is that many on the left side do not—–and a majority on the right side do not.

    • Anthony

      FG (observational note), you raise a very telling observation above. Internet boards, comment sections (quality dependent of course), and social media have availed access to all comers (over-the-hill types, has been types, never been types, want to be types, delinquents, et al). That, in combination with human nature and culture corrosiveness (masked as freedom of speech in some instances), leaves you where the above introspection (trying to make sense of the noise) comes out as commentary.

      Additionally (for me), your comment brings to mind something I learned in an undergrad philosophy class: “skilled arguers are not after the truth but after arguments supporting their views.” The confirmation bias,FG, remains a built in feature of the argumentative mind (as you continue to spend time, keep that in mind).

      • FriendlyGoat

        Perhaps you have some experience in real competitive debate. I don’t. If you do, how would “There you go again” (Reagan to Carter in 1980) or “Senator, Jack Kennedy was a friend of mine and you are no Jack Kennedy” (Lloyd Bentson to Dan Quayle in a VP debate) have been scored? Those are famous knock-out lines in debates scored by the general public, but were not on-topic for any real issues.

        Today, it seems we have forms of political “debate” that do not particularly support actual issue positions on much of anything, no? If we, the audience, would like to get at “the truth”, we’re just outta luck, it seems.

        • Anthony

          The two Presidential (Vice Presidential) debates you reference were modern TV theatre with those line inserted for television (audience) effect if opportunity availed – not really debate which I think you allude.

          Nevertheless, that which you call debate now is issue free and more performance. The “truth” to be ascertained is very rarely wanted more than finding evidence to support an already believed political position. But, I think as long as you (and others actually seeking the truth) continue to disconfirm the claims of others and that disclaiming is not taken “personally” truth can emerge in what you label debate. However, it is essential to have intellectual and ideological diversity prevalent when truth is goal (as well as civil interaction).

          • FriendlyGoat

            A central issue running through elections of the past several decades is whether (and if so, how) high-end tax cuts “create jobs” that most people might consider to be good jobs. We never really get the debate on that point and we are ill-served that we don’t. Everybody and his dog has a “view” on it and few of them are more than an inch deep. Maybe we need some sharp high-schoolers to drill down on the point in a real debate and illuminate their parents on all sides—-skipping altogether the so-called experts and the candidates. Just throwing out ideas. We need some kind of “embarrassment factor” to get our real players back on track. SNL spoofs ’em all the time. Maybe some kids could show ’em up for seldom displaying the gravity we all really deserve to be getting.

          • Anthony

            Throwing out ideas is a good thing; no embarrassment factor but as a friend told me a long time ago, “one funeral at a time” may be best answer. And yes, high-school if not elementary-school is where we ought to invest in answers. Something in line with your current thoughts, if I might take the liberty: http://www.vox.com/conversations/2016/10/17/13245808/andy-stern-work-unversial-basic-income-technology-artificial-intelligence-unions

          • FriendlyGoat

            I don’t really argue with the UBI concept much except to predict that no one is likely to ever get it enacted. Yes, the need for it is coming. Yes, some high-level thinkers can justify the theory. No, there is no real source for the money. No, politicians will not be allowed to vote for it.
            No, it doesn’t satisfy the desires of people to see themselves as capable and useful. No, it does not keep people busy and therefore out of trouble. The idea needs a “lot of work”.

          • Anthony

            I know very little about UBI (I think Charles Murray has suggested something similar as policy) and linked article given your idea sorting. Still, public policy (economics, taxation, citizenship reciprocity, demographics, capitalism, etc.) is a constant of our society. It needs a lot of work (societal engagement). A dynamic configuration, if unheeded, means anything can happen! So going back to where we began, the debate must have truth as its goal and you have to continue disclaiming for those who have ears to listen or eyes to read.

    • Tom

      “Does anyone understand the difference between genuine argument about concepts and ratcheted-up derision for lack of better debate skills?”

      A lot of people want to pretend they don’t. Those who deride want to claim they’re arguing about concepts. Those who are uncomfortable with having their ideas challenged want to claim their opponents merely deride them.

    • Anthony

      FG (you’ve been mute but it’s understandable as TAI has offered little last several days), your tormentors are quick to label you “left” but here’s a take on anti-democracy sentiment from the other side: https://newrepublic.com/article/138019/right-giving-democracy

      • FriendlyGoat

        Wow, thanks. That’s a revealing article. As you may know from some of my ramblings here, I have this recurring mental theme in the back of my head that modern political conservatism has been (since the eighties) and is now literally ruining the spirit in many of the churches, especially Protestantism.

        I spent a lot (lot) of time in and around churches and church people in the first 43 years of my life—-by various circumstances with Methodists, Church of the Nazarene, Assemblies of God, Baptists, Mennonites, both ELCA (liberal) and LSMS (conservative) Lutherans and one independent megachurch. That so many of these people came to first support the economics of Reaganism, now morphing to the loud, rude, mindless support we see for all the facets of Trumpism is to me is both a mystery and a catastrophic tragedy. Now, this article is telling us that some popular religious leaders are telling the flock(s) to look to the likes of Putin to save Christianity. That one is so far over the top of “loony”—–it’s hard to even find words to describe the misguidedness.

        Then—–then—-there is the other theme in this piece about the Political Right’s recognition that it doesn’t like either women or non-whites voting. Yikes.

        • Anthony

          I thought you would find piece newsworthy (and you’re welcome). Relatedly, Glenn Beck on Charlie Rose (10-24-16) echoed your exact thoughts to the letter (including Russian tie-in).

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