To say that free speech has received much attention of late is a tremendous understatement. The New York Times, for instance, recently published an article entitled “How Conservatives Weaponized the First Amendment.” The gist of the piece, whose title comes from a recent dissent by Supreme Court Justice Elena Kagan, is that free speech has become a tool used by the Right to justify an anti-progressive agenda. However, the article doesn’t address why free speech might have been “weaponized” by conservatives. Perhaps this is a new strategy to discount the Left and sneakily advance a conservative agenda in the courts, or perhaps it is in response to an actual increase in attacks on conservative speech or ideas. Given the increasing willingness of people to speak out about their own experiences being on the receiving end of hostility for non-progressive ideas, the second explanation seems more than plausible. If the increased invocation of the First Amendment is in response to more frequent threats, it’s difficult to substantiate the claim of weaponization—invoking the First Amendment has simply become a rational response.
But focusing narrowly on the way the First Amendment has been invoked in the courts, as the New York Times article does, risks missing the more damaging forces that are corroding our current discourse, pushing partisanship further to the extremes, and increasing polarization.
Free speech is not simply about the words one is legally allowed to utter. A more holistic view consists of the broad freedom to express, to question, and to criticize ideas. Richard Reeves and Jonathan Haidt summarize this tradition well when they say of John Stuart Mill, “[his] main concern was not government censorship. It was the stultifying consequences of social conformity, of a culture where deviation from a prescribed set of opinions is punished through peer pressure and a fear of ostracism.”
The health of a society depends on the ability of its members to debate a wide range of topics without fear of reprisal, from the state or from other citizens. As a professor of sociology, one of the more ideologically captured disciplines in academia, I’ve seen firsthand how speech can be subtly constricted even absent formal censorship. For instance, I recall talking to a colleague about another scholar’s work on microaggressions. At the time, I was expressing my confusion about how microaggressions were defined and also about the broader claims being made. I asked my colleague whether he thought I could question the other scholar about it. I was told no, probably not—if I were black, yes, he said, but as is, no. I was frustrated and wondered why some topics should apparently be exempt from criticism, but in the end I remained silent. My free speech wasn’t violated—I chose to stay quiet, as Mill predicted, because my colleague had voiced out loud what I already suspected to be true.
Almost everyone can agree that certain ideas should lie outside the lines of socially permissible speech. But we have drifted alarmingly far from the recognition that those lines should be drawn broadly, determined through a coercion-free process aimed at finding consensus. When we winnow the parameters of acceptable opinion, questions, and criticisms by manipulating incentives to self-censor, hostility and polarization often follow. Shaming and the use of outrage to assert power are two of the most common tactics that, intentionally or not, draw boundary lines where they shouldn’t be drawn.
Shaming can be an effective way to apply pressure so people adhere to social norms. However, it is a tool that has been extended to topics that only a subset of people, usually those on the Left, believe are unacceptable. Consider a recent article in The Nation entitled “The Social Shaming of Racists is Working,” in which the author talks about the social costs now linked to “the assertion of private authority over public space.” The focus is on a small number of well-publicized, video-recorded events in which (generally white) people are seen harassing minority group members.
Prominent among them is Aaron Schlossberg, a New York lawyer who loudly and publicly berated employees at a restaurant for not speaking English, then threatened to call ICE on them. If public shaming were restricted to such extreme examples of bad behavior, it’s unlikely that anyone would be worried about it. However, the Nation article makes no distinction between this sort of behavior and the underlying concerns that may be motivating it.
A charitable view of the purpose of shaming might suggest the goal is to prevent racists from taking over—to show that racism won’t be tolerated. A less charitable interpretation might suggest that the goal is to cultivate a culture of fear among those who would otherwise deviate from the dominant progressive narrative. To go with the charitable assessment, one might ask: Is Aaron Schlossberg racist or “just” horribly behaved? Even asking this question may strike some as profoundly offensive. But it is useful to do so to think through the effects of shaming.
In the Nation article, the judgment is clear: “Schlossberg’s rant doesn’t amount to a civilized difference of opinion; it’s racism, pure and simple, followed by threats.” And perhaps that is right—Schlossberg could just be an unrepentant racist. But we should nonetheless be careful about painting with broad brushstrokes, and conflating one person’s deplorable behavior with concerns that may be more sensible.
Consider a 2017 article in which the author argues for a recognition by the Left of certain concerns raised by immigration, while continuing to support immigration as a goal. The author writes:
Liberals must take seriously Americans’ yearning for social cohesion. To promote both mass immigration and greater economic redistribution, they must convince more native-born white Americans that immigrants will not weaken the bonds of national identity. This means dusting off a concept many on the left currently hate: assimilation.
Democrats should put immigrants’ learning English at the center of their immigration agenda. If more immigrants speak English fluently, native-born whites may well feel a stronger connection to them, and be more likely to support government policies that help them. Promoting English will also give Democrats a greater chance of attracting those native-born whites who consider growing diversity a threat.
These legitimate concerns about assimilation and social cohesion may well underlie Schlossberg’s inexcusable outburst. Yet because the stigmatization covers both the behavior and the unrevealed motives, it taints any person who might have a similar sense of unease, including people who are much more reasonable than Schlossberg.
Another way to police ideas is to use the power of public outrage. Similar to shaming, public outrage has its place in righting wrongs. However, when it comes to controversial issues— issues, by definition, on which there is no consensus—outrage is sometimes given the power to shut down the conversation entirely, creating a chilling effect not just for the people directly targeted, but also for everyone who aligns with or is merely curious about the target’s perspective. And while shaming is primarily a strategy used by the Left, the Right does it too. Shaming and public outrage are bipartisan, as the following pair of examples shows.
Case One: Mayor of Durham, NC vs. Jordan Peterson
Jordan Peterson has risen to a stratospheric level of fame lately, in part due to his arguments for freedom of speech. He first gained attention for his objections to Canadian legislation regarding the mandated use of alternative transgender pronouns. Such views have now gotten him in hot water with a progressive politician in North Carolina, in a free speech scandal that neatly proves many of his own points.
At the time of this writing, Peterson is still scheduled to speak at the Durham Performing Arts Center in September. However, on July 6, Durham’s mayor issued this statement (to which Peterson has already responded) decrying his ideas and attempting to deny him use of the facility:
(W)e wish to emphasize that a person’s right to free speech does not include the right to a platform or an audience. As many in our community have been disturbed and angered by Mr. Peterson’s racist, misogynist, and transphobic views, we would like to use this opportunity to reiterate our commitments and values to all of you as your elected representatives.
The statement ended with an exhortation:
We invite the Durham community to recommit ourselves to these values as a city and a community and to reject and resist bigotry wherever we encounter it.
While speaking out against racism seems, in principle, an appropriate mayoral task, applying the label “racist” to topics and opinions that many don’t see as meriting the charge has the unavoidable effect of alienating—and even radicalizing—those who feel unjustly attacked. In this case, the mayor’s office is stigmatizing anyone who might be interested in what Peterson has to say—most of whom do not agree that those labels (racist, misogynist, transphobic) are being applied appropriately. Further, because the list of criteria used by the Left to assign allegations of racism and sexism appears to be constantly expanding, the range of acceptable speech is contracting.
Case Two: Texas A&M vs. Tommy Curry
The Right has its own blind spots on free speech, as seen in the saga of Texas A&M Professor Tommy Curry. The Chronicle of Higher Education wrote an article in July 2017 about Curry’s travails: In early 2017, a video interview he had done on race and violence five years prior resurfaced and went viral, with the assistance of a conservative blogger. In the 2012 video, Curry said, “White conservatives speak reverently of gun rights. . .But when we turn the conversation back and say, ‘Does the black community ever need to own guns? Does the black community have a need to protect itself? Does the black individual have a need to protect himself from police officers?’ We don’t have that conversation at all.”
Texas A&M initially declared a modicum of support for Curry, saying:
While professors have a First Amendment right of course to offer personal views on their own time, university policy prohibits them [from doing] so in a way that creates an appearance that they are speaking for the University.
However, buckling under pressure from alumni and donors, the university ultimately distanced itself from Curry with reference to his views as “reprehensible.” An alternate response, and a more charitable interpretation of Curry’s ideas, might have included the following statement that Curry had offered the administration on his own behalf:
Dr. Curry, drawing from the Second Amendment tradition, suggests that the law’s failure to protect the lives of Black, Latino, and Muslim Americans requires new conversations which may require self-defense and more radical options than protest. In no way does his work promote or incite violence toward whites or any other racial group.
While no one is violating Curry’s right to free speech, the professional penalties associated with the university’s statement (to say nothing of the usually concurrent threats that go along with outrage) aim to silence him.
The Social and Political Costs of Policing Ideas
The damage that can be done without a single legal infraction on free speech is far broader than that which comes from tangible limitations on the First Amendment. Shaming, outrage mobs, and other techniques to restrict speech via social pressure have a poisonous effect on the public discourse as a whole. As one author stated, citing the work of Lilliana Mason:
“‘The more sorted we become, the more emotionally we react to normal political events.” And when emotions are heightened, everything becomes a threat to status. Politics becomes more about anger. . .The angrier the electorate, the less capable we are of finding common ground on policies, or even of treating our opponents like human beings. (emphasis added)
Policing ideas makes people more curious and more righteous about the ideas that are being policed—just ask any parent what happens when they tell their child that they can’t have something. Does the child quietly accept this decision and walk away, moving quickly on to a different topic? Certainly not in my house.
Shaming Schlossberg may be an example of social pressure working as it should. However, shaming the concerns that lie beneath the invective is shallow and short-sighted. While the suppression of ideas does not create the screaming lawyer, it is naive to ignore the fact that, for every Aaron Schlossberg, there are many more who sympathize with his (likely) concerns, if not his mode of expression. Even in the face of dangerous claims that words are violence, there is no shortcut around allowing people to express and criticize ideas respectfully on a wide range of topics and from a wide range of perspectives free from social penalty.
It may be that the singular benefit of a Trump Administration is that it acts as a pressure release valve for the segment of this country that has felt stifled for years. To learn nothing from this experience and to continue creating an environment where ideas are constricted and anger and polarization flourish is an irrational, emotional response that will not lead to better outcomes by any metric.
Many on the Left look hopefully for Trump supporters who show regret for their voting choice—in large enough numbers, this could signify the possibility of a shift in coming elections. However, relinquishing one’s support for Trump is not the same as aligning oneself with the Left. Further, many on the Left willfully ignore the former leftist allies who have been chased away by the approach described here—a point that is relevant as we move forward into upcoming elections.
If the Left isn’t persuaded by arguments centering on the importance of open public discourse and the reduction of anger and polarization, maybe the reality of another four years of a Trump Administration will bring them to their senses. Hopefully, it doesn’t come to that.