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We’re proud that America is the land of free speech. That right is recognized in the First Amendment, and we usually take it seriously. It wasn’t always the case.
In John Adams’ administration, the Sedition Act made it a crime, punishable by fine and imprisonment, “to write, print, utter or publish … any false, scandalous, and malicious writing against the government … or to excite against [it] the hatred of the people …”
Thankfully, Thomas Jefferson and other libertarians got rid of that law.
Under Woodrow Wilson, Eugene V. Debs was sentenced to 10 years in prison for calling for draft resistance during World War I. His conviction was upheld by the Supreme Court, led by that alleged civil libertarian Justice Oliver Wendell Holmes Jr.
Today, fortunately, no one goes to jail for criticizing the draft, or the U.S. government’s wars.
So we’ve made progress—in some areas. But in others, we’ve regressed.
I once interviewed someone who said words are like bullets because words can wound; this justified some censorship in his eyes.
Ugly words in a workplace can indeed make it hard for someone to succeed at work, and racism in school can make it hard to learn. But I say words are words and bullets are bullets.
Speech is special. We should counter hateful speech with more words—not government force.
I discussed this issue with lawyer Harvey Silverglate, who has devoted his career to defending speech. These days, he sees new threats.
“The old threats we managed to beat mostly in court and also in the court of public opinion,” Silverglate said. “So the censors have simply come up with new terms for speech they don’t like. They call it ‘harassment’ or … ‘bullying.’”
The “harassment” attack on speech came from feminists who said sex talk in the workplace must be forbidden because certain statements harass women.
“They tried to restrict speech on the theory that harassment may make it impossible for somebody in a historically disadvantaged group to get their work done, to study and get an education.”
I pointed out that sexist speech might in fact do that—if you have a bunch of guys making cracks constantly about women.
“You’ve got a right to respond with horrible speech if you are attacked with horrible speech. As long as that’s a two-way street, the First Amendment has worked.”
Silverglate was once hired by faculty members at the University of Wisconsin who objected to a speech code intended to protect minorities, women and gays from offensive expression.
“I didn’t actually win that battle. You know who won it? A gay student got up and said, ‘If you’re looking to have a speech code to protect me, don’t do it, because I actually like knowing who hates me. It’s useful. It tells me when I should watch my back.’”
Silverglate started a group to protect speech on college campuses, FIRE, the Foundation for Individual Rights in Education. His co-founder was Alan Charles Kors, with whom he wrote “The Shadow University: The Betrayal of Liberty on American Campuses.”
FIRE lawyers defended students at Northern Arizona University who wanted to hand out small American flags to commemorate the 10th anniversary of Sept. 11. They planned to distribute the flags outdoors, but it rained. So they went inside the student union, where four different university officials told them to stop.
The students refused, and two were charged with violating the student code. FIRE helped the students get media coverage that pointed out that the First Amendment protects students at public institutions. The school dropped its case against the students.
Several colleges used to have rules requiring that all student protest be held in a small, out-of-the-way “free speech zone” on campus. FIRE mocked these as “censorship zones,” and colleges have gotten rid of most of these restrictive rules.
FIRE often strikes blows for free speech simply by bringing unfavorable publicity to a heavy-handed school. As Justice Louis Brandeis said, “Sometimes sunlight is the best disinfectant.”•
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Stossel is an author, and hosts “Stossel” on Fox Business Network. Send comments on this column to ibjedit@ibj.com.
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