A couple of weeks ago I wrote about the shameful and pathetic conservative response to the averted massacre in Garland, Texas; in the wake of the shooting, numerous so-called “conservative” commentators could only marshal the most tepid of defenses for freedom of speech while investing far more time in shaming the people who were risking their lives for it. It’s easy to pontificate from the safety of a cable news desk while brave Americans are dodging bullets from psychopathic madmen, of course. It was a disappointing sign that free speech has become something of an albatross for a great many people: “Sure, we should have free speech,” the thinking goes, “but maybe we should obey the insane murderers with guns, just to be safe, you know?”
Anyway, the problem isn’t limited simply to the talking heads; it’s more general than that:
YouGov’s latest research shows that many Americans support making it a criminal offense to make public statements which would stir up hatred against particular groups of people. Americans narrowly support (41%) rather than oppose (37%) criminalizing hate speech, but this conceals a partisan divide. Most Democrats (51%) support criminalizing hate speech, with only 26% opposed. Independents (41% to 35%) and Republicans (47% to 37%) tend to oppose making it illegal to stir up hatred against particular groups.
Technically these numbers are somewhat diffuse, but then again, look more closely at the actual breakdown: over half of Democrats want to clap people in jail for hate speech (whatever “hate speech” means). That means if you fill a room with one hundred Democrats (equivalent to, say, roughly the full force of the Lincoln Chafee voting bloc), fifty-one of them want to criminalize mere words. In a sense this is unsurprising, for Democrats as a party are notably hostile to the First Amendment. Hillary Clinton herself has declared that she would prefer to nominate Supreme Court justices who oppose Citizens United. Citizens United, remember, was a case that concerned a conservative lobbying group’s right to air a film critical of Hillary Clinton; that is to say, Hillary Clinton openly opposes a Supreme Court decision that made it legal for Americans to criticize Hillary Clinton. Bernie Sanders has attempted in the past to make it illegal for Americans to spend money while in corporate form (the Left generally believes that Americans lose their Constitutional rights when they incorporate as a business). Democratic politicians really, really hate free speech, chiefly because much of it is used to criticize Democrats. Why shouldn’t over half of their constituency want to repeal the First Amendment?
That being said, look at the other numbers: over a third of Independents, and over a third of Republicans, are in favor of criminal sanctions against words—words! Those numbers strike me as rather astounding, and what they say more than anything is that conservatives and libertarians are doing just a dismal job at stressing the importance, the value and the utter uniqueness of the First Amendment. These numbers shouldn’t be above thirty percent or even thirteen percent. The free speech clause is inestimably precious, and it should be an easy sell; it shouldn’t be difficult to get people on board with the philosophy of, “Hey, we’re not going to toss you into prison just because you say something unpleasant.” Is this really that arduous? What are we doing with our time if we’re failing to convince over thirty percent of our natural constituency that words shouldn’t be illegal? Do we find such a task that difficult?
Apparently so, and—though I am an optimist in most things—I think that these numbers are a bad sign for the future of free speech in America. Assuming these percentages either stay where they are or else grow larger in favor of free speech criminalization, the climate could be quite hostile within a few short decades: a couple of theoretical terms of Clinton court-packing, combined with the ever-growing intellectual stagnation and liberal hysteria found on most college campuses, coupled with the rest of the developed world’s utter abandonment of Western freedoms, would mean a socio-political era in which the primary voting demographic is going to be majority anti-free speech, the political class is going to be even more hostile to the First Amendment than it already is, and the judiciary will just go ahead and affirm it all for form’s sake.
Regarding the Supreme Court, there is, of course, the possibility that a Republican could take the White House for the next term or two, and thus be around for a decent number of justice retirements; still, I think relying on this would be a long shot. I doubt the utility of a Republican-nominated justice would stretch as far as that of a Democrat-nominated one; that is to say, it is entirely likely that a liberal justice would offer more bang for the Left’s buck than a conservative justice would offer for the Right’s. This is just the nature of things in an era increasingly defined by liberal belligerence and conservative diffidence (remember that the court found in favor of Obamacare in 2012 in part because Chief Justice Roberts wanted to protect his “legacy”).
All of this is politics, of course, and any outcome is dependent upon a great many factors that may or may not come to pass. We shall see. What is most important, of course, is that the American culture of free speech is preserved and protected; without it, all is lost. And, along with these dismaying poll numbers, there is evidence that such a culture is in the process of dying:
Someone like Dick Cheney, for instance, is free to speak about his beliefs, his past, his hopes and dreams, his view of foreign affairs, or whatever he likes anywhere he wants to. And he does. He’s a public figure and can appear on TV talk shows, can publish op-ed pieces, blogs, essays and books.
But the First Amendment wouldn’t apply if he were invited to speak at a college commencement and the school rescinded that invitation. The First Amendment specifically refers to government intervention in individual expression. That’s simply not the case where a speaker proves controversial and campus protests get that person uninvited.
This is entirely true, and yet it points towards a terrible trend on college campuses these days, in which the spirit of free speech is flatly rejected: you hardly need to worry about political attacks on the First Amendment when your country’s young scholars are plugging their ears and going “Lalalalala” to even the most moderately differing opinion. We’d be nuts to think that American free speech will inevitably remain as broadly protected and as widely celebrated as it has been in the past. There is certainly danger of the First Amendment being axed in favor of government-controlled speech; but there is also the very real and very powerful stagnation of intelligence and open inquiry going on at most of our contemporary educational institutions. It does not bode well for the future; you hardly even need a poll to see it.