Do you really know what freedom of speech is?
Sure, we all know the gist – freedom of speech is the right to express any opinion without censorship. It certainly sounds simple. A year ago today, I believed questions like “what’s better, In-N-Out or Five Guys?” or “Is Eli Manning a Hall-of-Famer?” were more controversial than any question around free speech. I’d bet most Americans would have joined me in hearty debate over burgers and football without giving the civil right that enables that debate a second thought… and for the record, the answers are In-N-Out (recent polling be damned) and absolutely not (sorry Eli).
The controversies of the last year, however, have raised questions around the limits of free speech. Is hateful language protected under freedom of speech? Can the NFL really fire a player for taking a knee during the anthem? Separate from what the law currently says, to what extent should hateful or disrespectful speech be protected?
Drawing the limits around freedom of speech is a complicated task – much more complicated than this buffoon would lead you to believe. To be honest, I am still struggling to parse out my own stance on where the limits of free speech should lie in the wake of Charlottesville and Trump’s WWE grudge match with the NFL. In the words of the immortal Run DMC, it’s tricky.
What do we know? What are the relevant arguments? Let’s tackle some of those key questions:
What are the NFL protests about?
The NFL protests began over a year ago, when 49ers quarterback Colin Kaepernick began taking a knee during the pre-game rendition of the national anthem. Kaepernick’s intention was not to protest the flag or anthem, but rather to shine a light on issues of police brutality and racial inequality in America. Of course, many have interpreted the protest as a blatant show of disrespect to the flag, the anthem, and the values and sacrifices those symbols represent.
The issue was reignited this weekend when Donald Trump declared that the “sons of bitches” who kneel during the anthem should be “fired” for disrespecting the United States (the “GOING TO BUILD A SEE THROUGH WALL” chyron in the linked video is a topic for another day). Trump’s comments both reignited and transformed the conversation – depending on who you ask, the NFL protest debate is now about police brutality, racial inequality, standing up to the President, freedom of speech, respecting the military, respecting the flag, or all the above. What you think the conversation is about is probably as strong a predictor as any of what side you are on. For the purposes of this conversation, we will focus on the freedom of speech angle.
Do NFL owners have the right to “fire” players who protest during the national anthem, or would doing so infringe upon their freedom of speech rights?
It’s not quite an open-and-shut case, but the majority opinion is that NFL owners would be within their rights to sever ties with players who participate in anthem protests. While freedom of speech protects citizens from punishment from the government for expressing their opinions, the first amendment does not shield employees from sanctions from their employers. This would be the same argument that Google used to fire James Damore, the engineer who wrote a memo on “diversity” suggesting that the gender gap in the tech industry can be largely explained by legitimate biological differences between the sexes.
NFL contracts also contain clauses which suggest teams are within their legal rights to fire protesting players. For example, one section of the standard contract all players sign stipulates that a team can terminate a player’s contract if the player “has engaged in personal conduct reasonably judged by Club to adversely affect or reflect on Club.” I’m no attorney, but this looks like a case even Lionel Hutz could argue. If the NFL wants to fire these players, they probably have the legal right to do so.
Is hateful or offensive speech protected under the first amendment?
While private organizations like the NFL may be able to take action against individuals who express unpopular or offensive opinions, the government is far more restrained. The Supreme Court reaffirmed that even bigoted and hateful speech is protected under the first amendment as recently as June 19th of this year. In the Court’s opinion from that day, Justice Samuel Alito writes:
The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.
This means that hateful language – even chants that “Jews will not replace us!” from Neo-Nazi protesters in Charlottesville – are protected under the first amendment.
While the law of the land is fairly clear, recent evidence suggests that many Americans are unaware of or do not understand this aspect of freedom of speech. UCLA professor John Villasenor recently published a poll in which college students offered their opinions on free speech. He found that more students expressed the opinion that the first amendment does not protect hate speech (44%) than that it does (39%), with the remainder indicating that they did not know whether or not hateful speech is protected.
While this poll isn’t perfect (college students may not be the ideal sample for estimating the overall views of the country), it does support the notion that, as a nation, we may not understand the nuance of the first amendment as well as we think we do.
What are some of the common arguments in favor of, and against, protecting hateful or offensive speech?
Welcome to the danger zone! While it is beyond my expertise or experience to lay out the full history of this debate, I think it is helpful to share some recent articles that capture the gist of the issue from both sides. As mentioned above, I struggle to decide where I land on this issue myself. Hopefully, sharing what I have found will provoke thought and encourage others to think through the issue for themselves. Is that enough caveats? One more? No? Alright then – onward!
In the Politico article Why Even Nazis Deserve Free Speech, Greg Lukianoff and Nico Perrino lay out the case for protecting even the most repulsive speech in the wake of the Charlottesville protests. One crucial argument centers around whether or not the government can be trusted with censorship powers. This is the classic “slippery slope” concept. Once we empower the government to decide what speech is “too offensive” and must be censored, it will be difficult to draw the line and stop that power from being abused:
We cannot forget, too, that laws have to be enforced by people. In the 1920s and early 30s, such laws would have placed the power to censor in the hands of a population that voted in large numbers for Nazis. And after 1933, such laws would have placed that power to censor in the hands of Hitler himself. Consider how such power might be used by the politician you most distrust. Consider how it is currently being used by Vladimir Putin in Russia.
Another argument centers on the importance of hearing ideas, even those we disagree with most strongly:
…in the same way that breaking a thermometer doesn’t change the temperature, censoring ideas doesn’t make them go away—it only makes us ignorant of their existence….
So what do we do about white supremacists? Draw a strong distinction between expression and violence: punish violence, but protect even speakers we find odious. Let them reveal themselves.
As Harvey Silverglate, a co-founder of our organization, the Foundation for Individual Rights in Education, says, it’s important to know who the Nazis are in the room.
Because we need to know not to turn our backs to them.
On the other side of debate, Kent Greenfield argues that blatantly hateful speech – such as the racist chants that sparked controversy at the University of Oklahoma in 2015 – should not be protected. In his article The Limits of Free Speech, Greenfield responds to writes:
Those not targeted by the speech can sit back and recite how distasteful such racism or sexism is, and isn’t it too bad so little can be done. Meanwhile, those targeted by the speech are forced to speak out, yet again, to reassert their right to be treated equally, to be free to learn or work or live in an environment that does not threaten them with violence… “Speak up! Remind us why you should not be lynched.” “Speak up! Remind us why you should not be raped.”
The First Amendment tells us we may not punish them for expressing glee that someone, someday, would kill a “n*gger.” That would risk a slide down the slippery slope to tyranny.
Yet is the slippery slope so slick that we cannot fathom any restrictions on the worst speech? Is the slope so steep that we cannot recognize the harms flowing from assertions of privileged hatred subjecting whole populations to fear of violence? Does it really risk tyranny to expel a couple of racist punks?
Protecting blatantly racist or hateful language puts the onus of response, of defending one’s basic humanity, on the individual(s) being attacked. Can’t we draw a line against speech that is so blatantly and inherently destructive without tumbling down that slippery slope? It’s certainly tough to defend such repulsive ideas, especially in light of recent research from Kansas University that “the correlation between using the free speech defense and people’s own racial prejudice is pretty high [Pearson r = .43, for all my nerds out there]. It’s racists defending racists.”
And therein lies the dilemma – while the philosophical arguments and legal history around protecting even the most offensive speech is persuasive, it just feels gross to defend Nazis and racists and people who think that Five Guys is better than In-N-Out (kidding).
While the answer to this dilemma may not be clear, the fact we are having this debate speaks volumes. Remember the episode of Saturday Night Live following the election? There is a sketch parodying a group of liberal voters on election night, gathered in their New York apartment to celebrate the inevitable election of our first female President. Of course, things don’t go quite according to plan. As the results roll in, one chardonnay-sipping woman has a realization: “Oh my god… I think America is racist!” (guest host Dave Chappelle is not so surprised).
A year ago today, many Americans – myself included – felt that we had moved past the kind of blatant racism and hate that pulls at freedom of speech, that creates the tension that has emerged as a real question once again. The past several months have surfaced an uncomfortable reality: hateful and offensive ideas that many of us naively believed to be on the decline appear to be alive and well. The question now turns to how our society should handle these ideas and the freedom to express them moving forward.