Of all the principles of democratic governance, free speech is the most important — and in our time, the most contested.
Since the mid-20th century onward, the U.S. Supreme Court has steadily widened the boundaries of what is legally known as “protected speech.”
In the 1960s, the Warren Court struck down most limits on obscenity — what most people call pornography.
In 2010, the Roberts Court’s notorious Citizens United decision essentially wiped out limits on campaign spending. Now “political speech” can be measured by how big your fortune is.
Americans have seemingly taken these developments in stride, yet fights over speech have increased dramatically since the pandemic.
One front is occupied by the former president. According to his attorneys, there are no limits on what Donald Trump can say and who he can attack. Courts are busily crafting and revising “gag orders” to prevent him from prejudicing jurors and intimidating witnesses in his many ongoing trials.
Despite its many expansions of speech rights, the Supreme Court has always maintained that speech must have limits. In the classic example, no one has the right to falsely cry “fire” in a crowded theater.
The most significant speech controversies, however, may be taking place on college campuses.
Rep. Elise Stefanik of New York celebrated the resignation of University of Pennsylvania President Liz Magill after grilling her at a Congressional hearing last week.
Magill provided unsatisfactory answers to Stefanik’s blunt questioning about whether Jewish students need protection against protestors calling for what she termed the “genocide of Jews.”
Stefanik was pursuing the idea that “elite institutions” have “woke” agendas that create a double standard. Students of color, she says, are protected from hateful speech, while white students, including Jewish ones, don’t merit similar consideration.
It’s a lot to unpack.
Stefanik doesn’t come to the debate with clean hands. The “genocide of Jews” is something she largely made up, though there have been many provocative chants targeting Israel. She’s deliberately inflaming the issue, in the same way her ideological opponents sometimes casually use terms like “racist” and “fascist.”
A former moderate, Stefanik achieved her ascent after her predecessor, Liz Cheney, stuck to the facts about Trump’s behavior when he lost the 2020 election. Stefanik instead embraced Trump’s lies, helped depose Cheney, then took her job.
But the issue of protected speech, and what’s appropriate on college campuses, transcends mere partisan battling.
It’s true that colleges have fallen short of the need to encourage robust, unhindered debate in our institutions of higher learning. The very idea that certain groups of students need protection against ideas and writings that offend them is a slippery slope.
In the culture wars, Republicans have been the ones advocating censorship and book-banning, efforts now being forcefully resisted as the restrictions on free expression they unquestionably are.
Florida Gov. Ron DeSantis’s attempts to prescribe what concepts can be taught in school is especially pernicious.
But college administrators have likewise violated the ideals of free expression by failing to protect it. Speakers with unpopular views have been disinvited or heckled off the stage — though not in Maine, or at least not yet.
This is wrong. Anyone invited to campus by an accredited student or faculty organization ought to have their right to speak protected.
It’s never going to be easy.
In 1977, when the ACLU defended the right of neo-Nazis to parade in Skokie, Illinois, where many Holocaust survivors and descendants live — a stance upheld by the Supreme Court — it lost much of its donor base. One wonders whether America’s premier free speech organization would take the case today.
Still, the ACLU and the court were right; the First Amendment doesn’t amount to much unless it protects, as Oliver Wendell Holmes put it, “the speech we hate.” No one objects to the speech they like.
What campuses need is not speech codes, but more and better speech. Contrary to the idea that college is all about getting a job, it should be about exploring and finding one’s purpose in life.
That exploration necessarily involves confronting new, unfamiliar and sometimes unpleasant ideas and concepts. Grappling with the important issues of the day can also be liberating.
None of this lessens the sad truth that even today human equality is an aspiration far from achievement. But we will make more progress by embracing diversity — and dissent — than through well-intentioned attempts to insulate students from harsh realities.
Thomas Jefferson had complete confidence that the fledgling Republic could “tolerate any error so long as reason is left free to combat it.”
Even in the time of Trump, that’s the compass point we need to steer by.
Douglas Rooks has been a Maine editor, columnist and reporter since 1984. His new book, “Calm Command: U.S. Chief Justice Melville Fuller in His Times, 1888-1910,” is available in bookstores and at melvillefuller.com. He welcomes comment at drooks@tds.net.
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