The assault on free speech through "hate speech" legislation and university speech codes has largely been broken. Still, we have to be on guard against attempts to chop away at the First Amendment, and Speaking Freely provides a great deal of useful material. It consists of nine articles by authors expressing a variety of philosophies, but all defending freedom of expression. The articles are all written from a legal more than a philosophical viewpoint; thus, rather than addressing basic issues of individual rights, they have to deal with the mixed state of existing law. I am not qualified to judge their worth as legal briefs, but can say that several of them show the frightening nature of the hate-speech movement and provide forceful rebuttals.
Rather than discuss all the articles in turn, I will just mention a few which are of special interest.
Robert A. Sedler presents a strong argument that virtually any kind of ban on "racist speech" at a state university is unconstitutional in the context of current legal opinion. He cites a number of cases showing that the Supreme Court has repeatedly rejected any laws which restrict speech on the basis of the ideas which it expresses. He quotes the Supreme Court in Johnson vs. Texas (the flag-burning case):
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
Sedler's definition of "racist speech" is so broad as to be neologistic -- it treats women and homosexuals as "races" -- but otherwise the article is impressive.
Judge Scalia's opinion in R.A.V. v. St. Paul follows Sedler's article; this case dealt with a law against the display of symbols which arouse "anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The actual incident was a KKK-style cross burning; as Scalia notes, the act was "reprehensible" and the perpetrator could easily have been prosecuted under other, valid laws. The ordinance which was used by the prosecution, however, applied "content discrimination" and "viewpoint discrimination" to the means by which protests were permitted.
It is disturbing, though, that the court talked around rather than repudiating the earlier Supreme Court decision in Chaplinsky vs. New Hampshire. According to the Chaplinsky decision, laws which punish the use of "fighting words" are valid. Scalia's opinion appears to say that if the ordinance had omitted the words "on the basis of race, color, creed, religion, or gender," and prohibited all symbols that aroused anger and resentment, it would have been acceptable. Such a law would allow any pressure group to veto just about any symbol, and would not be at all consistent with free speech. (William Shaun Alexander raises concerns in his article about the persistence of the Chaplinsky ruling.)
Nicholas Wolfson's article is the most philsophical in the book, and the most disturbing in its implications. He holds that freedom of speech can be justified only by epistomological relativism:
Absolutism in any form is fundamentally contrary to First Amendment doctrine. If certain truths are correct beyond peradventure, then what is the point of free debate, and the marketplace of ideas, in a marketplace where truth and value has been correctly determined.
Wolfson correctly identifies his views with pragmatism: "In a sense, truth is that consensus which develops over time." He does not note that a different theory of truth -- that truth is the accurate identification of the facts of reality, whether the majority agrees or not -- makes the threat of absolutes to free speech vanish. For by this characterization of truth, even the most uncontroversial of principles has to be discovered by each individual and cannot be legislated into a person's mind. When we accept the correspondence theory of truth, we can recognize that free speech is justified not fundamentally by the social need for debate, but by the individual need to inquire and reach conclusions without being coerced.
There is much to admire in Wolfson's article, but his insistence that certainty supports censorship undermines his argument. His own argument can be turned on its head: if the validity of free speech is, like all truths, merely a matter of consensus, then how can it be defended if the consensus decides that freedom is bad?
Perhaps the best single quote in the book comes from W. S. Alexander's article: "The oft-decried institutional neutrality which allegedly legitimizes hate speakers is infinitely preferable to state intervention, because it would be a far better thing to learn to distrust the government and its structures than to distrust the Bill of Rights."
Speaking Freely doesn't provide the strongest possible arguments, but it gives a good selection of pro-free speech arguments which are likely to be influential.
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