Comments on Freedom and the Clash of Ideas

If any speech or expression is deemed unworthy of protection on the basis of its content, no speech or expression is safe.

“The clash of ideas is the sound of freedom.”  (Lady Bird Johnson)

I grew up in the 1960’s and 1970’s, bring born at the very end of 1959. My young, impressionable mind recalls the assassination of JFK, Robert Kennedy and Dr. Martin Luther King, Jr. I remember watching the riots during the Democratic National Convention in Chicago, the Kent State protest and shooting, the footage of the Vietnam War and the Nixon impeachment on the nightly news.

The world seemed a chaotic place, no less than it does today, on this 4th day of July, 2020.

In the 1960’s, the dissident voice championed First Amendment rights that included the freedom of assembly and freedom of speech. I remember that freedom cry as a child superimposed over news footage of a burning US flag. The patriot in my young heart was equally shocked by the flag burning and impressed by the necessity of the freedom that allowed that flag to burn.

In law school, I learned the nuances of the jurisprudence that grows out of our US Constitution in which the First Amendment is enshrined. The clash of ideas is so sacred in our constitutional framework that it allows even the idea of abolishing that very framework to be heard.

In the 21st Century, many things have changed, while somethings have remained the same. Many of the dissident ideas from the 1960’s have become mainstream, and more “conservative” voices have become dissident. I am no longer shocked by the burning of the flag (and, perhaps, the point of burning a flag is no longer poignant for the same reason).

The angst of the 1960’s of my youth has been replaced by the angst of the 21st Century of my middle age. The reasons for my angst are much different, yet very much the same at their core. I have grown and changed in my views, but the emotional strain of the human condition remains.

I fear, at times, that the framework that protected the freedom to burn US flags in the 1960’s might, itself, be destroyed in my lifetime, or the lifetime of my children, by the fire of ideas that are antithetical to that freedom.

The ideas in colleges and universities around the country that seem to dominate those institutions promote the silencing of dissident voices. Speaker engagements are canceled as the loudest voices want not even a whisper to be heard in opposition.

One theme of the dominant social, philosophical and political ideologies that thrive on college campuses today is that certain voices should be silenced, while other voices should be magnified – a kind of totalitarianism of ideas. This worldview would destroy the foundation of the First Amendment if the First Amendment is not held firm.

I am shocked by this new predominant view as I was once shocked by the burning of a US flag. The shock stems not from the evils in society this ideological view aims to address, as I find some common ground in those concerns. I am shocked that the proposed remedy involves weakening the most fundamental freedom that protects freedom itself – the freedom of ideas and the right to express them.

The idea of “hate speech”, as well-intentioned as it sounds, is inimical to a framework of freedom that protects the clash of ideas. Nowhere is freedom more necessary to be protected, than at the intersection of ideas and the right to express them. One person’s hate speech is another person’s freedom of expression.

If we allow the idea of hate speech into the fabric of First Amendment jurisprudence, we threaten its very foundation. What we characterize as “hate” today is subject to change with changing societal norms tomorrow. No speech is safe from the label of “hate” if labels are allowed to silence speech.

While such a worldview has some appeal and laudable goals, it cannot be advanced by the abolition of freedom of speech. Yet, I realize at the same time, that freedom, real freedom, protects even those ideas that are antithetical to freedom and demands that they be heard.

As shocked as I was in my naïve youth to watch the US flag burn in the streets of America, I understood the importance of allowing that expression to be heard. That I am no longer shocked by that expression is of no consequence.

In fact, freedom of speech is nowhere more vital than the protection of speech that is offensive. Favored speech doesn’t need protection.  If any speech or expression is deemed unworthy of protection on the basis of its content, no speech or expression is safe.

Societal norms are always changing. They have changed dramatically in my lifetime. What was anathema in the 1960’s is blasé in the 21st Century. Republicans championed abolition of slavery, and now they are labeled racist. The First Amendment that protected “liberal” speech in the ’60’s protects “conservative” speech today.

There are no guaranties that societal norms will remain the same, nor that the ideas people embrace today will be valued in the future. Philosophies, worldviews, ideas, sensibilities and values change. Power centers change.

Expediency in the 1940’s was used to justify interring Japanese Americans in camps. Expediency in 2020 was used to justify emergency orders inhibiting freedom of movement and freedom of assembly. We might recoil, today, at the interment of the Japanese while we might embrace (or tolerate) the emergency orders that inhibit our freedoms today. This is because our perspectives are always changing.

We might look back in 50 years and rue the day we allowed those freedoms to be inhibited. Or maybe not. I don’t know, and that’s the point: on the most fundamental of all freedoms in a free society, the freedom to have ideas and express those ideas, we dare not be so cavalier.

I have listened to many people express themselves with emotions that tottered over into hatred for opposing views. Ideas are powerful things. A person can chant “Love, Not War”, “All Lives Matter”, “Pro Life”, “Pro Choice”, burn a flag or raise a fist with hatred in their hearts for those who disagree, but freedom demands that we allow all of those voices to be heard.

For these reasons, we allow the KKK and Black Lives Matters alike to protest and hold rallies. Only when speech turns to destruction of property, harm to people and violence do we legally allow intervention by government forces. The fiat of government in a free society does not belong in the world of ideas and expression.

If we are to remain a free society, the freedom of assembly and freedom of speech are values that must never be relinquished, as they protect all freedoms. The right to have ideas in the first place and the right to express them, even if they are unpopular, even if they are shocking, is the most fundamental of all rights in a free society – I dare say, even if those ideas are considered hateful.

And therein lies my hope. I watched as flags burned and ideas clashed in the streets of America in my youth in a time as chaotic (or more) than we have experienced today. Presidents and Civil Rights leaders were assassinated. Protesters were shot on a university campus.

Yet, freedom prevailed. As long as we push back the fear and keep conversation going, we have hope.

People today are no more nor less passionate and emotional (nor maybe even more or less polarized) than they were in 1960’s, though we might often be tempted to think so. Walking through the room dedicated to political cartoons from the 1800’s in the Lincoln Library a number of years ago, I realized that political opinions were no less incendiary and shrill almost 150 years ago than they are today. In fact, those 19th Century cartoons make some of the worst political ads today seem mild in comparison.

We had a Civil War in which brother fought brother and hundreds of thousands of Americans died, and President Lincoln was assassinated; yet, the American democracy survived. The freedom of southern confederates to fly their flags and of Black Lives Matters proponents to raise their fists remain protected forms of expression for individuals even today, even as monuments are being removed from prominent public places.

Though we might be tempted not to believe it at times, the clash of ideas is, indeed, the sound of freedom. As long as our system that protects freedom is able to bend with the pressure of competing ideas without breaking, it will survive.

In that vein, we must necessarily even protect the idea that some ideas should not be heard. No ideas can be excluded on the basis of the idea itself. If we break at that point, no ideas are safe. If any ideas are unsafe to hold or to express, freedom, itself, is no longer safe.

So, my concerns remain, but my lived history, and the history of this country before that, suggests that, as long as we continue to protect freedom, freedom will survive, and this country will survive whatever chaos threatens to undo us.

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