“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 repulsed by the flag burning and impressed of 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 repulsed 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The angst of the 1960’s of my youth has been replaced by the angst of the 21st Century of my middle age.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 may 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 predominate promotes the silencing of dissident voices. Speaker engagements are canceled as the loudest voices want not even a whisper to be heard in opposition. Dissident speakers that are allowed on campus are shouted down.
These social, philosophical and political theories are built on the foundation of the idea that certain voices should be silenced, while other voices should be magnified – a kind of totalitarianism of ideas. This worldview would destroy the marketplace of ideas along with the idea of capitalism from which the idea of a marketplace of ideas is derived.
I am repulsed by this worldview as I was once repulsed by the burning of a US flag. The repulsion stems not from the evils in society this worldview aims to address, as I find some common ground in those concerns. I am concerned 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 wholesome and reasonable 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 ideas.
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”.
While such a worldview has some appeal, seeking to right real wrongs and has laudable goals, it does so with the threat of abolition of freedom of speech. Yet, freedom, real freedom, protects these even those ideas that are antithetical to freedom and demands that they be heard.
As repulsed as I was in my naive 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 repulsed 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.