Saving Free Speech...from Itself - Hardcover

Über die Autorinnen und Autoren

Thane Rosenbaum is an essayist, novelist, and law professor. His articles, reviews and essays appear frequently in The New York Times, Wall Street Journal, Washington Post, Los Angeles Times, CNN, the Daily Beast, and other national publications. He serves as the Legal Analyst for CBS News Radio and can be seen regularly on several able news shows. He moderates The Talk Show at the 92nd Street Y, an annual series on culture, world events, and politics. He has given public lectures around the world. He is a Distinguished University Professor at Touro College, where he directs the Forum on Life, Culture & Society. Rosenbaum is the author of Payback: The Case for Revenge, and The Myth of Moral Justice: Why Our Legal System Fails to Do What's Right, and is the editor of the anthology Law Lit, from Atticus Finch to "The Practice" A Collection of Great Writing about the Law. He has also published five novels including The Golems of Gotham, Second Hand Smoke and Elijah Visible.

Bret Stephens is an op-ed columnist for The New York Times and a political analyst for NBC. He won the Pulitzer Prize for commentary in 2013.

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In an era of political correctness, race-baiting, terrorist incitement, the ‘Danish’ cartoons, the shouting down of speakers, and, of course, ‘fake news,’ liberals and conservatives are up in arms both about speech and its excesses, and what the First Amendment means. Speech has been weaponized. Everyone knows it, but no one seems to know how to make sense of the current confusion, and what to do about it. Thane Rosenbaum’s provocative and compelling book is what is needed to understand this important issue at the heart of our society and politics.

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Americans have never wavered from their love affair with free speech, the people’s choice for the best-known and most revered amendment to its Constitution. It is an entitlement that receives unfailing popular support. And its most favored nations status crosses party lines. Liberals and conservatives, Democrats and Republicans, find very little common ground in today’s political culture. Yet, in the curious alchemy of the First Amendment, they are all unwaveringly united in the principle that Americans possess an absolute right to speak freely without government interference. So profoundly has this right been internalized in the nation’s psyche that waving the American flag is tantamount to celebrating the right to free speech.

And, yet, doubt and confusion abound.

This book hopes to begin an honest conversation about what we really mean by free speech—when we invoke the right and trumpet the liberty, when we demand freedom of speech only for the issues personal to us, and seek to deny it for others. Do we really want free speech to be limitless? Why does the United States stand out among other western nations in defending the rights of bullies and bigots to prey upon marginalized groups with weaponized words? Why do we abhor governmental regulation of speech and yet think nothing of speech that is restricted by society at large? How do we account for so much intellectual hypocrisy when it comes to free speech? 

This book seeks to answer these important, albeit controversial, questions.

The right to free speech is so often reflexively stated, but not so well understood. Despite all the liberating comfort it evokes, speech is not without cost. Sometimes, the cost is prohibitively high, and when this occurs, society as a whole suffers the consequences. Sometimes, gravely. The truth is, speech should not be entirely free. 

I can imagine the horrified reaction to this last statement. How can he say this? Does he not understand what the First Amendment says and what it protects? I do. But freedom doesn’t only have one meaning?that of speakers, but also the targets of speech who have their own rights—and this book seeks to call attention to this issue. 

I am proposing a new level of moral clarity around the principle of free speech. 

It is not an easy undertaking, mostly because it requires that we modify our expectations of what the First Amendment actually guarantees. Doing so will lower the societal costs and improve the climate in which speech is freely offered and received. 

I believe it to be a valuable and urgent national project.

We have always been heavily invested, patriotically and emotionally, in the right to free expression. But at this moment in our history, we are actually experiencing a crisis of faith in the First Amendment that is just beginning to emerge in some conversations, and there is confusion over the once-thought absolutism of its meaning. 

Addressing this crisis of the inconsistent adherence to the First Amendment is long overdue. And the consequences are great, even if largely unacknowledged. The privileging of free speech has come with much pain, the kind we are expected to endure without complaint. It is a mindset that begins young, embodied in a nursery rhyme that serves as propaganda for the First Amendment: 

“Sticks and stones can break my bones, but words will never hurt me.” 

It’s a lovely rhyme and a wonderful thought, but everyone knows that this homespun wisdom is patently false. Words hurt, they can wound, they can be every bit as lethal as a physical blow. Threats are made through words, fights are instigated, riots incited—words manipulated in the service of violence. The special harm that words cause can linger and are often much more long-lasting than the effects of physical damage.

We have repeatedly confused and conflated hostile acts with free speech. We have allowed the First Amendment to provide cover for those who do violence and disguise it as political expression. The moral legitimacy of free speech no longer makes sense to many people. Its virtues have been thoroughly abused by one set of citizens who have trampled upon the rights of others—fellow citizens who retain rights of their own, rights that should not be subordinated to the First Amendment.

Freedom of expression should not apply to speech that is intended to cause harm—either by threatening and intimidating certain targeted audiences, or by inciting imminent violence against them, or by provoking them into a fight, or when speech is being deployed in order to deprive vulnerable groups of their dignity, self-respect and social status. Perpetrators of such uncivil and anti-democratic acts against other citizens may feel that laws preventing them from doing so violate their freedom of speech. But what they understand to be free speech would be wholly foreign to the Founding Fathers of this nation who had something entirely else in mind when they enshrined this new freedom in our consciousness and laws. The free speech that they sanctified had to do with the rights of citizens to criticize their government, without punishment or recourse. Since that time, however, we have expanded the universe of what constitutes speech to the point where almost anything qualifies for First Amendment protection—whether it be a sincere oration or an accidental burp. Courts should reject allowing the First Amendment to be used not as a defender of liberty but as a weapon against vulnerable groups. The latest studies in neuroscience demonstrate the lasting effect that harmful speech is having on all segments of the population—some more than others. And it’s time to give the constitutionality of hate speech codes another look.

But let me make perfectly clear what this book is not about, what I am not proposing, because when it comes to free speech, words can be deceiving.

This book is not about speech one doesn’t like, or disagrees with, or finds offensive, or feels insulted by. This book is not in favor of restricting the free speech of those who wish to openly criticize the policies of the federal government. This book is not meant to serve as marching orders or an operating manual for any political group on any side of the liberal-conservative-libertarian spectrum.

This is a book about the social costs of speech, freely spoken that causes actual harm—emotional and physical. Speech should not be regulated merely because it insults or offends. As legal scholar Erwin Chemerinsky has stated, “Speech can’t be prevented simply because it’s offensive, even if it’s deeply offensive.” But there is a great deal of difference between offense and harm. As long as speech is being offered in a respectful, thoughtful, civilized manner, and its intention is to introduce new ideas or...