Free speech is not free of consequence. Never has been. Never will be.
Protesters gather outside Capitol Square at the conclusion of their march just before 10:30 p.m. in Richmond, Va., June 2, 2020. (Parker Michels-Boyce/ For the Virginia Mercury)
For all the hand-wringing over the supposed demise of free speech in this most savage season of politics and social upheaval, expression has never been more uninhibited or robust. I just checked the vitals of the First Amendment and, while it’s getting a good workout, it’s just fine.
Turns out, nobody is stopping anybody from saying anything, no matter how brilliant and thought-provoking, or how dirt-stupid and inflammatory. Quite to the contrary, we’re expressing ourselves abundantly, and in most every medium imaginable.
It’s there in the chants and placards and banners of protesters and counter-protesters who have taken to the streets after the police killing of George Floyd. It’s pervasive across the cable-news world. It’s spray-painted onto monuments and buildings and carefully stenciled in bold, bright, yellow-orange paint on prominent streets in major U.S. cities. It dominates Twitter, YouTube, Facebook, Instagram and any other social media platform that may have emerged in the past 72 hours. It’s present in blogs and op-ed pages, virtual and print.
We’re definitely having our say. Flash floods of facts — real and alternative — as well as ideas and opinions wash into the marketplace of public thought every day, inundating gatekeepers and fact-checkers. In an untamed frontier environment for free expression, the only law seems to be the survival of the loudest and angriest.
Also on the rise is a mistaken belief that free speech is somehow speech free of consequence. It’s not: never has been, never will be.
The First Amendment protects us from prior restraint against our right to speak freely. It doesn’t confer immunity against adverse reactions and being challenged over the content of that expression. In 2020, the wrong words can destroy businesses, reputations, jobs, family finances and more with breathtaking speed that was once unimaginable.
In the early generations of the Republic, say or publish something false or defamatory — or even unfriendly — and it might provoke lengthy rebuttals in the form of treatises or pamphlets, lengthy oratorical condemnations, perhaps a fistfight or even a duel with pistols. The 20th century ushered in a more civilized (and litigious) society increasingly inclined to treat hostile speech as torts and resolve them in court.
The speed, breadth, access and portability of today’s instantaneous digital forums has hopelessly outrun those legacy forms of redress. Modern retribution for slights, real or perceived, is increasingly taking the form of going after an offender’s home or livelihood. Businesses or employers are affected. Phone numbers, home addresses, email addresses are published in a punitive new tactic known as “doxing.” Occasionally, protests form outside places where targets live and work.
Each day’s headlines bring fresh examples. Longtime Cincinnati Reds’ play-by-play announcer Thom Brennaman was suspended last week for an anti-gay slur made unwittingly on a hot mic. Stuart Baker, who uses the stage name Unknown Hinson, was fired a week ago as a voice actor on the raunchy cartoon series “Squidbillies” and sponsors dropped him after a racist and misogynistic social media rant against Dolly Parton for supporting Black Lives Matter. Liberty University president Jerry Falwell Jr. is on an indefinite leave as chancellor and president of the Lynchburg-based Christian school at the request of its governing board over his since-deleted social media post of a photo himself arm-in-arm with a young woman during a yacht party, both with midriffs bared and trouser zippers partially lowered.
After Adult Swim, the cable channel that airs “Squidbillies,” terminated Baker, he was anything but contrite, returning to social media to profanely excoriate those who had called him out, concluding with “I’ll remember you bastards.”
Losing a title or livelihood is harsh and increasingly commonplace — the rules of engagement for the zero-sum game that American social interaction has become. Those trapped by their words or images bitterly complain that their free speech rights are being vioalted, knowing full well that speaking freely is what put them in the predicament. Their hurt and anger is really over the fact that those injured or aggrieved are fighting back with free speech, reaching the eyes and ears of decisionmakers with institutional and business reputations to protect and the power to sever anyone who is a threat.
Some argue that such a dog-eat-dog construct is an appropriate application of a self-correcting marketplace, laissez faire taken to its ultimate conclusion. There is sometimes a satisfying sort of instant justice to it. But when done outside a thorough deliberative process, it gives rise to a corrosive vigilantism more suited to a dystopic, neo-noir future world.
The dangers of such an environment are considerable. It overwhelmingly favors the prevailing national mood and punishes those holding dissenting views more harshly with little or no due process. Nor does it apply equally: Donald Trump cruelly mocked a handicapped journalist, exhorted a hostile foreign power to undermine his election opponent and lewdly boasted of his unwanted advances against women. Any of those would have destroyed most careers, yet Trump was elected president.
What has atrophied and teeters at the brink of death isn’t free speech, it’s responsibility and civility. America is well along the path of deteriorating from “one nation under God, indivisible” into a collection of insular tribes which hold rigid, unquestioning ideologies and allegiances; which are sustained by an unceasing, self-selected flow of propaganda, and; which are bereft of empathy, understanding or the benefit of the doubt. They are silos where conformity prevails and conflict supplants conversation with those on the outside.
It is a dangerous and unsustainable direction. Free speech can’t long survive untethered from responsibility and civility.
Without responsibility, a cynicism takes hold that erodes all trust. Institutions with high standards and proven records of veracity in reporting on vital public issues are delegitimized in the public mind as “fake news” until their standing is, to many, comparable to that of the vile conspiracy fictions of QAnon or foreign troll shops.
Without civility, we’ve lost even the motivation to view fellow Americans as allies worthy of partnership in this continuing experiment in informed self-government. When we see opponents as not just holding different ideals but as malevolent, the motivation is to conquer and prevail rather than to listen to one another, to consider fact and evidence, to find consensus on truths we still hold to be self-evident and, from that, prudently chart an agreeable best future for our country.
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