Words Matter

My father was a Holocaust survivor who barely survived slave labor in the Buchenwald concentration camp. My maternal grandfather was an immigrant to the United States who was subjected to degrading punishment because he was a conscientious objector during World War I. And so I’ve always possessed a strong sense of injustice, and I’ve welcomed every opportunity to speak out against it.

As a teen I traveled to different high schools in my area, debating against the Vietnam war before school-wide assemblies. Those experiences played a crucial formative role by introducing me to the law. I realized that legal tools could reduce the discriminatory human rights violations that had always upset me. It sounds corny to say that many of us went to law school at that time to change the world, but it’s true—and despite the ongoing challenges, the overall human rights situation in the U.S. and worldwide is vastly better now than it was when I graduated from law school. I say this not so we crusaders can rest on our laurels but for the opposite reason: to remind us that we can confidently look forward to further human rights gains if we persist in our efforts. But those gains will not be possible if our First Amendment rights are violated.

Freedom of speech means we should be free to choose what to say and listen to—as well as what we’re not going to say or listen to. I should be free from constraints at the hands of any individual or entity powerful enough to exert those constraints, whether it’s the government, a social media behemoth, a university official or a mob.

The American Civil Liberties Union continues to defend freedom of speech even for those who use that freedom to challenge our deeply held values with regard to civil liberties. Probably our most infamous case was defending the right of neo-Nazis to demonstrate in Skokie, Illinois—which had a large Jewish population, including many Holocaust survivors—in 1977. We did the same thing in Charlottesville, Virginia four decades later, defending free speech for white supremacist demonstrators. These positions have been strongly criticized, even by many ACLU members. But we’re also continually attacked from other quarters for our defense of the free speech rights of crusaders for racial justice. For example, we’re currently defending Black Lives Matter activist DeRay Mckesson against allegations that his speech instigated anti-police violence. I take these diverse criticisms as a rough indicator that we’re getting it right.

Many people are understandably concerned about disinformation, which of course can undermine the integrity of elections and jeopardize our form of government. But before turning to censorship in the hope of reducing these threats, we must consider the countervailing harm that such censorship would cause. Empowering the government or social media giants to decide what’s true and what’s false is far more dangerous: It’s easy to see the potential damage to speech, but censorship inevitably vests enforcers with discretion to choose which words and speakers to punish. This power is always wielded disproportionately against government critics, dissidents and advocates of reform.

Donald Trump certainly didn’t forfeit his free speech rights when he became president. He can voice his opinions no matter how hateful or hated many of us may find them, but he shouldn’t cross the line between conveying his personal opinion and threatening to exercise his official power to punish certain ideas or speakers. I believe he has crossed that line in some situations, such as withdrawing White House press passes from reporters and threatening to withdraw broadcast licenses from a TV network for what he viewed as unfair coverage. When he attacks the media as “the enemy of the people,” that has a chilling effect on freedom of the press. (I don’t mean to compare Trump to Hitler in any other sense, but it is noteworthy that Hitler sowed distrust among the German populace by using the term Lügenpresse— or “lying press.”) It’s no coincidence that the press is often called the fourth branch of government: It’s meant to provide a check and balance against overreaching government officials. Trump should not be punished for this rhetoric, but the rest of us have to push back hard and point out its insidious, anti-democratic dangers.

Every administration in my adult lifetime has taken some actions that have violated free speech and the press. The Obama administration, for example, pursued a record number of prosecutions against whistle-blowers under the Espionage Act, which goes back to the red scare of the World War I era. What’s different about Trump is that he openly brags about his attacks on the press. Richard Nixon pulled many of the same levers, but he did it on the sly. We found out about it only afterward, right? Trump seems proud of his attacks on critics.

Regardless of who is in the White House, every one of us has an opportunity and a responsibility to understand the essential nature of freedom of speech—to appreciate the distinction between supporting what somebody says and supporting their right to say it. You have to train yourself to look beyond the particular message to the underlying principle, and to be alert to the slippery slope of censorship.

Speech is not an unalloyed good. We don’t defend it because it can’t do harm; we defend it because the harm of censorship is greater than the harm of speech—and because the harm of speech can be prevented, or at least reduced, through more speech in the form of education and discussion, both of which are more effective than censorship.

Freedom of speech is also a means of exploration, of engagement with other individuals and the world at large. If we can’t express ourselves, that stunts our ability to realize our highest individual potential. The Constitution starts with the words We the People. We the people hold the sovereign power in this country. As the Supreme Court declared back in 1964, “speech concerning public affairs is more than self-expression; it is the essence of self-government.”

Without this freedom, no other rights can be pursued.