Freedom of speech is in peril in America

By Matthew Gagnon

“If there be time to expose through discussion, the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

These were the words of Justice Louis Brandeis, penned in a concurring opinion in the 1927 Supreme Court Case Whitney v. California. In his opinion, Brandeis argued that free speech was absolutely essential in a democratic society because citizen participation in the republic is only possible if people feel able to criticize their government without fear of recrimination. 

Brandeis clearly identified the origin of the concept of free expression as belonging to the framers of our Constitution. “They believed,” he said, “that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of American government.”

Of course, Brandeis was talking primarily about the importance of guaranteeing this free expression against government — not private — attempts to silence and censor. This is the oft-repeated point made by the anti-speech hardliners in today’s society who seek to enforce their personal version of “acceptable opinion” by fostering fear and intimidation among those who think differently. 

They say that the First Amendment is about government censorship of speech, and does not protect you from suffering personal consequences from your fellow citizens due to your unpopular opinions. 

And to be fair, they are right about that. But while that is the legal scope of the First Amendment, is not there something more to the idea? Has not the notion of free speech become a core philosophical principle of American culture?

I think it has. I think the very same argument that Brandeis was making nearly a hundred years ago in relation to government censorship — that “without free speech and assembly discussion would be futile” — is applicable today to our tolerance (or lack thereof) of disagreement among each other. 

In other words, without a basic level of respect for dissent and disagreement, we can’t have honest and productive conversations with each other. If I can’t tell you what I really think because I’m afraid I’ll be attacked for my opinion, then a full examination and search for truth is impossible. 

Unfortunately, that is exactly the type of society we are turning into. Recently, the New York Times published an editorial entitled “America Has a Free Speech Problem,” where it highlighted exactly how bad this problem has gotten. 

According to the Times editorial, a recent survey conducted by the paper showed that more than half of Americans, 55 percent, have “held [their] tongue because you were concerned about retaliation or harsh criticism” in the last year. Concerningly, of that group women — 61 percent, compared with 49 percent of men — were more likely to say they had silenced themselves. The poll also found that 46 percent of respondents said that they felt less free to talk about politics than they were 10 years ago. 

Sure, it is likely a good thing that some people are censoring themselves when they have particularly toxic or evil opinions, but increasingly in this country, the threshold of self-censorship has been getting narrower and narrower. The “no go” zone is now well into the realm of what should be considered “reasonable disagreement.”

This is a problem. Social progress and the development of culture rely on our full consideration of thoughtful and reasonable arguments from multiple perspectives. That allows us to develop ideas and come to reasonable, honest conclusions. 

Militantly trying to enforce uniformity of opinion through intimidation does not result in progress. In fact it likely inspires a massive backlash and is counterproductive.

Fortunately, America seems to understand that this is not good for society. In the Times poll, a full 84 percent of Americans said that it was a “somewhat serious” or “very serious” problem that some Americans do not exercise their freedom of speech in everyday situations out of fear of retaliation or harsh criticism.

But in that result is an expression of one of the most curious aspects about modern society: the overwhelming majority, despite their numbers, have been cowed into silence by an oppressive, suffocating group of anti-speech activists who hate free expression and thrive on silencing those who disagree with them. 

If this is a problem, and it is, then it is long past time we stopped complying.

Gagnon of Yarmouth is the chief executive officer of the Maine Policy Institute, a free market policy think tank based in Portland. A Hampden native, he previously served as a senior strategist for the Republican Governors Association in Washington, D.C.