Despite the downfall of the alt-right’s favorite bigot, Milo Yiannapolous, the free speech question is far from settled.  Campus protests against speakers deemed hateful continue, and some institutions have become wary of inviting high-profile conservatives.  Protestors allege that university campuses should not be a haven for hate speech.  Some university officials reply that to disqualify any speech, no matter how repugnant, is an attack on democracy itself. 

Here, CPUSA members Michelle Kern and Scott Hiley give their perspectives on the question.  This is collective work, though—so please share your ideas and responses in the comments section.

Michelle P. Kern: Free speech or for-profit speech?

The issue of whether Milo Yiannopolous had his rights to free speech infringed upon, when his commissioned speech was canceled recently at U.C. Berkeley, has been back-burnered in light of his recent public disgrace and downfall—however, this issue will keep coming up as more figures with odious views will obviously try to use this seeming crack in the armor of American freedoms to gain a toehold in mainstream public discourse.

The question of whether someone has had their rights to free speech curtailed if they are no-platformed is not controversial—IF that person has been denied a chance to express their views, by the government, in a public venue.  That is the definition of free speech.  Any attempt to move the definition of free speech to cover speech that is commissioned and paid for is moving the goalposts.

Our first amendment right to free speech specifically carves away protections for provocation—the example of yelling “fire” in a crowded theater, is not protected speech.  Speech that is crafted to damage and provoke its audience, and then subsidized by private funding to reach as wide of a blast radius as possible shouldn’t be treated the same as a preacher in front of Sproul Hall.

Even if we were to accept the precept, popular with some, that these paid forms of speech should be allowed under the rubric of “free speech,” to be countered with more “free speech” with opposite views in some ideal of debate, this still does not hold up as a rational approach to the question.  If society were a stage where all speech got an equal airing before a neutral audience that rationally assesses all points of view, and everyone with a point of view was likewise given equal resources to advance that view publically, this argument might hold some virtue.   However, this isn’t the case—we live in a profit-driven culture, where the views that have typically been formed to encourage oppression of others have been bankrolled, and continue to be funded and endorsed by wealthy sponsors.  Steven Bannon, the former owner of Breitbart, and Milo’s old boss, can (and has) well-afford to hire and give a platform to all of the speech he cares to propagate—he made a fortune with Goldman Sachs and in Hollywood.

Meanwhile, any public resources that the forces for progressive speech, which we cherish, are at immediate risk—Trump has threatened to yank the funding for nearly all of the venues that we built collectively with public capital: PBS, the NEA, governmental science organizations, and public education are just a few on the list hanging by a thread that is about to snap.  Our right to any speech at all is under fire—it is a misplaced priority to worry about whether millionaires, or Young Republican Clubs, are getting their right to pay for speakers to voice their preferred point of view curtailed, let alone whether would-be professional speakers have the right to get work.

Scott Hiley: Free speech is a concrete question, not an abstract one

“Free speech” does not exist as an abstraction.  Like any political or legal concept, it takes form in concrete conditions; antagonistic class and social forces hold competing concepts of what speech and whose speech should be protected.

Recent First Amendment jurisprudence of the Supreme Court has shown a strong bias to protecting the speech and religious beliefs of the wealthy and corporations (Citizens United, Hobby Lobby, McCutcheon v. FEC) while limiting that of labor (Knox v. SEIU and a near miss in Friedrichs v. California).  Surveying these interpretations of the First Amendment, we see that the right wing has weaponized the First Amendment to hinder working class and progressive movements.  We see this in society more broadly, too, when conservative forces use the First Amendment to justify attacking religious minorities, LGBTQ people, and the racially and nationally oppressed.

One response to this has been a trust—a naïve and misplaced trust, in my opinion—in “the marketplace of ideas” as a force for social progress.  The idea here is that if we give everyone a platform to advance their ideas, however reactionary or repulsive those ideas are, the best ideas will emerge and gather strength.    This is really just another version of free-market ideology, which sees free trade and unregulated capitalism as a source of shared prosperity.  Just as the free market is only free for those who control capital, the marketplace of ideas privileges the speech of those who control think tanks, universities, media outlets, funding sources…  As Michelle suggests above, there is no fair competition on a tilted playing field.

Moreover, First Amendment protections are not static, but changing. We have recognized limits to free speech, such as false advertising, obscenity, and provocation.  We have also expanded free speech protections: Tucker v. Des Moines recognized the non-disruptive wearing of political symbols in a public school as a form of protected speech, and Texas v. Johnson protected the right to desecrate political symbols (flag-burning). More recently, spending money has been recognized as protected speech. The boundaries of First Amendment protections are constantly renegotiated.

In my opinion, we should see non-violent protest against hateful speech as a democratic mechanism for negotiating the limits of political speech in a society marked by deep inequalities.  The free speech clause of the First Amendment prevents the government, in most cases, from intervening to limit speech.  It does not curtail the assembly clause, which protects peaceable demonstrations, nor does it insulate any speech from organized, vocal, public criticism.

Photo: Creative Commons 3.0

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