Close X

The Death of Free Speech in America

One person's rights do not end where another person's feelings begin: The Death of Free Speech in America.

July 28, 2020

By: Dan Bridges

Those who forget history are doomed to repeat it.  Voices speak against discrimination but they should not forget they do as great of harm, furthering their rights at the expense of the rights of others.

Collectively our society has forgotten the First Amendment protects all speech – even hateful speech and speech deemed “wrong.” Demanding the silence of such speech with the rationale of equity and inclusion, destroys the very foundation equity and inclusion stand on.  Without the full and unfettered right of free speech, there are no other rights.

In 1977 the ACLU defended the right of an organized Nazi group to protest in the largely Jewish suburb of Skokie where Holocaust concentration camp survivors lived. David Goldberger, a self-identifying Jewish attorney for the ACLU, represented the Nazis because he understood the harm caused by limiting speech and beliefs, however vile they may be, was much greater than the speech and beliefs themselves; from his article published by the ACLU:[i]

While any effort to censor by punishing a speaker after the fact is likely to violate the First Amendment, preventing the speech ahead of time is even more likely to violate the Constitution, even where the anticipated speech is profoundly offensive and hateful. …[I]f the government can prevent lawful speech because it is offensive and hateful, then it can prevent any speech that it dislikes. In other words, the power to censor Nazis includes the power to censor protesters of all stripes and to prevent the press from publishing embarrassing facts and criticism that government officials label as “fake news.”

Ironically, the Skokie community's efforts to stop the Nazi demonstration replicated the efforts of Southern segregationist communities to stop civil rights marches led by Martin Luther King during the 1960s. Both tried, through the courts and other means, to stop protest marches.

At board meetings across the country, reasonable people occasionally misspeak. People without a biased or racist bone in their body, but who are unfamiliar with the demands of the left and ignorant of the magic word de jour the left demands be used, cause offense; real or imagined.  In response, cancel culture demands their immediate social execution. They are vilified and held up to ridicule. If the organization to which they belong does not immediately meet the demands of the mob, they are considered complicit.

 It is imperative that all speak their opinions, including identifying speech and conduct that is undesirable. However, the response to offensive speech should never be a demand that someone's else's rights be taken.

It is not that offensive speech is to be encouraged. In a democratic society everyone should interact with a basic level of respect to every other person's human dignity. However, the injury done by denying free speech, even speech that might be offensive, is infinitely greater than the offensive speech itself.

In the seventies people were often heard to say: I disagree with you, but I will fight for your right to say it.  At the time, we were that much less removed from several wars where hundreds of thousands of young Americans gave their lives to protect that right. 

Society at that time understood freedom of speech was the bulwark that our democracy rests upon. Now, what masquerades as society or public thought is more often than not a 30-year-old who has never known real adversity, has never known a true existential crisis that could bring an end to this country as presented by the axis powers in World War II, and who is used to immediate gratification of every desire.

Those who demand a punitive response over mere speech forget that the air of freedom that gives them the right to speak in favor of their own causes, was once denied to them - as Mr. Goldberg said above, the tactic of punishing and silencing speech was the same tactic used against the civil rights movement itself. Yet, that is exactly the tactic used presently by the mob when a person deviates from what is deemed socially acceptable to those on the left.

The reason advances have been made over the last 30 years is exactly because freedom of speech was protected. You may insert whatever social belief you think appropriate; those strides were made only because over time, and through the market place of ideas, society was persuaded. Society was persuaded not by threats of being cancelled, but by an exchange of ideas.

We often hear the left say they want to have a “conversation.” They do not want a conversation. A conversation requires two opposite sides, freely expressing their viewpoint, without fear of punishment or retribution over that exercise of free speech. The left do not want that.  The left wants to yell a list of demands under threat that anything other than an unequivocal agreement will result in your immediate professional and personal execution through cancellation.

Demanding punishment, stripping of rank, position, and “cancelling” someone because of the content of what they said is not exercising speech.  What it is, as Mr. Goldberg said, is “punishing” a speaker for the content of what they said, and “prior restraint” by the chill it creates against other speech, both of which “violate the Constitution,” even when the speech is “profoundly offensive and hateful.”

It is not enough that speech is curtailed.  Often when someone innocently missteps, they are required to undergo “training” in order to rejoin the group.  Demand that such a speaker be “trained” to think in a certain way, in exchange for not being cancelled, is no better than the demand they be canceled.  Some amount of education on discrimination issues is important; everyone in the context of the workplace should understand what the law requires.  However, to the extent that some demand a speaker, a group such as the Board, etc., undergo training to ensure they “think” the “right” way is little different than the re-education communist countries such as China employ.

Forced “training” because its content is deemed by the mob to express the “right” belief, is as perilous as suppressed speech.  Who would the mob have decide what is “right” to be trained on. What would the mob say when the tide shifts, and the training is the exact opposite of what they think today is “right.”  It was not that long ago when people were “trained” through social mores that all manner of activities now accepted, were evil and inappropriate.

Those who forget the past are doomed to repeat it. Using the tactics of the past – punishment over the content of speech and a demand for indoctrination on certain beliefs – is no more correct now in response to what some deem offensive, than it was in the fifties when the beliefs were the opposite.

It was the freedom of speech and of thought that allowed Martin Luther King to march and say on the steps of the Lincoln Memorial: I have a dream.  That was not a popular sentiment at the time. But, he had the right to express it. And but for that, all those who are marching under the Black Lives Matter banner would not be allowed to even step foot on the street much less engage in the protests going on now. 

Showing how far society has lost its way, I provided a draft of this opinion to a colleague I greatly respect. They are, to use the current vernacular, “diverse,” e.g., the code the left use to describe any person not white. We both belong to a volunteer entity made up of lawyers. 

In response to my private, earnest request for input they turned to our leader demanding my draft be published as an example of intolerance and bigotry that others should be trained on as inappropriate.

That was the response of a well-intentioned, diverse, attorney I considered a friend and who over time saw me to be neither intolerant or bigoted.  Yet, my basic statement in defense of free speech and the First Amendment, because it was not the “right” type of speech, needed to be shouted down and vilified.  That others needed to be “trained” to see it as bigoted speech.  That from an attorney who, like me, took an oath on being sworn and admitted to practice law that explicitly pledges: “I will support the constitution of the United States.”

I will end, where I started: Those who forget history are doomed to repeat it.  And as they forget, I respectfully remind them of the words engraved on the National Holocaust Museum, written by German Lutheran pastor Martin Niemoller born in 1892:

 First they came for the socialists, and I did not speak out—

     Because I was not a socialist.

 Then they came for the trade unionists, and I did not speak out—

     Because I was not a trade unionist.

 Then they came for the Jews, and I did not speak out—

     Because I was not a Jew.

 Then they came for me—and there was no one left to speak for me.

Speech is speech. Some is good. Some is bad. Under the Constitution it is all protected equally. Yet, that right – the right upon which all others rests - is being destroyed daily and society is so far down the path most no longer realize it is happening. Or worse, they realize what is happening and facilitate it with the rationalization they are doing good because what they think is “right.”  They believe it is acceptable to deprive others of their rights, because the others are “wrong.”  That is not how rights work.

 Unless reasonable minded people stand up and say no more, soon, there will be “no one left to speak” at all.

[i] 7/28/2020

About Us

Because of our extensive experience trying cases, we understand what makes a compelling presentation. It enables us to work with our clients in every interaction, starting from the first client meeting to the eve of trial, to form a strategy for success in trial. Every member of the firm takes the same practical, cost-conscious approach to handling negligence and other liability disputes. When cases do go to trial, our attorneys are well known for their preparation, tenacity and imagination. MCBD’s attorneys pride themselves on the ability to handle complex matters cost-effectively by appropriately utilizing the firm’s extensive resources, including paralegals, trained support staff, sophisticated computer resources and state-of-the-art communications equipment. While our firm’s attorneys have diverse backgrounds and interests, we share a common strength in our proven litigation capability, comprehensive legal analysis and strong interest in litigation. MCBD attorneys are committed to providing first-rate and efficient legal services to our clients at competitive rates.

Contact Us

McBD Law