I am happy to report that my law review article in the Harvard Journal of Law and Public Policy is now out in print. The article entitled “Harm and Hegemony: The Decline of Free Speech in the United States,” explores the anti-free speech movement in the United States and the increasingly common claim that free speech itself is harmful. I wanted to thank the journal editors and staff for their tireless efforts to bring this rather lengthy work to print. It was a great pleasure to work with each and every one of the law students who contributed to the editing and sourcing of this law review.
Here is an excerpt:
Throughout its history, the United States has struggled with movements that aim to silence others through state or private action. These periods have been pendulous, with acute suppression followed by relative tolerance for free speech. This boom–or-bust pattern for free speech may well continue. However, the United States is arguably living through one of its most serious anti-free speech periods, and there are signs that the current period could result in lasting damage for free speech due to a rising orthodoxy and intolerance on our campuses and in our public debate.
Where fighting for freedom of speech was once a near-universal rallying cry, opposing free speech has now become an article of faith for some in our society. This has led to a rising movement that justifies silencing opposing views, often on the grounds that stopping others from speaking is, in fact, an exercise in free speech. This movement has both public and private components, but it is different from any prior period due to new technological, political, and economic pressures on the exercise of free speech.
The struggle for free speech in the United States is interwoven with our history, from the colonial period to the present day. From the outset, there was a clear concept of free speech, but not a clear commitment to protecting it. Indeed, figures like Thomas Paine and John Peter Zenger raised many issues against the English Crown that are still debated today in conflicts over free speech and the free press. Anti-free speech movements tend to rise from deep fractures in our society in periods of unrest. The sense of great injury felt by many can be translated into a license to silence those who are seen as causing or exacerbating that injury. These periods provide an opportunity not only for government abuses but also for extremist groups to feed on social unrest. In recent years, various extremist groups have emerged on both ends of the ideological spectrum, from the Boogaloo movement on the far right to the Antifa movement on the far left. However, the greatest threat to free speech today is the growing support for censorship and speech codes in the mainstream of political and academic thought.
The rise in speech regulation is often defended on the basis that free speech itself is a danger. This article explores the rationalization that speech controls are justified as a defense or response to the harm posed by opposing views. It is a framing that explicitly or implicitly raises the “harm principle” of John Stuart Mill—with a lethal twist. Many have long relied upon the harm principle in a myriad of areas to define the limits on government controls and action, particularly in defense of free speech. A type of Millian harm principle is now being used to justify both government controls and private action to silence those with opposing views. Indeed, the antifree speech movement on our campuses is often defended as a type of militant Millian movement, a construct that is neither faithful to Mill’s writing nor logical in its application. Yet that same rationale has been used by social media companies as the foundation for the robust censorship programs now enforced across the media in what is often called the “post-truth” environment.
This article looks at the anti-free speech movement and its reliance on the harm rationale. However, it is important to note that arguments for greater speech regulation often reject another aspect of Mill’s writings on free speech: the self-corrective or protective capacity of free speech systems. That view is treated as hopelessly and even dangerously outdated. One commentator wrote, “Many more of the most noble old ideas about free speech simply don’t compute in the age of social media. John Stuart Mill’s notion that a ‘marketplace of ideas’ will elevate the truth is flatly belied by the virality of fake news.”
Such claims are often presented as manifestly true. The fact that “disinformation” or hateful speech exists on social media is treated as evidence that traditional Millian notions of free speech are proven failures. Such a view ignores that neither Mill nor his adherents ever claimed that free speech would chase bad speech from the media platforms or our lives. Disinformation and hateful speech existed in Mill’s life and have always existed as part of human interactions. Free speech does not cure stupidity; it merely exposes it.