Scholar Nicholas Grossman: What, Exactly is America's Free Speech Problem?

The New York Times threw down a gauntlet with an editorial titled “America Has a Free Speech Problem.” Here, in the first paragraph, is how the Times defines the problem:

Americans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned.

That’s a bad standard. As centuries of philosophy, theology, and law tell us, you have a right not to be jailed for expression, you don’t have a right to not be shamed or shunned. Those are social reactions; choices of speech and association, not punishment by the state. Shaming and shunning can be reasonable — in response to racial slurs, Holocaust denial, and advocacy of pedophilia, for example — or unreasonable, though people disagree on where to draw the lines. Fearing a negative social reaction is an emotion, and might not be rational. A situation in which no one fears being shamed or shunned for public expression is impossible, and trying to achieve it would undermine the value of free speech by requiring a lot more self-censorship.

Later in the editorial, the Times states the problem more reasonably, like this:

The old lesson of “think before you speak” has given way to the new lesson of “speak at your peril.” You can’t consider yourself a supporter of free speech and be policing and punishing speech more than protecting it. Free speech demands a greater willingness to engage with ideas we dislike and greater self-restraint in the face of words that challenge and even unsettle us.

That’s a better standard, but too vague. I agree that, in general, people should engage with ideas that challenge them and shouldn’t seek to punish speech. That sounds like a good rule of thumb for college campuses and the voluntarily political parts of social media. But I’m not convinced “speak at your peril” is a new lesson — ask a Muslim American, or various LGBT people— nor that calling for people to self-censor expressions like “that’s homophobic, you should be ashamed” (or harsher versions) is the way to support free speech.

This vaguery is a problem for only part of the Times’ argument, on left-wing cancel culture. The editors define the right-wing threat to speech concretely — “censoriousness as a bulwark against a rapidly changing society, with laws that would ban books, stifle teachers and discourage open discussion in classrooms” — and back it up with evidence. They identify 13 bills passed in 11 states, and another 106 under consideration, in “a vast effort to restrict discussions of race, sex, American history and other topics that conservatives say are divisive.”