In his 2007 book Freedom for the Thought That We Hate, legal scholar Anthony Lewis chronicles the  history of the First Amendment’s protection of free speech.  Though the amendment was ratified in 1791, it wasn’t until the 20th century, that the Supreme Court ever overturned a law as a violation of free speech.  Though the history of America’s broad speech protections is younger than we might think, these protections are products of the Enlightenment spirit— that the elevation of knowledge and rationality are the keys to human flourishing.  (French author Michel Houellebecq disagrees, but that’s another matter.)

Lewis drew the title of his book from Oliver Wendell Holmes’s dissenting opinion in U.S. v. Schwimmer (1929):

[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us, but freedom for the thought that we hate.

Since popular opinions need no protection in a democracy, the First Amendment’s raison d’être must be the protection of unpopular opinions— including the thought that we hate.

In previous times, including the times of Holmes, the hated thoughts included pacifism and communist sympathy.  Congress and states banned various expressions they deemed seditious, usually limiting the political debate that the more philosophical Founders had likely wanted to foster.  In more recent times, contentious speech is typically the opinions and rantings of racists and bigots convinced that society is far too tolerant of this or that group.  (How ironic that the intolerant demand tolerance of their own opinions!)

Though we have lamented speech restrictions before at the University of Maryland, in the supposedly libertine Netherlands and in holier-than-thou Canada, the slow repeal of free expression in western democracies is on the march.

An op-ed in the Washington Post’s Sunday Outlook section chronicles the slow disintegration of speech protections in many western countries as the concern for multicultural tolerance conflicts with the more xenophobic views on the European fringe.  The author lists some troubling cases:

• French actress Brigitte Bardot has been convicted four times in France for demeaning Muslims and gays.
• A 15-year-old Briton was arrested for holding up a sign stating, “Scientology is not a religion, it is a dangerous cult”.
• An Austrian legislator narrowly avoided jail, but was fined, for accusing Mohamed of pedophilia.
• A Dutch cartoonist, as we wrote earlier, was arrested for drawing cartoons denigrating fundamentalist Muslims.
• Italian prosecutors launched an investigation into an Italian comedienne for insulting the pope.
• A British political aide was arrested for anti-Semitic rants directed at a TV in a gym.
• A xenophobic Dutch parliamentarian was denied entry into the U.K. for espousing anti-Muslim opinions deemed too dangerous.

Yes, many of these controversial views are blatantly racist, mean, and (more importantly) specious, but that doesn’t warrant their restriction.

Anthony Lewis, though on the Left, actually thinks America’s First Amendment protections might be too broad.  He believes the state is justified in squelching the incendiary recruitment speech of Islamic radicals, even if these radicals do not call for immediate lawlessness.  Their ability to persuade alienated young men inclined toward eventual violence warrants state intervention, he writes.

We disagree, however, and are curious as to whether Mr. Lewis would extend this interventionism to non-Muslims who speak to alienated groups.  Under Mr. Lewis’s reasoning, one could argue that Martin Luther King, though decidedly non-violent, should have been muzzled (well, more so than he was).  Such a speech restriction could open the door to the prosecution of anyone demanding significant socio-political change, as there are surely unrestrained elements of any otherwise legitimate movement.

Furthermore, determining what is controversial is easy, but it is indeed too easy.  If one could unleash the local prosecutor simply on the grounds that one feels “offended”, we will have to hire more prosecutors, as there are infinite opportunities to take offense, and enough delicate sensibilities to feel offended.  Don’t like that someone called same-sex marriage unnatural?  Call the prosecutor!  Don’t like that gay-right supporters call you a bigot?  Call the prosecutor!

The Left and Right will find ways to litigate and counter-litigate every provocative utterance out of the public realm.

There is plenty of despicable speech, no doubt, but any attempt to regulate it— to determine what is legitimate and what is not— could easily lead to capricious and unfair restrictions, where the well-counseled quash the obscure bloggers, where political parties sue newspapers for their opinion pages, and where courts rule that emotions trump truth.  A speech regime will cause many more problems than it fixes.

The best response to blatant nonsense is an articulate rebuttal exposing lies and reinforcing the truth.  Justice Louis Brandeis, who sat on the court with Holmes, famously wrote that sunlight is the best disinfectant.

During my four years at the University of Maryland, I was satisfied with the academic freedom afforded students.  The university imposed no speech codes or speech zones on students and faculty and I even witnessed faculty publicly contradict and vehemently disagree with administrators.

As a public university, the University of Maryland’s budget is a matter of public record, thus limiting (though not eliminating) the shadowy policy-making that often plagues private universities.

During my four years, the Maryland General Assembly never intervened to impose politicized restrictions on academic freedom or speech.  How times have changed.

Upon hearing that the student-run theater on campus was going to screen a pornographic film Pirates II: Stagnetti’s Revenge, one member of the Maryland Senate, Andy Harris (R-Baltimore County) introduced an amendment to cut all state funding from any state university that showed a hardcore pornographic film on campus.

Shamefully, under threat of the amendment’s passage, the university administration promptly put the kibosh on the screening, striking a blow to free speech on campus.  Students are planning to screen the film elsewhere at an undisclosed lecture hall, but the prudish Senator’s threat still stands.  Sadly, lest they be labeled soft on hardcore porn, a majority of Senators probably would have approved the measure.

Though threatening to withhold funding for the university, likely shutting it down, is a political stunt that we’re sure plays well with Mr. Harris’s constituents, it threatens the beginning of a slippery slope toward speech codes.  What qualifies as pornographic?  And why end there?  Perhaps Mr. Harris would like the library to burn Peyton Place and the Canterbury Tales, and redact the cruder parts of Shakespeare.

Though the General Assembly has the right to review and determine the university’s budget, it is unwise for the General Assembly to politicize the university and it is likely illegal for the state to define content-based restrictions that do no serve any compelling state interest.

We predict that the movie will be shown elsewhere on campus and that the General Assembly will not follow through on its threat.  Even still, this quarrel will have a chilling effect on speech.  It is a sad day for the so-called Free State and its university.

D.C. City Councilman Harry “Tommy” Thomas (Ward 5-much of northeast) is threatening to hold the advertisers of a small Brookland newspaper “accountable for [their] role in underwriting the Brookland Heartbeat.”

The newspaper’s “crime” was to report that Councilman Thomas isn’t that great at securing neighborhood improvements from the city government.  Thomas’s objections do not dispute any of the facts of the news story, which was widely distributed in Ward 5 in July.

Though Thomas’s letter stating his objections is obviously a political stunt, what is most worrying (and possibly illegal) is his threat to hold the paper’s advertisers “accountable,” without specifying what that means.

Does Thomas plan to exert undue pressure to deny these businesses their rightful licenses? Does he intend to send city inspectors on daily fishing expeditions to look for trifling violations?

This veiled threat is inexcusable and should be investigated by the appropriate ethics authorities in the city government. Such ambiguous threats run the risk of chilling political debate among citizens. Who will stick his neck out and rightly criticize those in power if losing his livelihood is a consequence?

Gregorius Nekschot

In left-leaning modern democracies, one wonders what happens when the freedom of expressions is brought to the high altar of multiculturalism?  In Canada, as we have reported, it may be illegal to publish speech “hateful and contemptuous” of any ethnic group.  In the Netherlands, long a safe haven for political and religious dissenters, one particular cartoonist by the pen name Gregorius Nekschot (Gregory Shot in the Neck) has been arrested for drawing offensive cartoons of Muslims and other minority groups.

The Dutch police have released him, but he is to face a trial in the near future.  One can rest assured, however, that Dutch intolerance of undesirable speech is not only reserved for the ethnic majority:

The prosecutor’s office notes that it has also taken action against Muslims suspected of discrimination. A Moroccan-born Dutchman was recently convicted of discrimination for writing in a blog that homosexuals should be tossed from rooftops and thrown down stairs. A court ordered him to do community-service work.

Smoking weed may be legalized, but voicing unpopular opinions is not.  The Dutch parliament is investigating the cartoonists arrest, lest the prosecutor’s office reverse the country’s famous permissive speech policies.