Nadine Strossen is a distinguished author and prominent legal scholar renowned for her contributions to the fields of civil liberties, human rights, and free speech. As the author of several influential books and articles, including “Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights,” Strossen has provided invaluable insights into the complex intersections of law, liberty, and social justice. Her thought-provoking writings challenge conventional wisdom and offer a profound exploration of the fundamental principles that underpin democratic societies, making her a respected and influential voice in contemporary discourse on civil rights and freedoms.
Can you discuss the historical evolution of free speech rights in the United States and around the world?
The trajectory, both in the US and around the world, has been toward increasing protection of free speech starting in the second half of the 20th century. Before that, even when free speech was theoretically protected as a matter of law, as a practical matter, the speech-protective law was either under-enforced or completely unenforced. This global pattern is well-illustrated by the situation in the US, which has one of the longest continual legal protections for free speech under the First Amendment, which was ratified in 1791. Nonetheless, as a practical matter, meaningful freedom of speech did not really exist until much later, when the Supreme Court started to broadly construe and strongly enforce the First Amendment, from the 1960s onward.
For one thing, the First Amendment did not even apply to state and local officials until 1927, when the Supreme Court held that the Fourteenth Amendment “incorporated” the First Amendment – which directly applies only to federal officials – making it binding upon state and local officials. Even though state constitutions also contained free speech guarantees that did always bind state and local officials as a legal matter, nonetheless, as a practical matter, those provisions were “honored in the breach,” not actually protecting controversial, unpopular speakers from government punishment, until much later in history. For example, prior to the Civil War, many southern states criminalized teaching enslaved individuals to read, thus blatantly violating fundamental free speech tenets.
For the preceding reasons, throughout most of US history, government regularly suppressed or punished speech/speakers on behalf of causes that sought to expand human rights and challenge various government policies, including speech advocating the following: abolition of slavery, women’s suffrage, workers’ rights to form and join unions, opposition to various wars, reproductive freedom, socialism, civil rights, women’s rights, and LGBTQ+ rights. The major reason that most of these causes ultimately gained some traction was increased protection of free speech. Not coincidentally, the Supreme Court’s landmark cases that began to robustly protect free speech did so in the context of the mid-twentieth-century Civil Rights movement; these decisions overturned speech-suppressive decisions, which had suppressed peaceful civil rights advocacy.
Worldwide, a major development that enhanced freedom of speech was the Universal Declaration of Human Rights, which the United Nations adopted by acclamation in 1948. Its Article 19 contains a broad free speech guarantee. That guarantee was expanded upon in Article 19 of the International Covenant on Civil and Political Rights, which has been ratified by almost every country in the world, and which incorporates the key “emergency principle” that is also a key feature of US First Amendment law: that government may only restrict speech when the restriction is necessary to prevent a serious, specific harm that the speech would directly, imminently cause, and the restriction is “narrowly tailored” – i.e., written with sufficient narrowness and specificity, so that it doesn’t vest government with undue discretionary power to choose which speech/speakers to target for arbitrary or discriminatory reasons.
Your book delves into the legal aspects of free speech. What are some landmark court cases that have shaped the interpretation of free speech rights?
Probably the single most important landmark free speech decision is the Court’s unanimous 1969 ruling in Brandenburg v. Ohio, which generally endorsed what has often been called “the emergency principle”: that government may only restrict speech when the speech directly and imminently causes or threatens certain specific, serious harm, such that restricting it is necessary to avert the harm. Brandenburg struck down a state law that was typical of such laws around the country, outlawing speech that advocated violent or lawless conduct even if it didn’t pose an emergency. Until the Supreme Court’s Brandenburg ruling, it had permitted the government to restrict speech under the much looser, broader “bad tendency” test: when speech had a tendency to possibly, indirectly lead to violent or lawless conduct at some indefinite future time. In Brandenburg, the Court ruled that government may not restrict mere advocacy of violence or lawlessness; rather, government may restrict only intentional incitement of imminent violent or lawless conduct that is likely to happen imminently. The Brandenburg test has protected vigorous, controversial expression of all ideological stripes, including both pro-racist and anti-racist speech.
Another landmark Supreme Court decision is Texas v. Johnson (1989), which enforced another key speech-protective principle: the viewpoint- or content-neutrality principle. According to this principle, which complements the emergency principle, the government may not punish speech solely because of disagreement with or disapproval of its “content” – i.e., its message, viewpoint, or idea. Rather than government suppression, the appropriate response is “more speech” or “counterspeech”: all of us exercising our speech rights to counter or refute the objectionable speech. Texas v. Johnson enforced this “bedrock” free speech principle in an especially important factual situation, since it involved expression that, according to public opinion polls, is deeply loathed among broad segments of the US public: burning the American flag to protest government policies.
Other key First Amendment rulings include: Tinker v. Des Moines School District (1969) and New York Times v. Sullivan (1964). Tinker held that free speech rights “do not stop at the schoolhouse gate.” Therefore, students (and teachers) may convey controversial ideas so long as they do not cause a “material or substantial disruption” of the educational process or violate the rights of others. Sullivan held that public officials may not prevail in defamation cases unless they can demonstrate, by “clear and convincing evidence” (which is a more demanding standard than the usual “preponderance” of the evidence standard in civil litigation) that the defamatory statement was made with knowledge of its falsity, or reckless indifference to its truth or falsity. Sullivan adopted a “prophylactic” free speech approach, in order to avoid the chilling effect of stricter defamation laws, which would deter even truthful speech, for fear that the expression might contain an inadvertent error, or that judges or juries might wrongly conclude that the speech was false. Given the centrality of robust, vigorous speech about public officials in our democratic political system, the Court reasoned, we should over-protect speech that criticizes public officials rather than risking excessive self-censorship among “We the People.”
How do you see the intersection of free speech and other civil liberties, such as privacy and freedom of the press?
All rights can be either mutually reinforcing of each other or in tension with each other, depending on the circumstances. This generalization applies to free speech in particular. For example, many human rights advocates, throughout history, in the US and beyond, have maintained that freedom of speech has been an essential prerequisite for promoting and securing full and equal human rights, especially for minority groups. On the other hand, in particular factual situations, free speech rights might well undermine equal human rights – for example, when a white supremacist espouses racist ideologies that persuade some people to adopt discriminatory views and to engage in discriminatory conduct.
Likewise, free speech and privacy rights are often mutually reinforcing, but in particular situations they are in tension with each other. On the one hand, privacy is often a precondition for meaningful exercise of free speech. Most famously, for example, George Orwell’s dystopian novel 1984 powerfully conveyed how surveillance has a chilling effect on free speech. The awareness that “Big Brother is Watching” was enough to stop people from voicing their views even in their own homes, because there was no privacy even there. On the other hand, privacy concerns are in tension with free speech in the sense of freedom of access to information. The Supreme Court has ruled on a series of cases in which the media have sought to publicize information about people, including communications of theirs that had been electronically recorded and intercepted, and the people in question maintained that the publication violated their privacy rights. The Supreme Court has ruled on these cases in a fact-specific manner, determining whether under all the facts and circumstances the privacy concerns should or should not outweigh the free speech concerns. A key factor is whether the speech addresses a matter of public concern; that factor weighs in favor of mandating public disclosure, given the special importance of such speech in our democracy.
Underscoring the complexity of the interrelationships between these two sets of rights – privacy and free speech in the sense of access to information – Supreme Court Justices have observed that cases involving disclosure of intercepted communications involve a conflict not only between free speech and privacy, but also between free speech and free speech. After all, if people fear that their communications may be intercepted and disclosed, they will engage in self-censorship, with an adverse impact on free speech. So in these cases, we must weigh the countervailing free speech concerns in each specific situation: the concern that people will self-censor if they reasonably fear that their communications might be publicly disclosed, and the concern that the public will be deprived of important information conveyed by the communications.
The relationship between freedom of speech and freedom of the press is more straightforward, since these rights are largely overlapping. The Supreme Court consistently has refused to hold that members of “the press” – however that concept might be defined – have no additional or different free speech rights, above and beyond those that are enjoyed by members of the public generally. Accordingly, there is no need to make the difficult determination of who constitutes a member of “the press,” which has become even more difficult in the Internet age, when just about all people can communicate to and with just about all other people, regardless of whether they are professional journalists or work for some media outlet.
Can you highlight any global challenges or trends related to free speech that readers should be aware of?
From a worldwide perspective, the threats to free speech include the most direct and total suppression: the execution and assassination of journalists and others who dare to question prevailing political and religious orthodoxies in authoritarian and theocratic regimes. The Committee to Protect Journalists reported that in 2021, 28 journalists worldwide were killed in retaliation for their work, while an additional 294 journalists were imprisoned for their work.
While these blatant, brutal measures might seem remote from the United States, a recent tragedy reveals that, to the contrary, they reach directly into the heart of our country. Last year (2022), author Salman Rushdie was repeatedly stabbed and severely injured as he was preparing to speak at the Chautauqua Institution in western New York state – a bucolic rural community that epitomizes the American “heartland,” and one that is specifically dedicated to open inquiry and discourse. This assault, which has had have profound life-impairing consequences, including the loss of one eye and the use of one hand, was apparently in retribution for Rushdie’s staunch defense of the freedom to write on behalf of dissident writers in many countries, as well as his own writings that some Islamic leaders have condemned. Ironically, Rushdie was attacked just as he was about to give a speech extolling the U.S.’ special role in affording a refuge to writers who have been persecuted elsewhere. Yes, Rushdie and other writers have fortunately enjoyed more freedom and safety in the U.S. than in other parts of the world, but alas far from enough.
The long hands of the world’s most repressive, censorial regimes have had additional stifling impacts on free speech right here in the U.S. One horrific example is the 2018 assassination and dismemberment of the dissident Saudi journalist Jamal Khashoggi, who was a columnist for The Washington Post, by Saudi government agents, allegedly at the behest of Crown Prince Mohammed bin Salman.
Moreover, in response to threatened and actual violence in many countries, by certain Muslims who objected to works including Rushdie’s The Satanic Verses, the Danish newspaper Jyllen-Posten’s “Danish cartoons,” and the French satirical magazine Charlie Hebdo’s cartoons, U.S. publishers and booksellers have declined to distribute these works for fear of violent reprisals here at home, as well as in other countries. I will cite just some examples of this widespread self-censorship, which has deprived U.S. residents of vital art, information, and ideas. U.S. publishers declined to publish the paperback edition of The Satanic Verses. Yale University Press, which published a book about the Danish cartoon controversy, declined to include the cartoons in the book. When covering the mass murders of Charlie Hebdo cartoonists, leading U.S. newspapers, including the New York Times, declined to reprint the cartoons for which these cartoonists had died. When a YouTube video that was critical of Islam was blamed (wrongly, as it turned out) for having instigated the deadly attack on the U.S. embassy in Benghazi, Libya in 2012, prominent U.S. officials pressured YouTube to censor the video.
Beyond these extraterritorial censorial inroads into the U.S., originating in the world’s most autocratic regimes, we have no shortage of the homegrown variety, coming from all possible sources: from government officials all across the political spectrum, and also private sector forces, ranging from powerful tech titans to Twittermobs, and also reflecting ideologically diverse views. Many conservatives and Republicans have mocked campus calls to shield students from ideas that they find “divisive” or that make them “uncomfortable,” deriding the students as “snowflakes.” Yet many of the same conservatives and Republicans have appropriated those very concepts in actual and proposed state laws all over the country, which bar the inclusion of ideas that K-12 students (and sometimes also college/university students) find “divisive,” or that make them “uncomfortable.”
I could recite numerous additional specific free speech threats, ranging from burgeoning state laws that seek to curb rights of peaceful protesters (which tend to be supported mostly by conservatives and Republicans); to successful campaigns to halt the publication or distribution of works that are deemed to constitute “cultural appropriation,” or to perpetuate the “White Savior myth,” or to challenge certain predominant progressive views on social and cultural issues (which tend to be supported mostly by progressives and Democrats); to calls to eliminate First Amendment and statutory limitations on tech platforms’ liability for third-party content, thus denying most people the presumptively unfettered access (subject to content moderation policies) to convey and receive ideas that such immunity has fostered (which tend to be supported by officials and citizens across the political spectrum).
Although the specific threats will continue to change, experience demonstrates that one overridingly important pattern will persist: these threats will continue to emanate from all points on the political spectrum. For that reason, the single greatest general threat to free speech – past, present, and future – is ignorance about freedom of speech, and ignorance about the incalculable benefits that this freedom has bestowed upon individuals and society alike. If you are unaware of the essential role that this precious right has played in your life, you may not even realize when it has been violated, and you will not demand that it be respected, with the result that the right will atrophy, not only for you, but also for others.
How can individuals become more informed and engaged advocates for free speech in their communities?
They can start by learning basic free speech principles, including by reading my new book! In all seriousness, I wrote the book in order to equip anyone, including young people and non-lawyers, to become sufficiently conversant with free speech principles to empower them to fully exercise and defend their own free speech rights, and also to understand and defend the free speech rights of others.
There are also abundant, excellent online resources that provide not only information about free speech law and rights but also practical guidance for dealing with particular challenges to free speech. For example, we have been witnessing many attempts – often successful – to remove certain books from school and public libraries, and to remove certain books and topics from school curricula, or even college/university curricula. Multiple organizations have provided excellent reports about these actions, including guidelines for resisting them. These include (I’m listing them in alphabetical order): the American Civil Liberties Union, the American Library Association, FIRE (the Foundation for Individual Rights and Expression), the National Coalition Against Censorship, and PEN America Center. Moreover, some of these organizations and others will provide lawyers (pro bono) to advocate and litigate on behalf of free speech.
Last but far from least, individuals can band together with allies in their own local communities and specific institutions, to defend free speech in that specific context. For example, in reaction to the many censorial efforts aimed at public schools, many student groups have been formed to advocate for students’ right to read. And the organizations noted above provide specific resources for facilitating that kind of engagement. For example, the National Coalition Against Censorship has a “Kids’ Right to Read Program,” which trains middle and high school students to advocate and organize in their student bodies and in their local communities.
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