At 5:00 pm today, I will participate in a panel discussion at the McKinney School of Law (my alma mater), focused on whether the Free Speech protections of the First Amendment tend to promote incivility.
Back in the day, when I was Executive Director of Indiana’s ACLU, I mounted a campaign through the organization’s newsletter to promote civility. That campaign caused consternation for some members, who worried that an emphasis on civil discourse somehow undermined, or was evidence of less than robust support for, Free Speech.
They missed what I believe to be the central point.
Philosophers from John Stuart Mill to Alexander Mieklejohn have argued for protection of speech and the free exchange of ideas; they have seen the “marketplace of ideas” as the absolutely necessary foundation of the search for truth. (As Mieklejohn famously said, People who are afraid of an idea—any idea—are unfit for self-government.)
The nation’s Founders understood that all ideas, no matter how noxious, should be available for discussion. They certainly didn’t protect speech because they underestimated the danger ideas could pose; they knew how powerful –and damaging–ideas could be. They protected free expression because they understood that giving government the authority to decide which ideas are acceptable—what sort of speech should be permitted– was far more dangerous.
But that is where civility comes in. If free speech is to achieve its purposes—if it is to encourage us to consider and vet all ideas, consider all perspectives—we need to listen to each other. Insults, labeling, dismissing, racial “dog whistles”—all those hallmarks of incivility—distract from and derail the kinds of genuine conversation that the First Amendment is intended to foster.
Screaming invective across political or religious divides undermines the purpose of the First Amendment’s Free Speech provisions. Is such speech protected? Absolutely. Is it useful? Not usually.