Free Speech

“Cancel culture.” “Political correctness.” “Hate speech.” Americans have been arguing about free speech since passage of the Alien and Sedition Acts. Recently, there have even been reports of disagreement within that bastion of free-speech defense, the ACLU.

As we all know, no one is trying to shut up people with whom they agree. The First Amendment was designed, as Justice Holmes memorably put it, to “protect the idea we hate.” In an effort to explain why that insight is so important, I often shared with my students a personal experience from “back in the day”– early in my long-ago tenure as Executive Director of Indiana’s ACLU.

Members of the KKK had applied to use the steps of the Indiana Statehouse for a rally. Then-Governor Evan Bayh (who surely knew better) refused to allow it. The Statehouse steps had routinely been used by other organizations, and despite Bayh’s posturing, the law clearly forbid the government from allowing or disallowing such use based on the content of the message to be delivered.

So the Klan came to the ACLU.

At the time, the people who ended up representing the rights of these odious people included the Jewish Executive Director (me), the affiliate’s one secretary, who was Black, and a co-operating attorney, who was gay.

Each of us knew that if the Klan ever achieved power, we’d be among the first to be marginalized or even eliminated–so why on earth would we protect the organization’s right to spew its bigotry? Because we also knew that– in a system where government can pick and choose who has rights– no one really has rights. The government that can muzzle the KKK today can muzzle me tomorrow–and as we have (painfully) learned, we can’t assume that good people will always be in charge of that government.

As one ACLU leader put it, poison gas is a great weapon until the wind shifts.

As with so many other misunderstood elements of the Bill of Rights, the issue isn’t what you may say or do– it is who gets to decide what you say or do? And right now, at the same time state-level Republican legislators are accusing the left of “canceling” their messages and “censoring” Dr. Seuss, they are waging a determined war on protesters’ and educators’ right to say things with which they disagree. 

As Michelle Goldberg recently reported,

In a number of states, Republicans have responded to last year’s racial justice uprising by cracking down on demonstrators. As The Times reported in April, during 2021 legislative sessions, lawmakers in 34 states have introduced 81 anti-protest bills. An Indiana bill would bar people convicted of unlawful assembly from state employment. A Minnesota proposal would prohibit people convicted of unlawful protesting from getting student loans, unemployment benefits or housing assistance. Florida passed a law protecting drivers from civil liability if they crash their cars into people protesting in the streets.

Meanwhile, the right-wing moral panic about critical race theory has led to a rash of statewide bills barring schools — including colleges and universities — from teaching what are often called “divisive concepts,” including the idea that the United States is fundamentally racist or sexist. Even where such laws haven’t been passed, the campaign has had a chilling effect; the Kansas Board of Regents recently asked state universities for a list of courses that include critical race theory.

As Goldberg says, there’s nothing new about the left growing weary of sticking up for the rights of reactionaries. Personally, I would find it really satisfying to shut down Faux News, or to tell the My Pillow Guy to go stuff a sock in it. The problem is, satisfying that urge won’t take us where we need to go. Goldberg’s last sentence is worth contemplating.

 Maybe every generation has to learn for itself that censorship isn’t a shortcut to justice.

To which I would just add: and criticism of your position by people who aren’t using the power of government to shut you up isn’t censorship.


  1. Thank you for once again introducing the the spirit and letter of the First Amendment. I wonder if the founders smirked a little realizing that they’d just codified the right for everyone to make a horse’s ass of themselves. After reading much history about our own Revolution, some of those horse’s asses were actually in our first Continental Congress and did more than a little to make Washington’s job tougher even while he fought so they had free rein to do so.

    Today, Republicans, the backward horse’s asses that they are, are still trying to create their own “cancel culture” by canceling knowledge, the freedom to disseminate it and anything else they disagree with. Have you read Jim Jordan’s daily vomit tweets? It saddens me to say that he represents some good people in my home state. Well, of course he kept his little mouth shut while OSU wrestlers were being fondled by their coach.

    Jim Jordan. Horse’s Ass. Let him speak. He certainly gets my horse laugh.

  2. I am assuming that laws granting immunity to criminals who ram their cars into pedestrians will be challenged in court, along with these other right-wing laws concocted to get the attention of their neanderthal base.

    Meanwhile, the Council for Foreign Relations members gets to clamp down on progressive outrages like worker pay, racism, sexism, war, inequality, etc., etc.

    Seems the oligarchies have opposing ideas or do they?

    By the way, how did Pete Buttigieg get an invite to CFP as a war grunt and Mayor of South Bend? 😉

    I guess large social platforms were allowed to grow monopolies because they served a purpose for the oligarchy — at least the Oligarchy that controls the Democratic Party. They can censor, ban, marginalize, etc. with their internal mechanisms. For instance, my Facebook page reach went down to nothing on February 1st of this year. Was there an event that took place in January that our Oligarchy used to restrict free speech? LOL

    Therefore, even though our government has sophisticated software developed by Israel’s high-tech unit, it was not used to prevent 1/6 from happening even though it was planned out in plain site on Facebook.

    I hope everyone on here understands by now, that Trump was not a one-time event because there is an entity that controls the Democratic Party and much of the Republican Party. However, the base for the right-wing has been co-opted by a propaganda construct of reality that they can grasp. There is a hint or whisper of truth within the QAnon crowd that politicians and Murdoch can use to their advantage. They can use Soros as the boogeyman instead of the collective Oligarchy of money, power, and influence.

    However, the Left-wing and their media also oppress their base, especially their progressive wing where only 2 players got a seat in the Top 30 leadership positions. The rest have sold out to the Plutarchs/Oligarchy.

    Divide and conquer of the working classes is still the game. The illusion of choice is what plagues the people. As long as 95% of the media is controlled by the collective oligarchy, the use of propaganda over truth will be the key instrument against the masses.

    For those wanting a nice dose of reality, I would recommend reading Chris Hedges’ speech he gave the other night at a Julian Assange freedom event. Here’s a taste:

    “Tyrannies invert the rule of law. They turn the law into an instrument of injustice. They cloak their crimes in a faux legality. They use the decorum of the courts and trials, to mask their criminality. Those, such as Julian, who expose that criminality to the public are dangerous, for without the pretext of legitimacy the tyranny loses credibility and has nothing left in its arsenal but fear, coercion and violence.

    The long campaign against Julian and WikiLeaks is a window into the collapse of the rule of law, the rise of what the political philosopher Sheldon Wolin calls our system of inverted totalitarianism, a form of totalitarianism that maintains the fictions of the old capitalist democracy, including its institutions, iconography, patriotic symbols and rhetoric, but internally has surrendered total control to the dictates of global corporations.”

  3. Sheila, thanks for reminding us about the Indiana Klan’s demonstration at the statehouse. They eventually were given a permit. Peter Sterling, then CEO of the Children’s Museum called me and said all the museum’s in the city agreed to open free to the we public the same day with petitions in the lobby for guests to sign: “Would the YMCAs around the city join?”. We did with the support of full page ad countering the Klan with positive messages. The Y adopted a theme from a refrain America the Beautiful: “We crown thy good … With brotherhood” on banners at entrances of all YMCA entrances. We blunted the Klan’s attempt for grandstanding at our State’s capitol with a media blitz supporting a positive message. The Klan became a non event. Free speech countered by free speech

  4. Norris, that’s the way it should work, but in these days of Faux News, OAN and Sinclair, most of those hearing the bad free speech will never have to hear the good free speech.

  5. Q-TODD: just how are your CONSPIRACY THEORIES different from Q-ANON’s? Well, maybe you generate more of them.

  6. For the right, and the religious right, the issue is “Agenda Ubber Alles.” that’s a part of why they were so quick to adhere themselves to Trump…they knew he was going in their direction, so they hopped aboard his train, consequences be damned.

  7. Larry, did you read the Pulitzer-prize winning journalist and author’s article, or did it not fit into your egoic construct of how things work?

    The Koch’s have been manipulating the right-wing base for a very long time. Remember, the Koch’s hate the government – the government is the problem. They’ve done everything they can to disassemble the government. They took over the GOP while Mitch Daniels was Indiana’s governor. You can read Jane Mayer’s book or Anne Nelson’s book.

    However, the Koch’s do have some similarities with the other Plutarchs who control the Western Democracies through the Council on Foreign Relations. I would strongly encourage you to read Larry Shoup’s recent article in the Monthly Review. It will shatter what you believe to be a reality as you live your life on a level below the two masterful facades called our “political parties.”

    Hedge’s comment about an “inverted tyranny of laws” is an exceptional description explaining everything we’ve been discussing on this blog for quite some time. 😉

  8. Seeking to deny employment, housing, and even existence to those with whom you disagree is a very old tactic. I do believe that one “Saint Ronald of Reagan” supported such measures. It was called the Hollywood Blacklist. Also note the “kindly Ronald” barred air traffic controllers from every working in that field again for LIFE.

    Opinions may be odious, but lies kill. The answer to bad speech is more speech, but “A lie can travel around the world and back again while the truth is lacing up its boots.” (note – not Mark Twain). So what do we do.

    “Chloroquine cures COVID-19”
    a lie – people could (and may have) died (not to mention a large waste of time and money)

    “Masks(the vaccine) kill more people than COVID-19”
    a lie – many people did die

    “The election was a steal”
    a lie – at least one person died on 1/6

    “The deep state is controlled by people to drink baby’s blood.”
    a lie – nobody died from this lie that we know

    So, where do we draw such a line?

    I don’t think we can, so we go back to Sheila’s main point – the government shouldn’t be involved with those decisions, but if private companies want to, that is not covered by the First Amendment. It would be useful if they were transparent about their criteria — and not cave to “right” or “left” pressure campaigns, but we must keep the government from the process.

    Projection? It is the mainstay of today’s GOTP – the Trumpist Party is always saying – “Not me, it is you who are doing THAT” — substitute anything and everything for “THAT”

  9. I often wish more people had grown up with my Mom. She always reminded us that our words carried consequences; they could help, lift up, inspire; or hurt and damage another person.

    She raised us to us our words with care and responsibility.

    I learned early to use that “executive director” in my frontal cortex and think before I speak.

  10. I am glad to live in a country where I have free speech. But for me being allowed to say anything I want is an amoral law. I return to the Buddhist concept of right speech. Is it thoughtful, honest, intelligent, necessary, kind? I watched a Republican Senator speak with civility on the View even as the women who are on the View made divisive remarks. Martin Luther King was an incredibly articulate speaker who could quote the white founders to make his arguments for civil rights. At Toastmasters all our speeches were 5-7 minutes,and all of them were reflective of the right speech principle.

    I simply refuse to engage in hate speech even with those who attend the Westboro Baptist church. To me, a perfect example of people countering their hate speech were the people who dressed up as angels and blocked the family of Matthew Shepard from viewing the ugly placards.

    I wish more Americans ,even those with whom I disagree ,would put a rein on their tongue as I choose to do. After all with every freedom, comes responsiblity.

  11. I’ve been on a rather large and active ACLU Board, King County WA, Seattle etc.
    Take it as you will, but I sent back their fundraising “poll” with “too woke for me!” scrawled across it.
    Maybe later when they’ve calmed down a bit.

  12. I remember teaching a class at the University of Indianapolis several years ago and discussing the First Amendment Free Speech Clause. My students were dumbfounded by the idea that the Free Speech Clause protected hateful, even racist, speech from being stopped by government. They just assumed that that type of speech could be banned.

    Kudos to Larry K for calling out Todd. Anyone who thinks conspiracy theories are just on the right are most certainly wrong.

  13. “As with so many other misunderstood elements of the Bill of Rights, the issue isn’t what you may say or do– it is who gets to decide what you say or do?”

    It also includes the “language” and your presentation of speech you have the right to say and do. Will defense attorneys for the insurrectionist, this is IF the miracle of any trials happens, claim their 1st Amendment right to freedom of speech and “to petition the Government for a redress of grievances.”? Yes, I omitted the portion “or the right of the People peaceably assemble”, it is separated by commas in the 1st Amendment. Was that done by founding fathers to stress “peaceably” or was it meant as a separate issue?

    By the way; I apologize for being late with my comments on this blog but the Saturday night storm knocked out my power from 11:00 p.m. till 6:00 p. m. Sunday evening. A ridiculous and unnecessary situation only on the north side of the 6600 and HALF of the 6700 block of East 19th Street; this being a repeated issue the 16 years I have lived here, no matter the weather. Just using my freedom of speech to vent before heading to Kroger to replace the food in my fridge and freezer I had to throw out.

  14. Loved the KKK column. It reminded me of an incident involving my father about 60 years ago. He chaired the board in a northern Indiana city that had the responsibility for public safety. The Nazi Party applied for a permit to conduct a march led by the their national leader. Without consulting the other board members he told the Nazi petitioner that the board would not issue a permit to the Nazi Party. Nothing more was heard the Nazi Party. The irony was: Nobody need a “permit” to parade at that time. The police however always wanted a notice so proper resources could be allocated.
    The KKK is an odious organization. However, the right of the KKK to meet, protest, march, speak should be protected so that all of us can continue to enjoy the rights to assemble and speak in peaceful protest. However, the lawyers, whether ACLU inspired or not, should be able to refrain from representing odious speakers and marchers. Lawyers are not like buses that have to take every passenger standing on the curb.

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