Speech impediments - Assault On The First Amendment - regulated property rights prove incompatible with free speech

National Review, Oct 10, 1994 by Michael Greve

It never quite added up: the tendency of modern liberalism to favor strict regulation of property rights, and absolute freedom of speech. Now the mask is off, and free speech is out.

J. DONALD SILVA is a Congregational pastor in New Castle, New Hampshire. He had also been a writing instructor at the University of New Hampshire for thirty years, until April 1993, when UNH suspended him, charging that he had created an "intimidating, hostile, and offensive academic environment." The evidence consisted of two offbeat remarks Silva had made in class - one comparing "focus" in the writing process to sex, the other illustrating the meaning of "simile" with a famed belly dancer's comparison of her profession to "Jell-o on a plate with a vibrator under the plate." After seven female students complained, UNH administrators suspended Silva without pay and told him to undergo psychological counseling before petitioning for reinstatement.

When Silva, unable to reach an accommodation with the school, filed a lawsuit, UNH hired one of New Hampshire's top law firms to mount a scorched-earth defense. (A year and a half later, Silva has been provisionally reinstated under court order.) Commenting on the case, NOW and academics of a similar stripe have maintained that there can be no justice for women unless we deal resolutely with characters like Don Silva. Barbara White, a women's studies professor at UNH, explained that "the First Amendment and Academic Freedom (I'll call them FAF [sic]) have traditionally protected the rights of white heterosexual men." For others, "FAF ... is just a yoke around our necks."

This unapologetic defense illustrates a sad truth: liberalism no longer stands unequivocally for free speech. Radical feminists like Catharine MacKinnon and Andrea Dworkin were the first to argue that Women's equality required the suppression of pornography and of "verbal conduct" that might give offense. Women's groups have waged an aggressive legal campaign to suppress pro-life protests - including peaceful sit-ins and civil disobedience - around abortion clinics. Other liberal constituencies have also latched onto the anti-free-speech agenda. Civil-rights organizations have lobbied successfully to expand civil-rights laws so as to prohibit not only discriminatory conduct but also offensive speech. "Hate speech" laws, stiffer penalties for crimes motivated by racial or ethnic animosity, and campus speech codes are among the best-known examples. And recently it came to public attention that federal housing bureaucrats, egged on by advocates for "the homeless," were investigating private citizens for speaking out against the placement of shelters and similar facilities for the "handicapped" in their neighborhoods.

Thinning the Ranks

Some on the Left have so far resisted the urge to suppress speech that certain groups find offensive. Traditional civil libertarians - perhaps best exemplified by columnist Nat Hentoff and ACLU President Nadine Strossen - have maintained an uncompromising stand on the First Amendment, even as many of their political allies have turned against it. But the civil-libertarian ranks have grown alarmingly thin, and they are confronted with an army of partisan agitators - on everything from racial justice to sexual equality to homosexual rights - who are far more ambitious. It is not a foregone conclusion that the civil libertarians will lose this battle. But it is not at all unlikely, and there would be a certain logic to it.

Liberalism (in the contemporary sense) has never had a fundamental problem with coercion. Since the 1930s, it has championed state power over "mere economic rights" to facilitate the collective pursuit of equality. "Personal" rights were held to be different; privacy (that is, abortion and non-marital sex) and free speech, liberalism held, must enjoy broad constitutional protection. Unlike property rights, these liberties did not seem to threaten the pursuit of equality. But this dichotomy was never totally secure. In many settings, speech is as much an instrument of power as money is. It may therefore raise the same egalitarian concerns that, from a liberal's perspective, require expansive regulation of business. And in fact, New Deal liberals advocated government regulation of speech in areas such as broadcasting, advertising, and political campaigns.

So liberalism's support for free speech was always more selective and instrumental than its absolutist rhetoric implied. Its tendency was to turn the First Amendment into a citadel for academics, advocates, and progressive social constituencies. As long as they could speak in a robust and wide-open debate, reason would triumph over prejudice, enlightened public opinion over entrenched political and economic power.

This confidence in the harmony of civil-libertarian values and egalitarian aspirations is a thing of the past. Progressive opinion has come to doubt that free speech and debate will cure an irredeemably racist, reactionary society; and once this doubt seeps in, it is not so easy to explain why the pursuit of equality should stop at the water's edge of speech. University professors, including many legal scholars, now stress that speech can be an instrument of oppression as well as of liberation; that it may cement existing "power structures"; and that powerless minorities should receive special protection from offensive speech. This view of the First Amendment is no longer marginal within the academy (consider, for example, Democracy and the Problem of Free Speech by Cass Sunstein, a widely respected legal scholar), and it has begun to make its mark on the law.