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How well do you know the First Amendment?

From Philadelphia’s National Constitution Center, a two-part explainer on the First Amendment



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Is Elon Musk a Free Speech Savior?

On the cusp on his Twitter takeover, a Constitution Center event this week reframed the plutocrat for your consideration — and reminded us of the First Amendment's magic

Is Elon Musk a Free Speech Savior?

On the cusp on his Twitter takeover, a Constitution Center event this week reframed the plutocrat for your consideration — and reminded us of the First Amendment's magic

It’s funny what passes for news, isn’t it? Earlier this week, I found myself tearing up at a public event, inspired in these dark times.

And, yet, if you weren’t in the grand hall atrium of the National Constitution Center Monday night for the installation ceremony of the giant marble First Amendment tablet that once adorned the facade of the Newseum in Washington, DC, you’d have known nothing about it. That said, why was I so moved?

The moment that got me was near the end, after a riveting give and take between four First Amendment experts — NCC CEO Jeffrey Rosen, Harvard Law’s Randall Kennedy, Foundation for Individual Rights (FIRE) President Greg Lukianoff, and law professor and former head of the ACLU Nadine Strossen. All, by the way, were in general agreement that Elon Musk’s purchase of Twitter — if he stays true to his word — was likely, on balance, a good thing for the state of democracy and free speech; more on that to come.

But, first, the emotive moment: Rosen, misty-eyed, turned from the invited audience in attendance and looked out at Independence Hall while reciting from memory what he termed the “legal poetry” of Supreme Court Justice Brandeis:

Those who won our independence believed … that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest threat to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.

The next day I called Rosen to see if, as I suspected, he was starting to well up, too. “Oh, I was extraordinarily moved,” he said. “To be using Brandeis’ words to explore the connection between the First Amendment and Jefferson’s Declaration of Independence and the Constitution while looking at the physical place where it all took place …” His voice trailed off, and there it was again: that lump in the throat.

Why? Why were two middle-aged Madisonian rationalists so overcome on a dreary Tuesday morning in Philadelphia?

So much is in peril now

I suspect it has something to do with the fact that so much is in peril right now, especially the First Amendment’s guarantees of freedom of speech, press, assembly, religion and governmental petition — taken together, Rosen calls them the greatest of all our rights. Every day here at The Citizen, the youngsters who do all the work roll their eyes when I tell them they’re really taking part in a daily miracle: Freely and joyously — because those two things are connected — sending ideas and thoughts out into the atmosphere for any and all to hear and consider. There are, of course, many ways America comes up short, but that idea — that every citizen possesses the God-given right to say what they think, no matter what — really is unique in human history.

And it is exceedingly imperiled. A century and a half after Walt Whitman warned that “America, if eligible at all to downfall and ruin, is eligible within herself, not without,” there was proof of the prophecy in the New York Times just a couple of months ago, in the form of a poll finding that only 34 percent of Americans believe that “all Americans enjoy freedom of speech completely” and that 84 percent find it a “very serious” or “somewhat serious” problem that most Americans “no longer speak freely in everyday situations because of fear of retaliation or harsh criticism.”

It seems like now, more than at any time in recent history, everyone just wants everyone else to shut the hell up. We’re awash in culture-wide anger; countrymen give each other the virtual — and sometimes literal — middle finger every day. And this unwillingness to listen and maybe learn from one another knows no political party or ideology. The left is as intolerant as the right, and vice versa.

On one side, as Lukianoff’s FIRE chillingly documents, we find students on college campuses shouting down and physically assaulting those with whom they simply disagree, and we see the glee with which the dangerous social media de-platforming of a former (if odious) president is met. On the right, we see book banning and censorious efforts like Florida’s so-called “Don’t Say Gay” law.

Locally, we see the frenzied efforts to cancel a law professor — Penn Law’s Amy Wax — for offensive and fact-challenged statements, seeming to forget all the while that the only reason to have a First Amendment in the first place, as Supreme Court Justice Oliver Wendell Holmes wrote in 1929, is to protect “freedom for the thought that we hate.”

It’s a tough notion to get your head around, right? Polls show that most Americans don’t even know that hate speech is protected speech, and that the law of the land charges us with answering offensive speech with better speech, as when the Courts agreed with the ACLU in 1977 that Nazis had the right to march in Skokie, Illinois, a predominantly Jewish town with a high proportion of Holocaust survivors.

Strossen, the former ACLU head, has written a book about this very topic: HATE: Why We Should Resist it With Free Speech, Not Censorship. In the Skokie case, the Illinois Supreme Court, the United States Court of Appeals, and the United States Supreme Court didn’t say that the citizens of Skokie needed protection from hateful, traumatic ideas. Instead, they found that hate speech is protected, because more speech is part and parcel of a vibrant democracy, and that, in the marketplace of ideas, expressions of bigotry give rise to their own refutation.

When good-hearted people hear hate, in other words, they tend to opt for love. So what happened when the Nazis won the right to march? Civil society had called their bluff. Counterprotestors turned out, only to find that hardly any Nazis had shown up. The takeaway ought to have been clear: To suppress speech is to give it power.

Speech can cause real and lasting damage. But giving in to the very human urge to suppress it is really to give up on the fragile American experiment itself.

But, in the blur of our 140-character interactions, we’ve lost the lessons of Skokie. Strossen’s own former shop, the storied ACLU, has even rejected its own history as a stalwart defender of the right to express unpopular views, vowing in the aftermath of Charlottesville in 2017 to balance defending groups whose “values are contrary to our values” against the potential “offense to marginalized groups.”

Free speech v. “wokeness”

There is, no doubt, a renewed tension between free speech and what has come to be called “wokeness.” Ibram X. Kendi, director of the Antiracist Research & Policy Center at American University and author of the bestselling How to Be an Antiracist, goes so far as to advocate for a federal Department of Anti-racism (DOA) that would, among other things, “monitor public officials for expressions of racist ideas. The DOA would be empowered with disciplinary tools to wield over and against policymakers and public officials who do not voluntarily change their racist policy and ideas.”

“I can’t be either optimistic or pessimistic about where speech will lead,” Rosen told me. “But I can be confident that, in the aggregate, unregulated debate is far preferable to all the alternatives.”

If that doesn’t set off First Amendment alarm bells for you, you’re likely a practitioner of what the late, legendary progressive journalist Nat Hentoff called Free Speech for Me, But Not for Thee, in a 1992 book by that title.

I know what you’re thinking, my beloved progressive friend: It’s easy for middle-aged White guys like me and Rosen to champion free speech rights, when we haven’t been called the N-word throughout our lives. But this is critical: No one on the Constitution Center’s panel was arguing that hate speech has no cost. Instead, Rosen, Kennedy, Lukianoff and Strossen all agreed: Speech can cause real and lasting damage. But giving in to the very human urge to suppress it is really to give up on the fragile American experiment itself.

“I can’t be either optimistic or pessimistic about where speech will lead,” Rosen told me. “That’s a question of history and politics and so forth. But I can be confident that, in the aggregate, unregulated debate is far preferable to all the alternatives.”

Into this tension now comes Elon Musk, perhaps the most unlikely free speech savior, to hear Rosen and the others tell it. For Musk has pledged that Twitter will follow First Amendment tenets, allowing all speech that the Constitution protects — even though, as a private entity, it is not obligated to do so. That goes further than Facebook, for example, which prohibits hate speech and personal attacks.

As Rosen wrote in a provocative Atlantic piece this week:

But Musk’s position is, in fact, convincing. Although private companies are not required to follow the First Amendment, nothing prevents them from doing so voluntarily. And in Twitter’s case in particular, there are strong reasons to believe that the First Amendment should presumptively govern. All four of the main principles that have historically guided the Supreme Court in interpreting the First Amendment apply just as powerfully to social-media platforms as they do to governments.

Critics, of course, suggest that this wild west approach to social media content will result in more hate speech, harassment and misinformation. In the Inquirer, writer and activist Gwen Snyder recently powerfully detailed the online — and real world — ‘attacks she’s suffered in an appeal to Musk to embrace content moderation.

But much of what Snyder outlines isn’t actually speech and is already against the law, like the tactic of “swatting”— calling in a false police report on someone to punish or intimidate them for expressing themselves on social media. It’s a common mistake. We tend to think that the Supreme Court has held that you can’t shout fire in a crowded movie theater, but it’s actually more complicated than that.

You can, in fact, shout “fire” — unless your speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action;” in other words, it’s actions that are illegal, not words or ideas. If you say something in order to start a riot and one does, in fact, break out, you should be charged with inciting a riot.

Guaranteeing free speech, as Musk has pledged, doesn’t mean we’ll see an uptick in civil discourse. In fact, it’s probably precisely the opposite, given the research done by Wharton’s Katie Milkman that finds the most shared articles online tend to be those that cause anger, anxiety and awe.

I don’t know how we get back to what Rosen refers to as the “Madisonian Republic of Reason.” But I know we don’t get there by giving in to the urge to shut others up.

After the stirring event at the Constitution Center, I came across this, written by the NBA player-turned-human rights activist Enes Kanter, now officially Enes Kanter Freedom — and it, more than anything I can write, is a testimony to the power of the timeless and freeing ideas carved into that tablet now at the NCC:

The first time I came to America, in 2009, one of my teammates at Stoneridge Prep, in Simi Valley, California, was criticizing the president. I was scared for him, because I thought he was going to be jailed. Then he sat down and talked to me about freedom of speech, religion and the press. “Wait,” I said, “you’re telling me a TV channel or a newspaper is not going to be shut down because they are criticizing the regime?” He told me that’s not how it works here. I was shocked.

The thing about freedom is, once you taste it, you want everyone else to taste it, too. That’s why I marched for Black Lives Matter and spoke out for democracy in Hong Kong. It’s why I advocate for Tibetan freedom and safety for Taiwan. It’s why I continue to call out the corporations that talk about social justice but ignore China’s Uyghur genocide. And it’s why, a few months ago, I changed my name. I’m now Enes Kanter Freedom.

I wanted young people to see my jersey on the court and go online and research what I’ve been through. They’d find that my passport had been revoked by my home country, Turkey. They’d read about how there have been ten arrest warrants for me in the past four years. They’d know that my father was put in jail and tortured, and that I’ve been called a “terrorist” and an “enemy of the state,” all because I dared to criticize the government — just as my high school teammate, and just as my Celtics teammates, do so casually. I want them to realize how lucky they are.

That is why, Monday morning, we here at The Citizen will be back at it, exercising the miracle of First Amendment rights, freely and joyously.


Watch: Andrew Sullivan at Citizen Speaks

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Guest Commentary: Cancel Culture at Hawk Hill?

The Fix: Is City Council Anti-Democratic?

Header photo by NVIDIA Corporation / Flickr

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