What Everyone Needs to Know About Free Speech

My Q&A with law professor and former ACLU president Nadine Strossen

Nadine Strossen (photo courtesy Department of Justice)

Today’s edition of Some Assembly Required is an interview with Nadine Strossen, the John Marshall Harlan II Professor of Law Emerita at New York Law School.

Professor Strossen is the past President of the American Civil Liberties Union (1991-2008) and a Senior Fellow with the Foundation for Individual Rights and Expression (FIRE). She and I serve together on the advisory board for the Bech-Loughlin First Amendment Center at the University of Texas. She is the author of the newly published book, Free Speech: What Everyone Needs to Know®, and the host and project consultant for a newly-released 3-part public TV series, Free to Speak.

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John Inazu: Your new book mentions a “free speech culture.” What does it take to have such a culture, and how close are we to that culture in the United States today?

Nadine Strossen: Legal protections for freedom of speech are necessary, but not sufficient, to create conditions in which free speech can maximally flourish: where all members of our society enjoy actual and equal opportunities to express themselves, and to participate in discussions about public issues, no matter who they are, and no matter what they believe. 

Public opinion surveys indicate that many people do not exercise their legal free speech rights because they fear adverse reactions, including calls for social ostracism and even the loss of jobs or expulsion from school. But critics of speakers and their ideas—including those who advocate for harsh punishment or consequences—are exercising their free speech rights. 

Yet the term “cancel culture” captures the concern that some criticism is disproportionately harsh, and has an unduly speech-suppressive impact, not only on the directly targeted speaker but also countless others. Surveys indicate that large numbers of people across the political and demographic spectrums are deterred from voicing certain views, or even from addressing whole subjects, for fear that they might face such harsh consequences. These surveys do not focus on speech that most of us believe should be self-censored, including targeted racist or other epithets directed at another person. Rather, they concern general expressions of opinion, or even asking questions, about complex public policy issues, including those involving racial justice, gender equality, police reform, immigration law, and pandemic measures.

JI: You wrote your latest book as a series of questions and answers. What was the inspiration and motivation for writing your book in this format?

NS: The book is part of an Oxford University Press series, “What Everyone Needs to Know®.” The books in this series all conform to certain format specifications, including that they are written in question-and-answer format.

That format happens to be especially congenial to my overall approach to free speech and to my discussions and explanations about it. In my roughly 200 public presentations each year on free speech and related issues, I stress the crucial role of open inquiry and discussion. I almost always use an interview or panel format rather than a conventional monologue—the interactive format models my approach and is more dynamic and engaging for both me and the audience.

Since 2018, I have answered thousands of audience questions about free speech. I never get tired of listening to, thinking about, and answering these questions. But it occurred to me that it would also be valuable to write out my answers to the most important and recurrent questions. So I was delighted to learn about the Oxford University Press series and that it didn’t already have a book about free speech.

JI: In a nuanced discussion of the “marketplace of ideas” theory of the First Amendment, you contextualize the phrase and note that it was never meant to suggest some unvarnished or uninhibited “search for truth.” You argue nonetheless that “free speech is a less imperfect vehicle for pursuing truth than is the censorial alternative.” Do you think this premise holds in an era of more sophisticated algorithms and generative artificial intelligence? Is free speech still the “less imperfect vehicle” in this new era?

NS: In our ongoing “techlash,” the giant platforms have become the scapegoats for too many problems for too many people, who accordingly advocate online censorship as the purported quick fix. For example, notwithstanding their vast policy differences during the 2020 election campaign—including their diametrically different views about what was (allegedly) wrong with online expression—both Donald Trump and Joe Biden agreed that online platforms should lose their immunity for third-party content under the 1996 federal law known as “Section 230.” 

It is true that the tech giants wield enormous power over our communications—and hence over our freedom of speech, as well as our democratic self-government. Accordingly, platforms’ actions warrant critical scrutiny, so we can design well-tailored policy responses. That is why we must avoid jumping to conclusions that aren’t sufficiently grounded in evidence and analysis. Throughout history, controversial expression on new media has been scapegoated for the then-current societal problems, leading to censorship that turns out to be the worst of both worlds: it stifles free speech but does not meaningfully address the pertinent problems.

First Amendment law sensibly provides that speech should be restricted only as a last resort, when evidence shows that the restriction would materially advance the goal at issue, and that non-censorial measures can’t effectively do so. After all, it doesn’t make sense to censor speech in order to reduce polarization, if the censorship doesn’t actually reduce polarization, or if non-censorial strategies would do so as effectively. 

JI: Is online expression more polarizing than offline expression?

NS: Evidence indicates that polarization is fueled by multiple factors, including expression on traditional media, and that online media may not even have a net negative impact in this regard. Along with social media, traditional media also seek engagement by playing to audience members’ anger and fear, as underscored by the old adage, “If it bleeds, it leads.”

Like social media, traditional media have courted particular audience segments based on partisan affiliations and ideological beliefs. Moreover, there are indications that even mainstream media, which formerly sought to appeal to broader audiences, are now instead cultivating niche audiences, and feeding them content that appeals to and deepens their ideological allegiances.

Reputable scholars have concluded that people who gain their information online typically consult more sources, with more diverse perspectives, than people who gain their information through legacy media. Additionally, online platforms facilitate fact-checking and other research, which counters the potential negative impact of misleading or biased communications. These considerations certainly do not suggest that we should overlook problems of online disinformation and polarization, but rather that we should not exaggerate them at the cost of insufficiently addressing other significant contributors to these problems.

JI: I am increasingly concerned that partisan rhetoric is losing its force by overusing words like “hateful” and “evil.” For example, I’ve noted in previous post the shift from calling a political opponent “wrong” to calling them “evil.” Is there a similar danger with the use of the term “hate speech”? What can we do to mitigate this concern?

NS: The term “hate speech” has been hurled at a seemingly endless array of speech with diverse and even opposing messages, linked only by the fact that the person using this epithet hates the idea expressed in the speech. The inherently vague, broad, and manipulable concept of “hate” means that laws aimed at restricting this expression inevitably vest largely unconstrained power in enforcing authorities. Even the most responsible authorities will rely on their own subjective values or the values of powerful majoritarian interest groups in determining what counts as “hate speech.” 

Terms like “hate speech,” “disinformation,” and “extremist speech” cannot substitute for a reasoned explanation of why someone finds a viewpoint or expression problematic. For those of us who support free speech and democratic discourse, a better approach would be a reasoned explanation, citing evidence and analysis to support the conclusion. It would also be helpful to use concrete, specific language to promote mutually open-minded inquiry and exchanges. 

For example, rather than dismissing the phrase “Black Lives Matter” as hateful or discriminatory speech, one could argue that the phrase undermines the approach famously championed by such towering leaders as Martin Luther King and Nelson Mandela, that all people are inherently entitled to equal dignity, respects, and rights. Correspondingly, rather than dismissing the phrase “All Lives Matter” as hateful or discriminatory speech, one could explain that, in a historical context where Black people are disproportionately subjected to discriminatory treatment by law enforcement personnel and others, that phrase conveys an important message that is consistent with the underlying understanding that all lives do, in fact, matter.

JI: You spent seventeen years as the president of the ACLU. What case were you most proud to be a part of while you were there, and why?

NS: The Supreme Court’s first decision about the Constitution in cyberspace was a 1997 decision, Reno v. ACLU. In the early 1990s as the Internet became widely used, regulators turned to its potential dangers to children. In 1995, Congress passed the Communications Decency Act (CDA), which would have greatly suppressed online free speech. The law was supported by the Clinton Administration and almost all members of Congress. 

The ACLU lobbied against the law, but we also recognized it was likely to pass, so simultaneously prepared a lawsuit to challenge it. No sooner had the ink dried on Clinton’s signature on the law than we filed our constitutional challenge—not only our own behalf, but also on behalf of a diverse array of mainstream publishers, as well as organizations whose expression was especially endangered by the law, including reproductive rights groups, LGBTQ+ groups, and human rights groups. All of these groups engaged in expression that could have been suppressed under the law’s vague, overbroad concepts of “indecent” and “patently offensive” expression.

In defending the CDA, the Clinton Administration argued that the Internet was analogous to broadcast TV and hence that online communications should receive only the reduced First Amendment protection accorded to broadcast expression. Fortunately, the Supreme Court unanimously rejected that argument.

As I constantly tell my students, the world would have been vastly different if the Internet had been nipped in the bud by the CDA. And that they should not take online free speech for granted! 

JI: Not many people are prominently affiliated with both the ACLU (a left-leaning expressive liberties organization) and FIRE (a right-leaning expressive liberties organization). Could you describe your commitment to the cross-partisan importance of protecting expressive liberties?

NS: Consistent with the spirit of free speech and dissent, I respectfully take issue with your mischaracterization of both organizations.

Having worked closely with the ACLU since I graduated from law school in 1975, and having worked closely with FIRE since it was founded in 1999, I have no doubt that both organizations are equally committed to neutrally defending civil liberties for people of all identities and ideologies. I also know that, beyond this principled commitment, both organizations have in fact defended civil liberties for a diverse array of individuals and organizations, including those who fall all across the ideological spectrum. 

I regularly field questions that the ACLU “used to” evenhandedly defend civil liberties in an ideologically neutral fashion, but “recently” has become politicized, tilting toward the left. These questions and comments always make me chuckle, because they have been made steadily throughout my decades-long ACLU involvement. As I pointed out at the time, similar charges went back much earlier, virtually to the ACLU’s founding in 1920. As ACLU Legal Director David Cole has noted, the organization defends freedom even for the “thought that we hate”—which, in the ACLU’s case, would particularly include speech inconsistent with civil liberties values. 

FIRE’s two “founding fathers”—Alan Charles Kors and Harvey Silverglate—were at opposite ideological poles, one a conservative and the other a liberal. To this day, FIRE’s staff, leadership, and clients are extremely diverse in their political, philosophical, and religious beliefs.

JI: The Supreme Court may soon consider an abortion protest case, Vitagliano v. County of Westchester, which involves a law establishing a zone around abortion clinics that prohibited anyone “engaging in oral protest, education, or counseling” from coming within eight feet of another person without that person’s consent. The lower court’s decision relied on the Supreme Court’s 2000 decision in Hill v. Colorado, which upheld a similar restriction. What are your thoughts about Hill and Vitagliano?

NS: Hill was litigated and decided while I was still the ACLU’s president. I strongly supported the ACLU’s brief in that case, arguing that the Colorado statute at issue was an unconstitutional viewpoint-discriminatory regulation of anti-abortion expression, and I strongly agreed with the dissenting opinions. I continue to maintain these perspectives.

I was very disheartened that few groups that had a stake in robust free speech principles joined the ACLU in opposing the Colorado statute at issue.  To the best of my recollection, the only ally we could enlist was the AFL-CIO.  The ACLU is a leading supporter of abortion rights, but this didn’t stop us from standing up for free speech rights of those with differing views on the abortion issue. I was especially disappointed that Planned Parenthood and others in the “pro-choice” movement didn’t join our brief.

I hope that the Supreme Court will expressly overturn Hill and its flawed analysis, and perhaps the Vitagliano case will provide it an opportunity to do so.

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