Free Speech Is Under Attack in Post-9/11 America

Detroit News

In November 2003 the Detroit News published the following commentary on the status of free speech in the United States. The Detroit News identifies two primary types of threats to free speech in America. The first are acts and pronouncements of the federal government following the September 11, 2001, terrorist attacks—actions that the authors contend impinge on the public's right to know about and dissent from government actions. The second group of threats consists of college and high school speech codes and policies that seek to eliminate from school campuses speech deemed offensive or prejudicial. Such rules have seriously eroded free speech in places where it should be protected.

Primary Source Text

Americans' guaranteed freedom to speak their minds without fear of retaliation is under attack from both the right and the left.

Colleges, courts, government agencies and the forces of political correctness are slicing off slivers of the First Amendment's promise of free speech.

The Patriot Act, with its expanded powers to snoop into the private correspondences, conversations and reading habits of ordinary Americans, has dampened public discourse and chilled political dissent.

Source

Detroit News, "Rules Stifling Free Speech Damage Democracy," November 18, 2003. Copyright © 2003 by Detroit News. Reproduced by permission.

This is an assault on the most basic of American freedoms and threatens to erode a fundamental tool for change in the United States—the ability of a committed, and often unpopular, minority to challenge the status quo.

"One of the things that has defined the (Attorney General) John Ashcroft administration is that it is unpatriotic to dissent or to object to government policy," says Kary Moss, executive director of the American Civil Liberties Union in Michigan.

"And hand in hand with that is an increased priority on secrecy in the department itself. There are two issues—the right to speech and the right to know what our government is doing. They're intertwined."

While the closing of court proceedings such as deportation hearings and terrorism trials violates due process rights of defendants, it also impinges on free speech by limiting the public's ability to monitor and respond to the legal system.

"How can we dissent, how can we preserve our right to speech if we don't know what our government is doing?" asks Moss.

But it's not only the government that is stifling speech. Those who would object to unpleasant or offensive expressions that might be viewed by some as hurtful are also reining in the ability of Americans to say what they want.

Activists have used a variety of tactics to accomplish their objectives. They have exploited exceptions to the First Amendment to silence voices counter to their ideology. And they have persuaded universities to impose drastic speech codes on students and faculty, turning institutions that were supposed to be bastions of free speech into enclaves of repressed speech.

Silencing the Campuses

Long before September 11, college speech codes, designed to create a more friendly campus environment, began eroding free speech.

And while the goal is admirable—creating study environments that are free of hostility—it has the effect of treading on the constitutional guarantees of free expression.

For example, the harassment policy of New York's Bard College forbids conduct that "causes embarrassment, discomfort, or injury to other individuals or the community."

In essence, the contrived right not to be offended is trumping the expressed right to free speech, the crown jewel of the Constitution.

Courts tossed out early campus speech codes, including one at the University of Michigan, precisely because they impinged on free speech. The codes were revived in 1994 when the U.S. Department of Education threatened to withdraw federal funding from universities if they tolerated an environment that violated the Civil Rights Act's bans on discrimination by race or sex.

That gave universities cover to restore speech limits. The Foundation for Individual Rights in Education, a Philadelphia organization that is dedicated to tracking and eradicating threats to campus speech, says speech codes are the rule rather than the exception in higher education. To protect these codes from legal challenges, campus officials often tuck them into harassment or diversity policies.

The codes have been used to keep both conservative and liberal speakers from campus podiums, cleanse student newspapers of out-of-the-mainstream opinions and disband student groups that advocate causes deemed objectionable by other students.

Each year, student newspapers nationwide report more than 20 instances of their campus publications being stolen, often by groups that disagree with the content.

Instead of being places where even the most obnoxious ideas are dissected and debated, college campuses now are cloaked in self-imposed silence.

Making Speech a Crime

Increasingly, government officials at all levels are wrongly equating speech with criminal action.

They follow zero-tolerance trends that need to be reversed for two reasons. They chill free speech. And they fail to distinguish between crime and writing or speaking about crime.

In Mount Pleasant, a high school junior criticized his school's policy on tardiness in a paper that threw in lewd references to school staff. He was suspended for "verbally assaulting" those mentioned. But a federal judge later ruled Michigan's verbal assault law unconstitutionally vague. By definition, "verbal" is speech that can claim First Amendment protection while "assault" is a physical attack that cannot claim such protection.

Even poetry is under attack.

In Blaine, Wash., a high school student penned a poem that included scenes of murder and a suicide. He gave it to his teacher to check for spelling and style errors. The teacher took it home, read it, called police and the student was expelled. As the teen-ager's attorney later said, the boy was bounced for "writing a powerful piece of literature."

In Ann Arbor, a University of Michigan sophomore was jailed without bond for writing fiction about a rape-slaying. Prosecutors charged the student, Jake Baker, for what he was thinking and writing.

Calling Baker a threat, they used a psychological analysis to say that—someday—Baker might do something akin to what he had written. That's a scenario that would be at home in George Orwell's novel "1984"—punish someone for what they might do.

The federal court threw out the Baker case. A sophomoric fantasy, no matter how sick, is also free speech and should not draw an automatic prison term.

In California, a group of authors are defending a 15-year-old San Jose boy arrested at his home and convicted of writing a violent poem. Charged with making criminal threats, he was detained for 90 days and expelled from school. Last month [October 2003], the student was supported by writers including novelist J.M. Coetzee, who won this year's [2003] Nobel Prize for literature.

After the controversy, the so-so poem was published in California newspapers with no apparent adverse effect on society. Yet the student was disciplined for making it available in his school.

Overall, speech should be given the benefit of the doubt. It's a protected right, even if found objectionable by overly sensitive or easily alarmed officials.

America doesn't work if its citizens are afraid to speak up, to challenge the status quo, to ask hard questions.

Much of what is said will inevitably cause some to cringe, others to cheer and still others to ball up their fists.

But there is far more damage in stifling speech that is deemed hurtful or unpatriotic than there is in allowing it to flow into the open, where it will either die in the light or thrive on the strength of its reason.