politics / democracy

What IS Free Speech, Really? And Why Has it Turned So Destructive?

Unfettered free speech is undermining our society and wrecking our nation

Over the past two years my essays have often touched on the profoundly difficult issue of ‘free speech.’ I’ve referred to it briefly in several articles — but I (like most Americans) always danced around the issue without fully addressing it or even defining it.

However, free speech has become such a huge, problematic issue in today’s America that it cries out for more comprehensive understanding. No more dancing around it or avoiding the totality of the issue. A sincere, in-depth inquiry is called for.

Let’s dig in.

What free speech is not

To begin with, let’s immediately note what free speech is not.

Free speech is not, and can never be, synonymous with ‘anything goes,’ or ‘say/do whatever you want.’ As much as fiery right-wing advocates of free speech would like us to believe that, it’s simply not true. And it never has been.

Fact: No society that’s ever existed has allowed or encouraged total, unlimited freedom of public speech and action, for the simple reason that societies are created to last and to function somewhat smoothly — and total, absolute freedom of speech and action would quickly lead to chaos, blatant public manipulation, and anarchic collapse.

Just recall the common-sense dictum “You can’t falsely yell ‘Fire! Fire!’ in a crowded theater.” Such irresponsible ‘free speech’ would cause intense, unnecessary panic, and people would get elbowed or even trampled as panicky people tried to escape. Someone could easily be hurt — or even die.

Thus, we can immediately dispense with the foolishness that equates free speech with ‘anything goes’ or ‘say/do whatever you want.’ Equally foolish — and politically and socially dangerous — is the ultra-partisan approach to free speech, which appropriates the ‘anything goes’ version of free speech for their own loyal partisans — but then turns around and strenuously tries to cancel that same right for others, such as a competing political party or any opposition group.

We see and hear this partisan, super-hypocritical approach to free speech everywhere in our society today — and it’s become a hugely contentious and inflammatory issue.

For instance, many Democrats and social media titans have been trying to corral and control some of the hate/violence/sedition-promoting speech rampant now on the Internet (mainly emanating from the far right) … which has led many Republicans and Libertarians to cry foul, and to loudly accuse the Democrats and tech giants of censoring and ‘canceling’ conservative voices.

Of course, they invariably gloss over or ignore the many serious dangers posed by hateful, violence-promoting speech.

But we can also easily see their vast hypocrisy at play here … for many of these same ‘freedom-lovers’ are working overtime to limit and suppress the public speech and actions of liberals, Blacks, women, immigrants, LGBTQ+ folks, voters, and other groups.

It’s enough to make any sane, fairly mature person and responsible citizen want to pull their hair out! This highly problematic mindset is spreading fast — and spinning out of control.

Frighteningly, we’re not dealing with just ‘occasional’ free speech issues anymore. No, the entire free speech arena is getting way out of hand — and really dangerous. Now we’re talking about freedom itself — vs. free-speech-’justified’ UNfreedom and oppression. This super-hypocritical notion of ‘total free speech for me and mine — but censorship and suppression for you and yours’ is the exact stuff fascism, oppression, and tyranny are made of.

Yet it’s all presented in the seemingly reasonable (dis)guise of ‘free speech.’

What does our Constitution say about free speech?

Since our nation has been SO remiss at defining free speech and communicating its true meaning to the public, we are now ‘stuck’ in an endless and vicious public argument about it — and in a morass of related sociopolitical problems that seem to grow worse by the day.

So it truly falls on us, as U.S. citizens, to grapple with this issue — and get a practical handle on it — in all its various permutations.

To start, therefore, we should look to our primary foundational document: our Constitution. And there, in the First Amendment, it says that “Congress shall make no law … abridging freedom of speech, or of the press.” This has always meant (or been interpreted to mean) that the Federal government is not allowed to create laws which would keep citizens from speaking freely or writing about the government.

It is a firm restriction placed on the Federal government (but not private entities or companies) that protects our citizens from government censorship or reprisals. Specifically, it means that our government cannot silence or prosecute anyone for their public speech or writing, as long as these activities take place within certain limits.

Ah, limits. Therein lies the rub: What are the limits? And how are they to be enforced?

This is, and has always been, a tremendously difficult issue to resolve. Our federal courts have struggled with defining ‘free speech’ and its limits for centuries now. Clearly, it would be a difficult issue for any society — especially one which claims to guarantee political freedom for its citizens.

But as noted earlier, NO society anywhere has ever allowed utterly free, all-inclusive ‘anything goes’ speech — because in every society there are criminals, renegades, sociopaths, narcissists, and all manner of bad actors who have no problem at all with saying and doing nasty, nefarious things that result in great harm or even death for some of their fellow citizens.

Clearly, then, our ongoing free speech issues revolve largely around balancing two equally important social ‘goods’: the protection of individual rights and freedom and the acceptance of rules and limits designed to preserve our society and protect citizens’ well-being or even their very lives.

‘Freedom for’ versus ‘freedom from’

And this vital balancing act propels us into examining another whole dimension of freedom: what I call ‘freedom for’ versus ‘freedom from’ — as in, freedom for compassion, sharing, respect, and community vs. freedom from tyranny, censorship, unwarranted interference, etc. Freedom for is concerned with what we want and seek to create, while freedom from is all about what we fear or wish to avoid.

For example: Today many extreme free speech advocates are also stridently anti-government, and thus focus exclusively on freedom from any interference or control, and resist any and all governmental authority.

To me, this absolutist approach to free speech is similar to full-blown adolescent rebellion against parental authority — and is ultimately equally immature — for it totally ignores everything else, including our crucial ‘social contract,’ household/societal rules, legal restrictions, interpersonal caring, etc.

But don’t get me wrong: ‘Freedom from’ is important, and in fact is crucial to the ongoing support of individual freedom. (It was the original impetus for the American Revolution.) But it is not enough, by itself — not nearly enough — to nurture and sustain a society. It’s only half the picture, at best.

The other half of the picture, which is just as crucial, is the freedom for active engagement, empathic relating, sharing with others, accepting shared rules and limits — including on free speech — and embracing the various civic responsibilities that accompany citizenship.

To me, American society seems terribly imbalanced — because it’s lopsidedly focused on ‘freedom from,’ and is quite negligent regarding social cohesion and public understanding and expression of ‘freedom for’. A sad and maddening example is the gradual disappearance of Civics and Civics classes — which should really be required for every citizen — from our schools.

Somehow, we (stupidly) expect Americans to grow up to be effective, participating citizens — without ever teaching young adults about how our government actually works, or what all the varied responsibilities of citizenship really are.

Apparently, we believe that people somehow absorb this vital information by osmosis from those around them — but in fact, this isn’t happening, and most Americans are astoundingly ignorant about our government and the duties of citizenship. We know about the personal perks of citizenship — i.e. what’s in it for us — but not much at all about the accompanying responsibilities.

A witches’ brew of social irresponsibility and selfishness

At this point, it must also be noted: This sort of self-absorption is also exacerbated by the intensely consumerist focus of our society. Everything, everywhere, is always focused on what I can get or grab, including money, new products, flashy clothes, fancy cars, trendy foods, the latest smartphone, a fabulous new house, a ‘hot’ partner, etc.

In our current society it’s all about me and my desires, all the time. But it’s becoming abundantly clear that this is no way to sustain a workable society — for any society organized along these lines will eventually collapse or self-destruct.

But since this essay is not an exploration of our manic consumerism, suffice it to say that what we should be doing to counteract the negative effects of runaway consumerism is to ‘double down’ on citizen education and civics — but instead, being such dedicated individualists and hedonists, we’ve been doing the exact opposite, and letting knowledge about our government and citizenship lapse into almost total non-existence. And this has had a terrible and massively negative effect on our society — and on our citizens’ ability to comprehend and deal with emerging, difficult sociopolitical realities.

Like ‘free speech.’

Then, into this witches’ brew of social irresponsibility and selfishness, let’s toss: Voila! the Internet and social media, and the newfound ability for anyone with a computer or smartphone to both access and broadcast information from and to people all across the planet.

At first this amazing technological marvel seemed quite … well, marvelous. It held the promise of encouraging democracy, bridging the gaps between different cultures, and bringing people together. And it truly can and DOES work that way, to some extent.

Unfortunately, though, its positive effects now seem like a very minor part of the Internet’s wild success and growth. The much more potent aspect of its success is the myriad destructive ways it is being abused and misused. And you guessed it: Most of the frenetic abuse and misuse happens under the deceptive, manipulative banner of ‘free speech,’ of course!

But exactly how is the Internet being abused and grossly misused? And what role does free speech play in all this abuse?

Clearly, the rise and dominance of social media has had a huge impact. But instead of helping people be more open-minded, knowledgeable, and empathetic, for the most part social media sites have been pushing people into rigid, like-minded ‘in groups’ where everyone sees the same slanted information. Worse, these sites even subtly encourage the vilification of other ‘opposing’ or different groups as weird, evil, crazy, unpatriotic, or even traitorous.

Most Americans just can’t handle free speech

Here’s my unfortunate societal ‘diagnosis’: Most Americans want and demand freedom of speech, but very few know what it really means or requires — or how to handle this potent freedom. Our current situation reminds me of the famous scene in the film “A Few Good Men” where Jack Nicholson’s arrogant Colonel snarls at the court “You can’t handle the truth!”

But in our case, I’d simply observe: Many people in our society just can’t handle freedom of speech intelligently and responsibly. Instead, what’s been emerging (as I’ve written about extensively) is a massive deluge of lies, hate, disinformation, devious manipulation, partisan ‘group-think’, and overt bigotry and racism — along with an astounding surge of gullibility, paranoia, and public bullying.

It’s not a pretty picture. In fact, it’s quite grim. Rather than fostering unity, sanity, and social progress, social media and the Internet have primarily been doing the opposite, and keep fostering hate, divisiveness, and regressive, antisocial attitudes and actions.

Which, of course, brings us right back to the inherently problematic nature of free speech, and the supreme difficulty of finding a balance between individual rights and self-expression, and the ‘rights’ and needs of society as a whole. All along, a crucial part of this balance has been the existence of necessary rules and limits that help delineate what is, or is not, allowable behavior and speech.

What is NOT allowable free speech?

For example, a concise and helpful web page devoted to free speech issues lists nine items or actions that are not considered allowable free speech. Types of speech that aren’t protected include:

• Incitement to imminent lawless action
• Defamation
• True threats
• Fighting words
• Perjury
• Blackmail
• Solicitations to commit crimes
• Child pornography
• Obscenity (defined by community-based standards)

This is just a baseline list of common examples, not an exhaustive listing. But the main takeaway is that there are many instances in which speech is definitely not ‘free’ or ‘anything goes’ — including all instances of inciting violence, “lawless action,” or criminal behavior. This makes perfect sense, since democratic or semi-democratic societies are duty-bound to protect their citizens and preserve the laws and overall ‘social contract’ that bind a society together.

Of course, free speech laws are all intended to ensure that citizens can express and “seek redress for” their grievances when a society doesn’t protect them or their rights, or live up to those requirements. Yet in order for this legal/political framework to function well — and for society to even survive — there must also be formalized limits and exceptions to ‘anything goes’ freedom of speech.

And crucially, with these formalized limits come firm legal consequences, and sometimes severe punishment as well. Otherwise, the whole legal and political edifice would crash and burn under the horrendous social burden of constant lying, partisan scheming, bullying, deviousness, conspiracy, etc. (And we’ve been watching this exact process unfolding right before our eyes over the past eight years.)

Let’s briefly sum up. ‘Free speech’ is protected speech, but it is not and never has been ‘anything goes’ speech. The right to free speech is extensive, but not all-inclusive; there are some well-defined and also some vaguely-defined limits, which allow for the legal prosecution of individuals who flaunt their personal freedom and ignore these limits.

And in today’s U.S.A., the balance has shifted very far towards protecting individual freedom and autonomy — and away from protecting our society and its moral and legal framework.

Thus individualism and self-centeredness are running amok … while our society and its foundations are increasingly and rapidly collapsing. We can see this distressing pattern all around us, but I’d like to focus in on two very different, but equally pernicious, examples.

The horrific ‘Citizens United’ decision

The first example is the Supreme Court’s profoundly wrong-headed decision in the Citizens United case (2010). I see this decision as a bare-knuckles frontal assault on our semi-democracy — yet it was all supposedly in support of ‘free speech’ and democracy!

The problem is, the court interpreted free speech to include almost all political campaign spending, and thus the court decided that ANY limits imposed on corporate campaign donations would violate their ‘free speech’ rights! Almost everything that’s wrong with our current political scene is neatly encapsulated in this single terrible decision.

When corporate money, and the ability to spend it freely to influence or in effect buy an election, is seen as a protected form of free speech … that may well be the death knell of any workable democracy or semi-democracy. Instead of power flowing to the people, as it’s supposed to in a democracy, power is increasingly flowing to the very, very wealthy and to corporations and their legions of lobbyists.

This decision gives a new and very perverse twist to the familiar saying “Money talks”! That was certainly NOT the original intention of free speech rights — not at all!

Our response to the January 6 assault on our Capitol

Here’s a second glaring example: The painfully drawn-out and controversial legal/political response to the Jan. 6 assault on our Capitol.

In all of human history, there has probably never been a better documented or more publicly obvious seditious plot against an existing government and its elections than the Jan. 6 uprising. Nevertheless, our free speech laws and precedents lean so heavily in favor of the individual that it is exceedingly difficult to adequately ‘prove’ seditious intent or “incitement to imminent lawless action.”

In fact, the RNC (Republican National Committee) and many GOP politicians have publicly and very loudly asserted that the Capitol assault was a form of protected free speech! According to them, it was just a peaceful gathering of concerned patriots engaging in ‘political dialogue.’ Right! And pigs can fly, and the moon IS made of green cheese!

Sadly, investigators and prosecutors in this ongoing case — by far the largest criminal case in U.S. history — face an extremely high bar to overcome the strong pro-individual bias of our free speech laws. And they face an even higher bar when unbiased application of our existing laws is relentlessly attacked and undermined by prevailing right-wing messaging.

Fact: all the available video, audio, and text evidence points to a massive conspiracy, orchestrated and organized by then-President Trump and a large cabal of top-ranking officials, seditionists, and far-right terrorists. Yet today’s conventional wisdom among Republicans and so-called conservatives — after endless prodding from Fox ‘News’ — embraces totally unfettered free speech, and scorns any hint of controls, rules, or limits as ‘government censorship.’

Even further, these ‘conservatives’ now insist that the active seditionists and insurrectionists who invaded our Capitol are being unfairly targeted and persecuted (not prosecuted) — since they were ‘merely’ expressing their ‘patriotic concerns’ and exercising their free speech rights! Some right-wingers even hope that a re-elected Pres. Trump would pardon all of them en masse.

Free speech IS crucial — but so are clear limits on that freedom

Here’s the crucial point: these dangerous antisocial attitudes constitute further abuse of our free speech ideals. It’s fast becoming obvious that if our society is to survive and thrive, it must have the ability to protect itself and its citizens from unscrupulous bad actors. That is just a simple, basic fact of social and political life.

And as of now our government and our society doesn’t have the ability to defend itself adequately. This has to change.

Conversely, individual freedom and misunderstood ‘freedom of speech’ have gotten so over-emphasized and so out of control, that the public square (literal and virtual) is awash and drowning in the worst, ugliest, most divisive and hateful public speech imaginable.

Free speech has become such a perverse catch-all and potent ‘conservative’ rallying cry — the right has now fully ‘owned’ the free speech issue — that even brazen conspirators plotting to overturn our elections and subvert our government speak and act with the smug confidence that they are unlikely to face serious legal consequences. They may even evade any consequences at all.

Clearly, this is not a sustainable situation for our society. In my opinion, we really must find a way to correct this imbalance, empower our society to apprehend and punish the worst free speech abusers, focus much more on positive ‘freedom for,’ and renew our citizens’ ability to actually be informed, effective, respectful participants in our semi-democracy.

Free speech is definitely a crucial right and a truly great thing — within specific and necessary limits. And to deal with those Americans who constantly transgress those limits, thumb their noses at society, and keep working to ‘cancel’ others’ freedoms or overthrow our government, extremely serious consequences are also a great and necessary thing — if we wish to have and preserve a vital, safe, and self-healing society.