Prof. Jonathan Turley, the J.B. and Maurice C. Shapiro Chair of Public Interest Law, The George Washington University in Washington DC is one of the last intellectually honest liberals in America. An expert on the Constitution and a fierce proponent of open and
unconstrained debate on matters of public policy Turley joins Prof. Alan Dershowitz as a proud and prominent, but now somewhat marginalized member of America’s dying classical liberal intelligentsia.
While Prof. Turley has earned the wrath of “woke” progressives for his commitment to constitutional principles, the one thing that has contributed most to Prof. Turley’s exile to the fringes of 21st century liberalism is his commitment to freedom of speech.
So, it is highly unlikely that his newly released paper for the Harvard Journal of Law & Public Policy, HARM AND HEGEMONY: THE DECLINE OF FREE SPEECH IN THE UNITED STATES, will earn him any plaudits from the “woke” opinion leaders in academia and the media, but conservatives should take notice and thank Prof. Turley for this important contribution to the defense of freedom of speech and freedom of the press.
Turley’s premise for the paper is this:
…the United States is arguably living through one of its most serious anti-free speech periods, and there are signs that the current period could result in lasting damage for free speech due to a rising orthodoxy and intolerance on our campuses and in our public debate. Where fighting for freedom of speech was once a near-universal rallying cry, opposing free speech has now become an article of faith for some in our society. This has led to a rising movement that justifies silencing opposing views, often on the grounds that stopping others from speaking is, in fact, an exercise in free speech. This movement has both public and private components, but it is different from any prior period due to new technological, political, and economic pressures on the exercise of free speech.
Turley further proposes that:
In recent years, various extremist groups have emerged on both ends of the ideological spectrum, from the Boogaloo movement on the far right to the Antifa movement on the far left. However, the greatest threat to free speech today is the growing support for censorship and speech codes in the mainstream of political and academic thought.
To Prof. Turley’s list of enthusiastic censors we would add media companies and the entire “tech stack” as places where long-standing principles of diversity and tolerance of viewpoints have been replaced by increasing rigidity and hegemony.
One of the most useful elements of Turley’s study is the myriad of examples of free speech hypocrisy cited in the footnotes and body of the paper which gives future writers and advocates a readymade list of targets for investigation and attack.
One of my personal favorites is the New York Times apologizing for printing a viewpoint at odds with those of the woke junior staff crybabies in its newsroom. Coming from a newspaper family I asked my newspaper editor mother what she or my grandfather would have done when faced with a junior staff rebellion over a guest editorial, “show them the door” is a short summary of her response.
But this is a scholarly academic paper, not a recitation of the censor’s greatest hits, and Prof. Turley’s masterful examination of the intellectual underpinnings of our constitutional concept of freedom of speech is an excellent primer for those who are looking for academic and legal authorities to support pro-free speech public policies.
The examination of John Stuart Mill’s concept of societal harm as the limit on freedom of speech (or freedom in general) is also useful for its insight into the intellectual dishonesty of the Left on the topic, but conservative speech limiters are not let off the hook.
Another very useful and timely part of Prof. Turley’s paper is its examination of the history of sedition legislation and prosecutions. Turley writes in upholding the conviction of socialist leader Eugene V. Debs for sedition the Supreme Court upheld the conviction of Debs for speech that was the very essence of the First Amendment.
Debs merely gave a speech opposing the United States entry into World War I. Before the jury, Debs refused to back down in his exercise of free speech and reaffirmed his opposition to “the present government” and “social system”:
Your honor, I ask no mercy, I plead for no immunity. I realize that finally the right must prevail. I never more fully comprehended than now the great struggle between the powers of greed on the one hand and upon the other the rising hosts of freedom. I can see the dawn of a better day of humanity. The people are awakening. In due course of time they will come into their own.
Liberal icon Justice Oliver Wendell Holmes, writing for a unanimous Court, ruled for the government, stating that these words had the “natural tendency and reasonably probable effect” of deterring people from supporting or enlisting in the war. It was one of the lowest points in the Supreme Court’s history, wrote Prof. Turley, with the Court yielding to hysteria and government abuse.
Prof. Turley does not really explore whether today’s drive from the Left to limit speech is our institutions yielding “to hysteria and government abuse” or the result of anti-constitutional forces and power-hungry individuals seeking to limit speech to obtain and hold anti-constitutional power, but perhaps that would require a series of value judgements beyond the scope of Prof. Turley’s investigation.
As a free speech absolutist, I recommend HARM AND HEGEMONY: THE DECLINE OF FREE SPEECH IN THE UNITED STATES, as a “must-read and keep” addition to the arsenal of anyone who is serious about defending freedom of speech and thought in today’s hostile political environment.
Prof. Alan Dershowitz
John Stuart Mill
Oliver Wendell Holmes