Free Speech Under Assault

BY GREGG EASTERBROOK
Monday, November 5, 2001 12:01 a.m. EST

In this time of semi-war, is free speech threatened when those who denounce U.S. foreign policy or sympathize with America's adversaries are themselves denounced? Rep. Cynthia McKinney (D., Ga.) complained last week that she was being "attacked for speaking" because she made an overture to a Saudi prince with anti-Israeli politics. Several college instructors around the country have been assailed by editorialists and students for condemning the U.S., reactions Ruth Flowers, an official of the American Association of University Professors, told the Washington Post "harken back to McCarthyism."

Set aside the hypersensitivity of equating mere criticism with the darkness of McCarthyism. What's at work here is fundamental misunderstanding of the First Amendment. It guarantees a right to free speech, but hardly guarantees speech will be without cost.

Consider Robert Jensen, a professor at the University of Texas who calls the U.S. a terrorist nation, asserts that American policy in Afghanistan is a "war of lies" and that a secretive "small elite seeking to extend its power" has tricked the public into supporting apparent anti-terrorism that is actually "the culmination of a decade of U.S. aggression." Mr. Jensen is now extremely unpopular in Texas. There is a letter-writing campaign to get him fired, and he was recently criticized by the president of his own university as a "fountain of undiluted foolishness."

His backers are saying this is an attempt to suppress Mr. Jensen's free speech. In fact, Mr. Jensen continues to speak freely and often. What they really mean is that Mr. Jensen should not have to pay any price for his views. But this misunderstands the nature of the First Amendment. Mr. Jensen's right to his expression--clearly political and protected--is absolute. But there exists no right to exemption from the reaction to what is said.




When the Bill of Rights was enacted, the First Amendment was construed mainly to shield speakers from imprisonment for antigovernment views. That expression could have other costs--denunciation, ostracism, loss of employment--was assumed. Many of the original patriots took enormous risks in the exercise of speech, Patrick Henry being an obvious example. William Blackstone, the English legal theorist closely read by the Framers, argued that the essence of free speech was forbidding prior restraint: Anyone should be able to say anything, but then must live with the aftermath. A citizen should possess "an undoubted right to lay what sentiments he pleases before the public," Blackstone wrote in his "Commentaries"--which James Madison consulted often while working on drafts of the First Amendment wording--but "must take the consequences" for any reaction.
The reaction to free speech, Madison thought, would be part of the mechanism by which society sifted out beliefs. Protected by Madison's amendment, the Ku Klux Klan can spew whatever repugnant drivel its wishes. Society, in turn, shuns KKK members for the repugnant people their free speech exposes them to be. No one expects the KKK to speak without a price; its price is ostracism. Why should repugnant speech on foreign policy or terrorism be any different?

And so, though Robert Jensen has the right to say what he does, his university's president has an equal right to call him a fool. When talk show host Bill Maher says the September terrorists were brave and American pilots are cowardly, his comments fully merit First Amendment protection. But the advertisers who yanked support from his show were also within their rights: That A may speak hardly means B must fund A's speech. (Mr. Maher has since retracted his comments.) Many orchestras are now refusing to perform work by the composer Karlheinz Stockhausen, who called the World Trade Center destruction "the greatest work of art ever" (the only flaw, according to him, was that the victims "hadn't agreed to it"). Mr. Stockhausen is entitled to his bizarre views; to be boycotted is the price he pays.

Similarly when the novelist Barbara Kingsolver says "the American flag stands for intimidation, censorship, violence, bigotry, sexism, homophobia and shoving the Constitution through a paper shredder," or the novelist Arundhati Roy says George W. Bush and Osama bin Laden are "interchangeable," these statements are safeguarded. But readers may fairly respond by declining to buy Ms. Kingsolver's and Ms. Roy's books, and bookstores may fairly respond by declining to stock them. That these authors have a right to their views does not mean publishers and bookstores must promote them. It is censorship if books are seized and burned; it is not censorship if books are tossed into the trash because their authors mock the liberty that made the books possible. Indeed, expressing revulsion at the sight of a Kingsolver book is itself a form of protected speech.

Dilemmas in the relationship between the freedom of speech and the cost of speech are summed up in the case of Richard Berthold, a professor at the University of New Mexico. On Sept. 11, Mr. Berthold twice told classes, "Anyone who would blow up the Pentagon would have my vote." Students have since held rallies against Mr. Berthold, and state leaders called for his dismissal.




As regards speech privilege, Supreme Court precedent is firmly on Mr. Berthold's side. In a 1987 case, Rankin v. McPherson, the court ruled that an employee could not be fired for saying, on hearing of the 1981 assassination attempt against Ronald Reagan, "I hope they get him." This was protected expression, the court found, not a "true threat" of bodily harm. However obnoxious, Mr. Berthold's comment was clearly facetious and not meant as a threat to the lives of Pentagon employees.
But the fact that Mr. Berthold has a First Amendment right to say that he wishes the Pentagon destroyed does not mean such speech comes without cost. Students, administrators and local leaders have a First Amendment right to find his views repulsive. Taxpayers have a First Amendment right to call for his dismissal. (No one has a right to send Mr. Berthold threats, and he has received some; "true threats" are crimes that should be prosecuted.) Writers have a First Amendment right to use Mr. Berthold as an example of the ingrates who benefit from American freedom while disparaging its guardians.

Speech must be free, but cannot be without cost.