New Yorker: Maybe we should reconsider free speech in the digital age

The New Yorker published a story today titled, “How Social-Media Trolls Turned U.C. Berkeley Into a Free-Speech Circus.” Most of the content is about the battles over free-speech at Berkeley last year, starting with Milo Yiannopolis. Author Andrew Marantz asks law professor Erwin Chemerinsky about the limits of speech and gets an answer he apparently doesn’t like:

Voltaire, anti-Semite and sage of the Enlightenment, is credited with the aphorism “I disapprove of what you say, but I will defend to the death your right to say it.” Chemerinsky, arguably the foremost First Amendment scholar in the country, believes, in the Voltairean tradition, that free speech is the bedrock of a free society. I asked him about the Antifa activists who had vowed to shut down Yiannopoulos’s events by any means necessary. “Violence is never protected by the Constitution,” he said. “And preventing the speech of others, even by using one’s own speech, is called the heckler’s veto, and it is not protected, either.”

After dismissing what he deems bad arguments on the left and right the piece offers a “better” argument for constraining speech.

“No one is disputing how the courts have ruled on this,” john a. powell, a Berkeley law professor with joint appointments in the departments of African-American Studies and Ethnic Studies, told me. “What I’m saying is that courts are often wrong.” Powell is tall, with a relaxed sartorial style, and his manner of speaking is soft and serenely confident. Before he became an academic, he was the national legal director of the A.C.L.U. “I represented the Ku Klux Klan when I was in that job,” he said. “My family was not pleased with me, but I said, ‘Look, they have First Amendment rights, too.’ So it’s not that I don’t understand or care deeply about free speech. But what would it look like if we cared just as deeply about equality? What if we weighed the two as conflicting values, instead of this false formalism where the right to speech is recognized but the harm caused by that speech is not?”…

I asked john powell what he thought about the rhetorical tactic of conflating speech with bodily harm. “Consider the classic liberal justification for free speech,” he said. “ ‘Your right to throw punches ends at the tip of my nose.’ This is taken to mean that speech can never cause any kind of injury. But we have learned a lot about the brain that John Stuart Mill didn’t know. So these students are asking, ‘Given what we now know about stereotype threat and trauma and P.T.S.D., where is the tip of our nose, exactly?’ ”

I’m not sure why john a. powell writes his name in all lowercase letters. Maybe he’s related to In any case, his suggestion that freedom of speech can itself be a form of violence isn’t exactly new territory. The far-left has been claiming this for a while as a justification for their own violent response. In fact, if you were able to probe the reasoning of the Antifa members who broke windows and set fires in Berkeley last year, that’s probably the answer you would get. Here’s something John A. Powell wrote expanding on this topic last September:

We are committed to elevating research and dialogue on how speech can injure. What is sometimes called by the name of speech could actually be called injurious speech acts. There is often an effort to ignore these harms by calling such speech offensive or hateful, but not injurious. Several of our faculty are studying the effects of stress on life outcomes, how the effects of institutionalized racism plays a crucial role in the lifespan of people of color, how trauma and isolation are directly connected to higher suicide rates, earlier deaths, addiction, and illness. All of these issues are deeply intertwined with speech and what is normalized in public discourse and practice—they do not exist on in a place outside of where free speech sits, protected.

The more we recognize that certain kinds of speech can not only offend but can cause mental and physical harm, and that the harm can be lasting, the more we will be able to properly protect the rights of all—not just of people to speak, but also of their very existence and right to survive and thrive. The exact boundaries for doing this may be difficult to determine, but we must not let that be an excuse to not engage.

Granted, Powell is seeking a legal remedy rather than an excuse to throw punches at his opponents but the line between one and the other can be pretty thin. If Powell succeeds in making his point about speech as violence, he’ll also be propping up the arguments in favor of no-platforming by any means necessary. I suspect he knows that but it doesn’t get mentioned in this piece.

Carol Christ, Berkeley’s Chancellor, gets the last word. “Speech is fundamentally different in the digital context,” she said. She added, “I don’t think the law, or the country, has even started to catch up with that yet.” She doesn’t quite spell out what that means but the suggestion is that, at some point, the heckler’s veto really should triumph: “At some point, when some enormous amount of money has been spent, it has to be possible to say, O.K. Enough.”

Of course, the reason the price of conservative speech is so very high in the first place is that elements of the left are threatening violence in response. Why are they doing that? Because they agree with the ideas put forth by John A. Powell in this article, i.e. some speech is already violence. The author of the piece never really gets around to pointing that out.

Jazz Shaw Aug 10, 2022 8:01 AM ET