How Marin County can bounce back

Does Free Speech Have a Future in America?

SUZANNE NOSSEL MAKES THE CASE FOR THE SMART DEFENSE

“When we have done programs on campus, we’ve actually been advised not to use the term free speech in the title of the program. [Students] consider it a conservative, kind of right-leaning cause; they don’t consider it relevant to their social justice goals.”

—SUZANNE NOSSEL

AMID “FAKE NEWS,” CAMPUS

speech codes and conspiracy factories, critical free speech is facing new challenges and can’t necessarily rely on its traditional supporters. Are Americans just done with freedom of speech? From the September 16, 2020, online program “PEN America’s Suzanne Nossel: Defending Free Speech.” SUZANNE NOSSEL CEO, PEN America; Author, Dare to Speak: Defending Free Speech for All JASMIN DARZNIK Author, The Bohemians— Moderator

JAZMIN DARZNIK: As the country juggles numerous domestic crises that tear at our civic fabric, I can’t think of a more timely and important topic to discuss than freedom of speech and a more inclusive public culture. These topics aren’t easy to talk about, and I’m very glad that we have Suzanne here to guide us through some of them.

Let me start out by asking the big question: Why this book now? SUZANNE NOSSEL: It [goes] back to these conversations that we have had on college campuses across the country over the last few years, where we’ve become increasingly concerned about a climate of censoriousness.

We see this in incidents like protests over people like Condoleezza Rice being invited to give commencement speeches and having to pull out because there is such a climate of hostility toward their presence that they can’t even go through with the appearance and deliver a message to students. Students calling for trigger warnings on syllabuses that alert them to material that may be uncomfortable or induce some kind of trauma. Safe spaces, the idea that some students have advocated that the campus should be an environment where people are protected from ideas that may make them feel—they would call it unsafe, I would think of it more as uneasy or put into an awkward position or uncomfortable.

We began to hear more and more about those arguments being made on campus and clashes that were happening at places like Yale and the University of Missouri over these issues. As we went around,

Above: Pro- and anti-Trump demonstrators hold signs on the sidewalk outside Sproul Plaza at UC Berkeley in 2017. (Photo by Pax Ahimsa Gethen.) Right: The cover of Jeanine Cummins’ novel American Dirt, which became embroiled in discussions about alleged cultural appropriation.

our instinctive response as a free speech organization was, this is pretty outrageous. You know, these students are turning their backs on the very role of a university as an environment for the free flow of ideas. College is supposed to be the place where your notions get tested. You’re staying up all night debating with your dorm mates or in the college dining hall with that give and take, confronting people from all sorts of backgrounds and ideologies. Why are these students backing away from that and regarding it as something uncomfortable, cringe inducing, as opposed to a robust, energizing part of their education?

So that was our instinctive response. But then as we went around to college campuses and did workshops at places like Middlebury and UC Berkeley, where there have been major outbreaks of violence, and those two instances UVA, Charlottesville, we heard something pretty different that made a big impression on me, which is really that for most of these students who resort to calls for bans or punishments on speech, their real objective is not to curtail freedom of expression.

That’s not what they’re after. What they’re after is a more equal, inclusive, anti-racist and just society. They’re struggling with how to bring that about. How does the campus become a truly welcoming environment for students from all backgrounds? How do students from nontraditional backgrounds, whether racial background, socioeconomic background and international background, make their way in institutions that were made for white cisgender men many, many decades ago?

I think that drive for inclusivity is admirable to me. It’s sort of the next phase of the Civil Rights Movement. Now as a society we’re seized with this. It’s what’s driving the protests in the streets of our cities, but it can sometimes cross over into censoriousness. What we found is that students kind of barely know where those boundaries lie, and they are not focused on the free speech implications of, for example, a call to discipline a professor who may say something offensive in class. They haven’t thought through the risks of that—the fact that that power may someday be turned against somebody that they agree with, or be used to silence their own protest or demonstration on campus.

Those issues really are a microcosm of the struggle we’re having as a society with how to reconcile the essential drive toward the next phases of equity and inclusion for our society as a whole, with the robust protections for free speech that are enshrined in the Constitution and that in my view are a really essential part of who we are as a country and as a people. DARZNIK: I’m really intrigued by the structure of the book [Dare to Speak: Defending Free Speech for All]. My expectation might be that I would enter into the book with an examination of the legal history of

the First Amendment, but it’s not organized like that. It’s organized in a way that I appreciate very much as someone who’s a citizen and active, sort of curious about what I might do and how I might enter into a more inclusive and yet robust exchange of ideas. So could you tell us a little bit about how you chose to structure it the way you did? NOSSEL: I do lay out in the book what the legal underpinnings are of free speech protections in this country, what the exceptions are to the First Amendment, because I think that’s important to know as one engages in these debates, but actually it comes toward the end of the book.

I divide the book into four sections of principles to consider when you’re a speaker: when you’re voicing your own views and opinions, when you’re a listener, when you’re considering free speech issues, and when you’re debating free speech policy questions. I offer a set of considerations for each scenario. I began with the speaker, and the very first principle is about being conscientious with language, because I was thinking about that target audience of people who have become alienated and skeptical of the idea of free speech and who are not interested in reading a treatise on Oliver Wendell Holmes and the doctrine of incitement to imminent violence and what it means to shout fire in a crowded theater.

To young people, particularly today, that can seem quite remote. When we have done programs on campus, we’ve actually been

“Students . . . are not focused on the free speech implications of [curbing speech]. They haven’t thought through the risks of that—the fact that that power may someday be turned against somebody that they agree with, or be used to silence their own protest or demonstration. ”

Above: Nossel and Darznik in their online Commonwealth Club conversation.

advised not to use the term free speech in the title of the program. “Don’t call it free speech, because they won’t show up.” They consider it a conservative, kind of right-leaning cause; they don’t consider it relevant to their social justice goals.

I wanted to frame this in a way that would speak to those who harbor those doubts. [We do that by] talking about conscientiousness with language, and the idea that as a speaker you have an obligation to think about who’s in your audience. It’s sort of a funny situation talking with you right now, because the fact is I have no idea who’s in our audience. We can’t see our audience. We don’t know how old are people, what are the races or ethnicities of people? Are there men and women? We know none of that. But what I urge in the book is, whether you’re posting on social media or writing articles or speaking in front of a classroom or on television, to try to give some thought to the breadth of people that might be in your audience and how they may react to what you say.

So if you’re talking about a particular community disability, understand how they like to refer to themselves and what kinds of metaphors or images may be considered objectionable or retrograde. I talk about the whole progression of how we talk about people with mental disabilities and this kind of euphemism treadmill, where over time different terms [are used]. Years ago terms like imbecile become very offensive and freighted with negative associations. And then they get replaced with terms that are more neutral, that sometimes in some instances themselves over time kind of take on those negative connotations. But it’s something that as speakers in a world where our speech is so often decontextualized, we’re communicating via the internet and people may not know who’s doing the speaking, they may not see the quote in any kind of context in terms of the give and take in which whatever you’ve said may have come up and people can reach snap judgments. So it’s important to have that conscientiousness. That’s where I began the book. DARZNIK: As a writer, I feel like I belong to a tribe that’s really attentive to language. But I have a fear myself—and I know that it exists in many of my writer colleagues and friends and students—that we have become perhaps over-conscientious about our language.

I’m thinking about instances like the debacle around [Jeanine Cummins’ novel] American Dirt. That was just one instance that I suppose you could construe as a kind of silencing, when a writer is essentially shoved off into kind of oblivion because her identity in some way is objectionable, that we don’t think that it’s a right person to tell the story. I wonder what you made of that episode and of episodes like it, and the lessons that we as writers and maybe also by extension publishers ought to extract from these moments where there’s a real calling out or canceling of a writer for one reason or another. NOSSEL: The American Dirt incident happened after the book had gone to press. But I do talk about the issue that it raises of what people call cultural appropriation or the idea that a writer who does not themself come from a particular background decides to tell a story of people from that background—in the case of American Dirt, a white writer with a Puerto Rican grandmother, but who told a story about an undocumented Mexican immigrant. It was a major book, she had all sorts of blurbers, it was a big release. And she was hammered by Latinx writers who argued that she had no business writing the story and in some instances faulted the way that she portrayed her characters and the depiction that she gave of the culture that she was writing about. She responded that she had done a great deal of research. There were many people who stood by the book as just a riveting page-turner and a very moving account of a community and an experience that doesn’t get enough attention.

To me, the issues that raised are really inextricably linked with the barriers that have faced writers of color, as they have sought opportunities to be published and gain the support of the publishing and entertainment industries for their stories. Historically if you look, and there are some tabulations of this, although they’re really incomplete in the children’s book area, there is an annual report that is published about how many stories there are by authors of color about characters of color. The numbers are beginning to climb up, but they have lagged very far behind the representation of these communities within American society. So there is a systemic pattern of exclusion that has affected these writers.

I think it’s a very legitimate complaint. I also view it as a free expression issue. The obstacles that stand in the way of people from particular backgrounds, being able to participate fully in our discourse—whether that’s in journalism, in book publishing, in magazine writing, in entertainment—those all stand in the way of free expression. If we believe that free expression ought to be an open marketplace of ideas, that means

everybody has a role, an opportunity to play into that. If people do not, or their opportunities are impaired in some way, that to me is a constraint on free expression.

So I think that’s a major issue that the publishing industry must confront, and it’s manifesting itself in this kind of resentment toward white writers—or you know, it’s not always even white writers, there are other types of cultural appropriation that people accuse writers of porting over into a culture not their own.

My view is, ultimately, writers need to be able to tell whatever stories they want to. The whole premise of literature and the power of literature is that it’s a portal by which you can enter into a life that’s not your own and sort of inhabit a world that you would never personally experience and be inside the head of someone who is fundamentally different from you. The writer is the emissary, the conduit. To close off the writer’s freedom of imagination and say, “You’re an IranianAmerican writer. You may only tell the story of Iranian-American woman immigrants. You can’t tell the story of a man. You can’t tell the story of somebody who’s born here in the United States. You can’t set a story in France or South Africa”—I think would be incredibly inhibiting and just impoverish the range of stories available to all of us and make the life of a writer much less interesting and free and deter people from entering into the endeavor.

So I think that’s very destructive. But I think those calls come from a place of great frustration in terms of the failure to confront these barriers. Until there is a more systemic effort to address them, I think these resentments are going persist and these debates are going to protract. DARZNIK: As with every difficult subject, these debates are not new. They’ve just reached a fever pitch it seems in the current climate. That brings me then to think about the section of the book where you’re examining the principles of listening and thinking about what constraints perhaps there ought to be on free speech or free expression in instances where it’s used or usurped to advance hate speech, or in fact justify behavior or conduct that is hurtful. How do we draw that line between offering this expansive, robust exchange of ideas and protecting groups that have been historically perhaps particularly vulnerable to these abuses? NOSSEL: The United States has the most protective standard for hate speech of pretty much any jurisdiction in the world. In Europe and in Canada they have banned things like Holocaust denial, the idea of incitement to discrimination. So language that is denigrating against people based on a group identity can be banned and punished by the government. Here under the First Amendment, that’s not allowed. That doesn’t mean hate speech should be considered acceptable or permissible by any means.

I think one of the reasons we are in such a fraught moment in terms of free speech is that over the last four years, there has been an erosion of the taboos that used to play some role—never perfect—in protecting against hateful speech. We’ve seen kind of an endorsement of hateful speech at the highest levels of our government, from the president, who demeans immigrants, women, people of color, people on the basis of religion, even disability. What that has done in society I think is make a lot of us feel, myself included, that we need to do more to protect people from the impact of this hateful speech that is being spewed from people in positions of authority. So the impulse to then police smaller spaces, whether it’s a campus, a classroom, a magazine that you’re part of, an organization, and be quite intolerant of noxious speech in those contexts intensifies. It’s an effort to sort of correct against something that is seen as harmful and spreading throughout our society as a whole.

Now, in terms of dealing with hate speech, I think it’s a serious issue and I devote a whole chapter to the harms of [hate] speech, because I think it is the case that free speech defenders historically have been a bit reluctant to fully acknowledge those harms for fear that doing so would open the door to censorship and constraints on speech. I think that’s the wrong attitude. I think as free speech defenders, we have to own up to the fact that particularly where hateful speech and messages are pervasive—so somebody who’s lived their whole life being on the receiving end of racial slurs or being treated as if they’re the hired help at a setting where they’ve come as a student or as a professor or been subject to stereotypes—can be incredibly damaging psychologically, to academic performance and even physiologically. So I think we have to come to grips with that. I call on free speech defenders to fight against hateful speech and hate crimes. But what I don’t subscribe to is the idea that we’d be better off if we gave our government greater leeway to

ban and punish hateful speech.

I feel like this administration is the perfect illustration of that, because if they weren’t constrained by the First Amendment and Donald Trump had the leeway to punish hateful speech, what is his idea of hateful speech? It’s criticism of him. Affording him that authority would be in my mind incredibly dangerous. People may have a vision of some magical version of a combination of Ruth Bader Ginsburg and Thurgood Marshall and Barack Obama who would adjudicate where the boundary lies in terms of what is hateful speech. But the reality is it would be courts and judges and prosecutors, and affording them that discretion could be incredibly confining and open the door to misuse.

In my view, the greater the power that government has to police speech, the more likely that they will use it to serve their own prerogative. So I’m just very wary of that solution, but I do acknowledge that hate speech poses, a serious problem. DARZNIK: It was inevitable we were going

Nossel says that social media platforms have usurped the roles traditionally played by media and in-person discussion of issues. (Photo by LoboStudioHamburg.)

to talk about the administration of the First Amendment. It applies to government intervention, not private platforms like Facebook or Twitter. How do we combat this often purposeful misunderstanding, which is effectively being claimed by the right wing, to obscure these lines? The right to free speech, it seems to me, the very definition of it seems imperiled. NOSSEL: Yeah. There are really complex issues about how these platforms now hold dominion over such large swaths of our discourse. They roll up into one the functions that used to be performed by newspapers, magazines, town meetings, family photo albums, coffee klatches, telephone calls. All these things that we used to do and vehicles for expression now have been kind of bound together in Facebook and Twitter and a few other platforms. Overwhelmingly [people], especially young people, are getting nearly all of their news through those platforms.

We’ve seen the weaponization of speech. In many different categories, whether it’s terrorist recruitment, conspiracy theories like QAnon spreading fake news and false information about COVID-19 quackery, spurious cures—in terms of the election, the level of disinformation that is escalating right now poses a very direct threat to our democracy.

I see a sort of a sowing of mistrust in society writ large. The idea that free speech or concerns are implicated in relation to these platforms is absolutely legitimate. And you’re right, they are not subject to the First Amendment that protects us only against encroachments on free speech by government. While Americans are used to reflectively thinking of the First Amendment, the notion there is that we can rely on lawyers and courts to figure out this stuff for us. Yet with so many of the controversies that we’re talking about right now, whether a fake or doctored video of Nancy Pelosi or Joe Biden should be taken off Facebook, or whether a student should be punished for something that they say in class or a poster that they put up in the dorm room that is offensive—these are issues that don’t implicate government action at all, and yet they are governing what can and can’t be said in society, what book you can publish. That doesn’t involve a state action.

So the First Amendment doesn’t have any answers for us. That’s why I sort of issued this call to action for us as citizens. The courts have their part, and I don’t want to underplay that because there are issues—this John Bolton book is one that has arisen just today, where we need to guard against government overreach and muzzling speech. But that’s not going to be enough to keep our free speech protections and civic discourse robust and open. We have to take action as individuals. DARZNIK: I have a question from one of the viewers, which is whether conservative critics have a point on cancel culture. What’s your opinion of that? NOSSEL: I think the term cancel culture is used so elastically as to be almost useless. It’s everything [from] a Harvey Weinstein or Bill Cosby, where I think, yeah, most of us could agree these people have committed egregious criminal conduct and it’s perfectly fair perhaps not to want to associate with them or watch their movies or television shows. On the flip side, somebody who makes a bad editorial decision, puts out an ill-considered tweet, says something questionable in the classroom and is confronted with calls for discipline, removal, firing. There’s an incident at Skidmore College this week where a professor attended a rally on behalf of the police. So that it’s not even clear that he was a participant in the rally. He may have just been sort of an onlooker checking out what was going on, but he was seen there and there’s now a movement to boycott his classes. And there’ve been calls by students to get him fired from his position at the university. The university sort of issued this rather tepid statement in response, which we criticized. It comes to that kind of thing where to me cancel culture really can go too far.

In the book, I have a whole chapter devoted to sort of conscionable call outs, because I think there is a place absolutely for rejecting and speaking out against noxious expression. We talked a few minutes ago about hateful speech, and when someone uses a racial slur or says something that is degrading, it is important to speak out. It’s important that people who are victimized by that feel the sense of support. It’s important that the speaker hear back that this is not acceptable, that people are not just going to be silent and look the other way. But the right way to do it depends on the circumstances. There are some circumstances where you could approach someone privately to say, “Hey, you know, your phrasing in the email was sort of problematic. It might be seen as dismissive to a women or to a particular community. You might want to consider rewording that,” or, “Your last tweet really rubbed me the wrong way, and here’s why.” If you think the person might be receptive, if they’re not a serial offender, if you believe the offense was unintentional, that call-in can be a much more effective, less confrontational way to respond that doesn’t put the person into a defensive crouch.

There are other situations where I think a public call-out is warranted and where even canceling somebody is warranted, but we’ve gotten into kind of a climate where in the minds of some, the answer to all noxious speech is that the person becomes sort of permanently untouchable. Even if the offense is relatively minor, it can carry this lasting stigma. It’s not like you’re canceled for six months and then it expires and you’re back in good graces. It can be sometimes difficult to work your way back.