Journalist P.E. Moskowitz‘s latest book “The Case Against Free Speech” is provocatively titled, but does a good job of persuading why we ought to regard free speech more like magical unicorn horns: as something that does not exist, has never existed, and fundamentally can never exist in the world as currently constituted.
But the author goes further, and they demonstrate how those who fight in the name of “free speech” end up working on behalf of fascists, transphobes, misogynists, and petro-billionaires—to extend the analogy, actively aiding rhinoceros poachers on behalf of defending the principle that magical unicorn horns should exist.
For liberals, this is a hard teaching. Who can accept it? But from a jumping-off point of the ultimately deadly white supremacist “Unite the Right” rally in Charlottesville in 2017, Moskowitz thoroughly disabuses readers of many of our common-held notions.
For U.S. history, I’m a little ashamed to admit that I didn’t realize the Bill of Rights wasn’t even supposed to extend to people in the particular states till 1868 when the 14th Amendment’s establishment clause provided that justification. This was especially important for all of the restrictions around what free people could say about slavery. So Missouri prohibiting abolitionist discussion in 1837 was perfectly Constitutional, as was Louisiana banning white strangers from talking to enslaved people. The publisher of the abolitionist paper The Liberator was sued for libel for criticizing a Baltimore human trafficker, nearly lynched in Boston, and the Georgia legislature later put the modern equivalent of a $150,000 bounty on his head to have him kidnapped and brought to the South for trial.
I wasn’t at all aware that it took till Gitlow v. New York (1925) for the First Amendment to apply to individual states, and that alone radically altered how I thought of it in the context of our sense of American self.
I was, however, previously aware of how the federal government had itself abridged these free speech rights, not a decade after their adoption in the form of John Adams administration’s Alien and Sedition Acts as a way of targeting the French-sympathizing political opponents in Thomas Jefferson’s Democratic-Republican Party. And I was aware of the Comstock Laws that prohibited discussion of contraceptives, orgasms, and hypocritical infidelity by pastors. Those same laws forced Planned Parenthood founder Margaret Sanger to temporarily flee the country in 1914, and they stayed on the books till 1965.
And Moskowitz’s The Case Against Free Speech taught me that Supreme Court Justice Oliver Wendell Holmes’ quote about “not falsely shouting ‘fire’ in a crowded theater” is regarding an anti-World War I protester passing out pamphlets that said men should refuse the draft because it violated the 13th Amendment. In other words, the limits of free speech are to, on Constitutional grounds, make a left-wing case against foreign wars.
Before reading this book, I’d recommend you read Freedom for the Thought We Hate by Anthony Lewis, now deceased. It was recommended to me as a rebuttal of this one, but it doesn’t really hold up in that capacity.
That’s a fallacy of outlook as well as timing. A book written in 2007 might well have had more reason for optimism, but it’s strange that Lewis covers the same history Moskowitz does and comes to so radically different a conclusion than Moskowitz.
The idea that the law is a force for good rather than an expression of power is a curious one, and acknowledging how consistently the people in power have not been forces for good should make it easier for a student of history to be mistrustful of the law and its application.
Lewis concludes that the free press achieved a meaningful victory by uncovering that the Bush administration lied to push the United States into invading Iraq. With benefit of further time, we know there were no actual repercussions for any authority figures in that administration who invented a cause for invasion, killed hundreds of thousands, tortured hundreds, and destabilized an entire region. It’s harder to feel rosy about free speech when liberals fight harder to force eliminationist rhetoric on college students than they ever did to hold accountable those who controlled mass surveillance apparatuses.
The Case Against Free Speech is the better book because it centers actual power relationships rather than abstract ideals. No matter how much I might like to, I can’t control how Mark Zuckerberg is able to interact with his friends and loved ones the way he controls how I do with mine. I can’t force my idiosyncracies onto Jeff Bezos’s eyeballs the way he can do to mine. And while I have just as much of a hypothetical right to leave my job as my boss does to fire me for our political differences, I can’t put him and his family on the verge of living on the streets the way he can do to me.
And while I’m sure Lewis would prefer to believe “the thought we hate” is white supremacy, misogyny, homophobia, transphobia, and antisemitism, there’s never been any evidence this is actually the case. Fred Hampton, Malcolm X, and Martin Luther King Jr. were all assassinated and had been under active surveillance by various law enforcement and domestic intelligence agencies. Strom Thurmond, David Duke, and Richard Spencer have nothing comparable in their histories despite actively seeking to increase violence on, forcibly expel, or exterminate non-white people.
Milo Yiannopoulus is a perfect encapsulation of what the game really is among the right when it comes to free speech and hated speech.
You may remember that Yiannopoulus was running around “triggering snowflakes” by doing stuff like openly targeting trans people for harassment, and engaging in rampant Islamophobia, and grotesque misogyny. He did such things while simultaneously actively working to launder white supremacist movements via Breitbart so they’d be more palatable to the wider media.
Right-wing extremist organizations such as the University of Washington College Republicans stuck by his side through all of this because, they said, they were committed to free speech. Then it came out that he’d made some comments regarding the “arbitrary and oppressive idea of consent” as it applied to children with sufficiently developed genitalia.
Free speech, challenging liberal orthodoxy, upending polite sensibility—but only so long as that’s working to further genocide and harass vulnerable people, not something the billionaire Mercers actually had a problem with like full-throated endorsements of pedophilia.
No one called it new Stalinism or PC culture run amok when folks stopped wanting to book a child sexual assault apologist. It wasn’t “cancel culture” to cancel events scheduled for a person who had supported something so awful.
It crushed Yiannopoulus to his platforms to grift while simultaneously losing his powerful financial backers, which is where these two issues dovetail.
Billionaires have much more power than you or me because money is speech and they can buy communications companies to control them as well as buy advertisements. They can influence politicians— much more than unions because workers don’t get to “opt out” of their surplus-value going to enrich business owners or “opt in” to allow those same business owners to use other money to lobby governments.
And on top of this, billionaires are not influencing according to varied idiosyncrasies like forcing television stations to air video from their wedding reception, painting government buildings pink, or censoring communication that includes the letter “V”. It’s spending all of their wealth to protect and extend power structures that let them gain their wealth in the first place. This is why children dying in camps requires civility but the idea of a wealth tax is revolutionary barbarism: only one is actually a threat to our oligarchs.
Moskowitz’s book, by centering power in the evaluation of speech’s freedom, reframes how someone who supports the ideal of free speech ought to focus themselves.
The American Civil Liberties Union does not have unlimited resources. Every time it throws some of those resources toward Nazis, it comes at the expense of DAPL protestors arrested for standing on their own land, Black Lives Matter organizers personally sued for the actions of anyone in their march, or trans people fired for existing.
Nor do you, with your time, attention, or energy have unlimited resources. Whether it’s tone-policing college students who want to feel safe from physical danger on their own campuses or showing solidarity with white supremacists under the guise of free speech, it’s not a neutral act whatever appeals to neutrality you want to make.
Free speech does not exist, it never has existed, and it probably never can exist under the current system. So if you’re going to go out of your way to advocate for something, the least you can do is come up with a reason for the thing you’re actually advocating for rather than hiding behind a fantasy to avoid acknowledging what you support.