Whose Free Speech?

Whose Free Speech?

Free speech, like any freedom struggle, is about power.

This article is one in a series of arguments on free speech in our summer issue.

The raging debates over free speech on the left have contributed to a liberal panic around “cancel culture.” In this debate, it is crucial to recognize that the rejection of the views of some defenders of free speech is not the same as a rejection of the value of free speech. Young activists today do not disdain free speech; they hold different views about what constitutes a genuine threat to speech, as well as how essential it is to understand speech in terms of power.

Many of those who see themselves as guardians of free speech contend that the most important, maybe the only important, dimension of the problem is the government threat to speech: state censorship, whether it manifests through laws punishing people for espousing certain political or religious views, the refusal to issue protest permits to certain groups, or any other guise. Because power inevitably corrupts, one version of the argument goes, the government must not hold the power to favor certain views over others. I have never contested this danger or the utility of the First Amendment, nor do I believe that there are many who would.

The state-focused description of threats to speech is not wrong, but it is incomplete. Left critiques of free speech politics center instead on the recognition that the ability to speak “freely” in the United States today depends on power—and the power to curb speech in this country is overwhelmingly private. Recently, private companies’ power to control the speech capacity of the government itself was laid bare when Twitter, Facebook, Instagram, Snapchat, Twitch, and YouTube, along with various platforms supporting online payments including Apple, Google, and Amazon, decided to suspend or otherwise obstruct President Trump’s social media presence.

Trump’s muzzling invites us to consider the vast range of private choices and coercions that affect the realm of speech. Online and offline, deep and widespread inequality has always conditioned people’s ability to speak. Much like the country’s other markets, the marketplace of ideas is formally open—and spectacularly unregulated—but has historically privileged and protected wealthy, white men. It has allowed all manner of racial and gendered prejudices to play out, and it is shaped by a vast range of private coercions, legal and illegal.

It chills speech, that is, to wake during the night to find a cross burning on your lawn; to know your neighbor may dispatch the police on you for assault if you ask her to leash her dog; to know you might be shot by the police, or the zealous neighborhood watch volunteer, for one false word or no word at all, just for looking out of place to the white gaze. It chills speech to know you might lose your family or your job if you were to insist your relative or boss not touch your body without your consent. These examples are not archaic; they all occurred in 2020. Each put people’s lives, safety, and employment at risk, and speech was perhaps a secondary concern to survival. For those who believe the right to speech should be universal, however, it is imperative to recognize that this kind of violence also threatens individuals’ ability to speak freely.

Today, the contest over speech is tied closely to the broader struggle for justice in America. In particular, the rapid changes in the national conversation about racial justice have come about in large part because communities long harassed into silence have used new opportunities to use speech to build power. The rise of social media allowed more people to speak and reach an audience than ever before (though that promise has been overshadowed by the consolidation of a vast new private surveillance infrastructure).

This shift has also produced misunderstandings and conflicts about how people value freedom of speech. Many increasingly view with suspicion ideas about free speech that lack an analysis of power, especially colorblind First Amendment advocacy. They know that valuing all speech equally is as likely to build a universe of lies as truth. When traditionalists suggest that the First Amendment, as currently interpreted, adequately protects speech, it sounds like ignorance about the many obstacles minority groups still face in speaking freely.

Today’s left movements are thinking hard about the complex factors that shape the relationship between speech and social justice. Far from unconcerned with freedom of speech, they are determined to exercise these freedoms to further their cause. They are naming the power relations in which speech is embedded, and thereby liberating more speech. They are also asking important questions about how to better protect the people who laws have traditionally left behind. They know that the first obstacle to affirming speech rights against the state is one’s ability to file an expensive, arduous lawsuit, which is hard to contemplate when you face the loss of housing, healthcare, or loved ones. They are also aware that the First Amendment does not cover a range of state actions that chill speech, such as the disparate policing of racial justice and white supremacist protests.

It does not diminish the First Amendment to ask how we might further protect speech using the law. As legal scholar Genevieve Lakier points out in a new paper, the First Amendment has never been the only legal protection for speech; additional laws protect speech in the workplace, for example, and make it a crime to intimidate people into voting a certain a way, or not at all. We should be thinking about how to draw on such models to better protect free speech, as well as striving to become more sensitive to the various conditions that suppress speech.

Free speech, like any freedom struggle, is about power. The time is past when one can enjoy being an expert on speech without considering the effects of power and privilege, including one’s own. Moreover, it is naïve for liberals to ignore the way the right has weaponized a narrative about a “woke” left that opposes free speech—a tactic aimed at silencing the growing voice of social movements. For anyone who truly believes that free speech is important to a democratic society, it should be energizing and encouraging to watch the conversation about free speech itself open up. A plurality of diverse voices with new ideas are working to build a world that comes closer to the ideal of free expression for all.

K-Sue Park is Associate Professor of Law at the Georgetown University Law Center, where she teaches property law and a seminar on land, dispossession, and displacement. She is working on a book about the history of foreclosure.