Home » Perspective » Free speech is the heart of democracy. But who decides what speech should be free?

By Michael Blanding, Tufts Now, published on February 25, 2024

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Michael Glennon, professor of constitutional and international law at The Fletcher School, has been troubled by a growing trend to censor speech, from college campuses to social media to the halls of government itself. In a provocative new book, Free Speech and Turbulent Freedom: The Dangerous Allure of Censorship in the Digital Era, he argues that such bans—while often well-meaning—are almost always counterproductive, creating more problems than they solve.

The book’s sweeping argument runs from 19th-century Supreme Court Justice Oliver Wendell Holmes Jr., who set the foundations of First Amendment law, all the way to the most recent social media controversies.

Glennon spoke with Tufts Now about the importance of free speech and why he believes a “marketplace of ideas” is the best antidote to tyranny.

In your introduction, you describe the change you’ve observed in students over the last few years when it comes to free speech. How did that inspire you to write this book?

Students’ attitudes toward free speech have changed dramatically. Nationwide, over half of college students believe that schools shouldn’t allow a speaker on campus who has previously expressed ideas they intensely dislike, and over 30 percent believe it’s acceptable to drown out speakers to prevent them from speaking.

Many of these students think that suppressing free speech is somehow necessary to preserve democracy. I wrote the book to suggest that this view is profoundly and dangerously mistaken.

Freedom of speech is the lifeblood of democracy. They both rest on the same premise: that people are able to sort out for themselves what’s true and what’s false, and that it’s for individuals, not the government, to judge what’s in their own best interests.

You devote the first part of the book to Oliver Wendell Holmes Jr. and his journey into skepticism about universal morality. To whom is that relevant today?

Many of today’s students have a keen thirst for social justice, which I admire. When Holmes was their age, he shared that thirst, dropping out of college to enlist in the Union Army in a war against slavery, in which he was nearly killed several times.

He became very skeptical of people who believe they have unique access to universal, absolute truth, who view their adversaries as evil incarnate. That, he believed, leads ultimately to violence. All of us today need to approach public debate with a bit of humility, recognizing that none of us is infallible and that rigid moral certitude leads down a dangerous path.

You argue that government censorship is wrong and even counterproductive. What are some of the reasons?

We know from centuries of experience, in many countries, that censorship inevitably backfires. It discredits the censors, who are seen as patronizing elites. It demeans listeners who are told they can’t handle the truth. It makes martyrs and heroes out of the censored and drives their speech underground where it’s harder to rebut.

Suffragettes, civil rights leaders, and LGBTQ+ activists all have relied on free speech to get their messages out. Censorship alienates the public, generates distrust, fosters social division, and sparks political instability.

It’s not that some speech isn’t harmful—it’s that trying to suppress it causes greater harm.

Many people would probably be surprised to learn that hate speech such as marching with Nazi paraphernalia or burning a cross at a demonstration deriding Black and Jewish people is protected under the First Amendment. Why is it protected?

Not all hateful speech is protected. Incitement to violence, fighting words, defamation, and true threats are all often hateful yet that speech is not protected. But other hateful speech is protected, for several reasons.

Hatred is a viewpoint. It’s for the individual to think and feel as he or she wishes; it’s only when the individual crosses the line between thought and action to incite violence or defame or threaten someone that the state can intervene.

Hate speech laws are also invariably vague and overbroad, leading to arbitrary and abusive enforcement. In the real world, speech rarely gets punished because it hurts dominant majorities. It gets punished because it hurts disadvantaged minorities.

Many Americans feel it is OK to ban clearly false information online, but you argue that would be a bad idea. Why?

The ultimate problem with banning falsehoods is that to do so you’d need an official Ministry of Truth, which could come up with an endless list of officially banned falsehoods. Not only would that list inevitably be self-serving, but it could be wrong.

Even when it comes to clear falsehoods, there are reasons to leave them up. [Former President Donald] Trump claimed, for example, that the size of the crowd at his inauguration was larger than [former President Barack] Obama’s, which was indisputably false. But the statement had the effect of calling into question not only Trump’s veracity but also his mental soundness, which is important for voters to assess.

You say after Trump’s participation in the January 6 uprising, social media platforms banned him for the wrong reasons. What do you mean?

They were wrong to apply a norm of international human rights law in banning him—a supposed prohibition against “glorifying violence.” That’s a vague, overly broad standard that can pick up everything from praising Medal of Honor winners to producing Top Gun.

We’re dealing here with an American president speaking from the White House to the American people, so I say the proper standard should have been the U.S. First Amendment and whether Trump intended to incite imminent violence and whether that violence was likely. Under that test, I think it’s a close case.

What was wrong with the way the government tried to curb “misinformation” about COVID-19?

Justice Louis Brandeis [who served on the Supreme Court from 1916 to 1939] said that the fitting remedy for evil counsels is good ones.

If someone counsels drinking bleach to cure COVID, the remedy is not to suppress it—it’s to point out why that’s wrong. But over and over, the government’s remedy for speech it didn’t like was to strongarm social media platforms to take it down.

The government wouldn’t have lost so much credibility if it had only said, “This is our best guess based on available evidence.” Instead, it spoke ex cathedra on masks, lockdowns, school closings, vaccine efficacy, infection rates, myocarditis, social distancing, you name it—claims that often turned out to be untenable—and then it bullied the platforms to censor prominent experts who took issue with its misinformation.

Many commentators are worried about disinformation and AI-generated “deep fakes” affecting the outcome of the 2024 election. What’s the best remedy for that?

The remedy for falsehoods is more speech, not enforced silence. If someone thinks a social media post contains altered imagery or audio, the initial solution is simply to say that and let the marketplace of ideas sort it out.  

Obviously counter-speech isn’t always the answer: You still run into eleventh-hour deep fakes that there’s no time to rebut. People do have privacy rights and interference with elections undercuts democracy.

The trick is to write legislation that catches malign fakery but doesn’t also pick up satire and humor that is obviously bogus. That’s not easy. Well-intended but sloppy laws often trigger serious unintended consequences.

This article first appeared on Tufts Now. It has been reprinted here by permission.


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