No Offense

Wendy Kaminer

Americans are virtually unanimous in their professed support for free speech, according to the Freedom Forum’s 2007 report, “The State of the First Amendment.” Ninety-eight percent of survey respondents agreed that “the right to speak freely about whatever you want” is “essential” or, at least, “important.” But this strong expression of support for the idea of speaking freely in general conceals a weak commitment to the practice of it in particular.

Fifty-six percent of respondents to the same survey disagreed that “People should be allowed to say things in public that might be offensive to racial groups.” About the same number (58 percent) objected to allowing demonstrators “to express themselves through protest while standing on public sidewalks or streets as a funeral procession passes by.” And a strong majority, 74 percent, disapproved of allowing public school students “to wear a T-shirt with a message or picture that others find offensive.”

It’s worth noting that people seemed considerably less troubled by the right to offend religious rather than racial groups. While a majority apparently favored protecting the sensibilities of racial minorities, only a minority (albeit a strong one, 39 percent) opposed allowing people to offend religious groups. A slightly stronger minority, 42 percent, opposed allowing musicians “to sing songs with lyrics that others might find offensive.”

What these inconsistent findings clearly suggest is that while Americans claim adherence to free speech—the defense of speech they hate—what people really support is the defense of speech they like or speech they don’t deem unduly harmful or offensive. Given America’s history of slavery, racial oppression, and strife compared with its history of relative religious freedom and comity, it’s not surprising that people are more wary of racial provocation and more anxious to restrict racially offensive speech. Strong minority support for restricting offensive lyrics is equally unsurprising, given longstanding popular concern about the corrosive effects of rock, rap, and other forms of pop music. Strong majority opposition to providing high-school students with speech rights probably reflects fears of school violence, heightened concern about bullying or harassment, and a desire to imbue teenagers with respect for authority, however arbitrary.

The movement to censor speech deemed offensive and hurtful to presumptively vulnerable or historically oppressed groups is also a triumph for the most regressive tenets of contemporary progressivism. Campus speech, civility, and harassment codes reflect and reinforce the now-conventional “progressive” view that speech rights should yield to some imagined right not to be insulted or offended. The censorious effects of this new “right” are felt on and off campus. Last year, the New York City Council passed a symbolic moratorium on the word nigger (with the tacit support of the New York Civil Liberties Union.) If the City Council lacked the legal right to enforce a ban on a racial epithet, it did not lack the will.

Less symbolic are rules against workplace harassment that target isolated instances of what may be entirely unintended racist or sexist insults. Consider this case reported last year in the Boston Herald: Jaime Garmendia, a young Mexican-American customer-service worker for the Boston transit system, made the mistake of wearing a noose around his neck to work on Halloween. Garmendia explained, plausibly, that he wore the noose as part of a pagan ritual to honor the Day of the Dead; but if his intentions were innocent, they were apparently irrelevant; he was required to attend racial sensitivity training. And, like a hostage to political correctness, Garmendia issued a self-abnegating apology, berating himself for insensitivity.

What’s wrong with this case? Shouldn’t the transit authority have the power, doesn’t it arguably have the obligation, to prohibit employees from wearing symbols of lynching to work? Probably; but if Garmendia’s right to speak his mind may be somewhat limited in the workplace, his right to think his own thoughts should be sacrosanct. Racial sensitivity training is generally designed to tell people what and how to think about race. Forced apologies do not reflect or inspire repentance; they are instruments of humiliation and control. Freedom to speak includes the freedom to choose silence.

That liberty implies freedom of choice is, of course, a basic precept of the abortion rights movement; yet in several states, abortion rights advocates have successfully pressed for restrictions on the right to protest outside abortion clinics. The Supreme Court has upheld some restrictions in the interests of avoiding the presumed “potential trauma” to patients posed by some protests. In 2000, in a 6 to 3 decision, the Court upheld a Colorado law prohibiting protesters within one hundred feet of clinic entrances from coming within eight feet of anyone entering or simply passing by a clinic. But Justices William Rehnquist and Sandra Day O’Connor joined the 2000 majority in upholding the Colorado law, and both have been replaced, by John Roberts and Samuel Alito, who seem likely to strike down similar laws. A 6 to 3 decision in favor of buffer zones may become a 5 to 4 decision against them if new federal lawsuits are filed.

Massachusetts may provide a new test case with a 2007 law imposing a stringent thirty-five-foot no-protest zone outside entrances to abortion clinics; it “protects” women entering the clinics from being harangued or merely approached with literature by anti-abortion protesters, or affronted by the sight of them silently holding signs outside clinic entrances. The Alliance Defense Fund (ADF), a right-wing advocacy group, has filed a federal challenge to the new buffer zone, claiming that it “essentially eliminates free speech rights within the zone by restricting prolife advocates from sharing their message with people entering the clinics.” ADF is a conservative Christian group dedicated to “defending the right to hear and speak the Truth through strategy, training, funding, and litigation,” but its First Amendment challenge to the buffer zone is one that liberal civil libertarians should support, even while sympathizing with the concerns of abortion rights advocates.

The onerous new restrictions cannot simply be attributed to mere squeamishness about offensive speech. In 1994, an anti-abortion gunman invaded two Boston-area clinics, killing two people and wounding five. But the thirty-five-foot buffer zone includes prohibitions on peaceful, political speech and was not simply demanded, or required, by concerns for security: it was also based on the popular belief that women entering clinics have a right to be protected from speech that offends, upsets, or intimidates them.

“Free speech does not include hate speech,” adherents of this view often explain absurdly. In fact, guarantees of free speech exist to protect unpopular, offensive, or “hateful” speech that many people would rather not hear. Liberals and self-identified progressives bear much of the blame for popularizing this dangerous nonsense about the regulatory limits that may be imposed on speech in the interests of civility or inoffensiveness. It should be obvious, but apparently isn’t, that the right to speak is nullified when made contingent on the willingness of people with opposing views to listen.

Wendy Kaminer

Wendy Kaminer is a lawyer and social critic. Her latest book is Worst Instincts: Cowardice, Conformity, and the ACLU (Beacon Press, 2009).

Americans are virtually unanimous in their professed support for free speech, according to the Freedom Forum’s 2007 report, “The State of the First Amendment.” Ninety-eight percent of survey respondents agreed that “the right to speak freely about whatever you want” is “essential” or, at least, “important.” But this strong expression of support for the idea …

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