As recently reported in the New York Times, a recent Knight Foundation survey of nearly 12,000 high school students has found that such students’ support for the First Amendment’s free speech protections is “stronger today than it has been in the last 12 years.”
As far as it goes, this is good news given the avalanche of unfriendly free speech policies and actions that have swept over higher education in recent years—e.g., trigger warnings; micro-aggression stipulations; speaker disruptions and “dis-invitations;” overly intrusive and chilling “bias reporting” systems; and the relegation of student expression to tiny “free speech zones” on campus. According to the Times, 91 percent of the high school students believe that “individuals should be allowed to express unpopular opinions.”
That said, the support is limited to “the First Amendment as a general concept.” As Jonathan Sotsky of the Knight Foundation told the Times, “Their support is tempered depending on the kind of speech and where it’s delivered…the devil is in the details.” In particular, support for free speech falls precipitously to 45 percent when the speech “is offensive to others and made in public,” and falls even lower, to 43%, when the offensive speech is on social media.
We can derive at least four points or lessons from these findings. First, the difference between support for free speech in the abstract and in particular cases is nothing new under the civil liberty sun. Such sociologists and political scientists as Samuel Stouffer, Herbert McClosky, and John Sullivan have repeatedly found it since the beginning of serious survey research on civil liberties in the 1950s. Reflecting the preoccupations of the time, general support in the past dropped off when subjects were asked about the speech rights of such political outsiders as communists and hate groups. Today young people are concerned about personal identity and self-respect, so drop offs are most prominent in domains dealing with personal social media. Furthermore, it is not surprising that people are more willing to support a right in the abstract than when its application entails either controversy or potential harm to others or society.
That said, it is also true that the defense right of free speech matters only when there is pressure to censor it. Speech expressing popular viewpoints has no need of protection. As Justice Oliver Wendell Holmes’ wrote, “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” (U.S. v. Schwimmer, 1929, dissenting opinion)
Second, we need to recognize the special concerns for free speech posed by social media. Many colleagues and students have told me that the most significant reason for expressive conformity on campus is the fear of being bullied on social media—a claim backed up by commentators more generally. On the one hand, social media has expanded the forum for discussion and debate. On the other hand, its misuse by moral and political bullies has cast a pall over the incentive to dissent and speak with intellectual honesty. We are only beginning to fathom how to deal constructively with this paradox. Young people today also appear to be more conflict averse than their predecessors were, which compounds the dilemma.
Though the survey did not delve into more specific or nuanced aspects of this concern, we should acknowledge that it is important to distinguish genuine bullying and intimidation from simply strongly disagreeing with someone. And there are shades of bullying. When bullying becomes harassment or a threat, it crosses into potential criminality. If it is painful yet not a threat or harassment, it can be normatively wrong but not illegal. The best remedy here is to encourage and educate people how to be civil with their disagreements, making sure that such education does not constitute bullying in its own right.
Third is the need to recognize the distinction between bullying, which is personally direct and meant to shame rather than inform, and causing “offense” by expressing unorthodox or controversial thoughts and ideas. As Jonathan Rauch has powerfully elucidated in his neo-classic work, Kindly Inquisitors: The New Attacks on Free Thought (1993), the “humanistic principle” that no one should be allowed to express an idea that might offend or hurt someone else because of its ideational content is anathema to free speech and an open society. Truths or honest opinions are often very offensive to people. For example, evolution was deeply upsetting to many fundamentalists. (And I doubt that monkeys felt very good about linked to human beings!) Indeed, the Supreme Court ruled in a famous 1971 case that the First Amendment protects offensive expression as a general matter. (Cohen v. California) As free speech philosopher Alexander Meiklejohn declared in Free Speech and Its Relation to Self-Government (1948), “To be afraid of an idea, any idea, is to be unfit for self-government.”
Finally, the survey suggests something that is a recurrent problem: the need for education in free speech and First Amendment principles. Protecting highly controversial and offensive expression is counter-intuitive in many ways, but it is a counter-intuition that is necessary in a free society. It is also counter-intuitive to many to extend trial rights to criminals or to require the state to get search warrants in criminal cases. But the counter-intuition goes away once one is educated regarding the reasons why, which include the consequences of doing otherwise. Such education is a proper part of civic education—the long-term weakening of which is another topic deeply worthy of discussion. Teaching civility in a manner that encourages vibrant debate rather than discouraging is also a matter of civic education.
Only with proper education will we be able to draw the appropriate lines—legal, or simply normative, depending on the issue—between protecting upsetting speech and unjustified bullying.