CATO’s New First Amendment Survey: Disconcerting Evidence on the Future of the Free Speech

The CATO Institute has released a major 64-page survey that asks a host of questions regarding how Americans view free speech rights and principles. Given space, let me stress what I consider the most telling or instructive findings. For a more precise understanding, I urge readers to consult the actual report. Overall, the CATO survey is one of the most exhaustive surveys available, and it asks questions that have high relevance to contemporary and recent free speech controversies.

The survey asks a broad range of questions relating to different controversial contexts of free speech including deeply offensive speech toward racial groups, religions, the military, etc.; speech that advocates or incites violence; flag burning; sexually offensive speech (obscenity and pornography); not standing for the national anthem; and policies that might chill free speech, such as “trigger warnings” and “micro-aggressions.” In addition, it asks questions about attitudes toward such institutions as colleges and the media, and about policies affecting these institutions.

On the one hand, overall, the findings are disconcerting for the future of free speech in America, though one could reach a similar conclusion based on classical surveys extending back to the 1950s. Support for free speech has always weakened when respondents are asked about controversial applications, with certain topics standing out based on the zeitgeist. Back in the 1950s, not surprisingly, communist speech was especially controversial. Today, commitment to identity politics poses the biggest challenge to free speech principles. This is especially the case on college campuses. CATO surveyed adults 18 years of age and older, with an oversampling of college students and graduate students. (See the “Survey Methodology” at the end of the survey.) So though its specific categories of response do not deal with age, over a third of the respondents are in college.

On the other hand, some responses appear to be less troubling. In particular, a clear majority of respondents considered “political correctness” to be a problem, and at least two-thirds of all respondents believed that free speech ensures that truth will “ultimately” prevail. I will say something about these findings below.

A recent editorial in The Economist also provides perspective and reason for some hope. (October 17, 2017.) Comparing the responses of college students in other surveys to older adults, the editorial points out that young people who have attended college remain more tolerant of controversial speakers than the general public—a finding that is consistent with a long line of social science research that correlates education with increased tolerance of unwanted speech. A Gallup survey of 3000 students for the Knight Foundation and Newseum found that 78% prefer schools where “offensive and biased” speech is allowed. Even at Yale, where a notorious protest against free speech erupted in the fall of 2016, 72% of students opposed speech codes, with only 16% favoring them. On the other hand, Yale students reported that their reluctance to speak with intellectual honesty about such matters as race, politics, gender, and religion increases during their four undergraduate years at Yale. The Economist not unreasonably attributes this chilling effect to the outspokenness of the activist 20% who disrespect free speech and the administrative programs and actions that support this minority cohort over the good of the institution as a whole.

The CATO survey divides respondents into categories based on race (Whites, African Americans, Latinos) and political affiliation (Democrat, Independent, Republican). Though it would be instructive to break these categories down into more specific designations (e.g., more conservative/mildly conservative; white Hispanic/non-white Hispanic), the survey is informative and suggestive as far as it goes, especially due to the wide range of questions it asks. Responses provide for “Net-agree” and “Net-disagree,” as well as “Strongly agree,” “Somewhat agree,” “Somewhat disagree,” Somewhat disagree,” and “Don’t Know/Refused.” For reasons of brevity and simplicity, I will only deal with Net-agree and Net-disagree.

Not surprisingly, many responses vary according to race and political affiliation. All groups support free speech in the abstract—addressed with the first question—but less so when speech becomes controversial. But they differ in how they respond based on their experiences and values. Whereas Republicans are usually more supportive of free speech when it is in tension with identity politics, such as the right to offend, they head in the opposite direction when it comes to such things as flag burning—a stunning 53% of Republicans favor the extreme penalty of loss of citizenship for burning a flag, along with 49% of Latinos and 28% of Democrats. Democrats do an about face when it comes to “deeply offensive” speech and racist speech. And the two parties see quite different worlds when it comes to whether higher education and the press are doing their jobs correctly: not surprisingly, Republicans are far less supportive of these institutions in today’s environment.

By presenting this survey, CATO joins a growing list of organizations and authors who have been attempting to fathom just what our nation’s citizenry currently think about this cardinal constitutional right in a time of political upheaval and nation-wide concerns about the meaning and status of free speech. Recent reports have come from the Foundation for Individual Rights in Education, the Brookings Institution, Gallup, and the PEW Research Center, to mention just a few.

The other reports look at young people and college students, with often disconcerting findings. For example, a 2015 PEW report found that 40% of Millennials think that speech deemed “offensive” to minorities should be limited, even though the protection of “offensive” speech is a cornerstone of the Modern Doctrine of Speech fashioned by the Supreme Court and scholarly opinion. The other reports show similar results. In her new 2017 book, iGen, generational psychologist Jean Twenge reports that members of the younger iGen set are even less disposed to protecting offensive speech than their predecessors, including Millennials. But CATO’s survey does not take account of age, looking instead, as mentioned, at how members of three races and three political affiliations respond to specific questions about the legality or rightfulness of allowing free speech in certain controversial contexts.

Overall, the findings suggest that established libertarian free speech doctrine is in jeopardy down the line: far too many citizens disagree with the libertarian doctrine presently adhered to by the Supreme Court, so America has much to do if it wants to sustain and nourish broad-based free speech and intellectual freedom that is part of our heritage; and when it comes to the protection of speech in such controversial areas as race and patriotism, many liberals and conservatives live in different worlds.

Four questions appear to stand out in this regard, though one could pick several others as well. When asked if there should be a law that “requires” people to refer to transgender people by their “preferred gendered pronouns and not according to their biological sex,” 51% of Democrats were in favor, along with 40% of African Americans and 42% of Latinos—and “only” 21% of Republicans. One can hardly think of a better example of the blurring or evisceration of the difference between the normative encouragement of good manners and actual legal coercion.

The second example deals with the rise—especially on campus—of the claim that hate speech and offensive expression constitute actual forms of violence—a claim that lays waste to the fundamental presumptive distinction between speech and action that is necessary for the constitutional protection of strong dissent. In response to the question “Is hate speech an act of violence,” 53% of “All” respondents said “Yes.” But significant differences prevailed according to race and political affiliation: 46% of Whites; 73% of African Americans; 72% of Latinos; 66% of Democrats; 48% of Independents; and 41% of Republicans.

The third question I select for this purpose asks if people “who don’t respect others” “deserve” the right to free speech. Despite the obvious breadth and vagueness of this question—it essentially asks if “disrespectful” people deserve the right of free speech—44% of “All” respondents said that they do not deserve such a right: 59% of African Americans, 62% of Latinos, 47% of Democrats, 44% of Independents, and 39% of Republicans.

The fourth example deals with colleges and offensive speech: “Colleges have an obligation to protect students from offensive speech and ideas that could create a difficult learning environment.” Here, 53% of “All” net-agreed, compared to 45% net-disagreeing. As with many such questions, Whites differed significantly from African Americans and Latinos, whereas political affiliation made a significant difference: 66% of Democrats net-agreed, but “only” 47% Independents and 42% Republicans. Note that the question asked about “speech and ideas,” which constitute the essence of what a college education is supposed to provide and encourage.

Because liberals and progressives typically enjoy disproportionate representation in higher education today, the political ideology differences in the survey indicate stronger support for censorship of offensive speech in that domain today than even many critics of higher education have discerned.

This concern is highlighted by a question that asks if respondents consider “political correctness” to be a “big problem” for the country. 70% of “All” net-agree, including—interestingly—62% of African Americans and 70% of Latinos. But a huge political divide exists: only 50% of Democrats net-agree, compared to 90% of Republicans, and 78% of Republicans. Once again, this difference goes a long way of explaining the troubled status of free speech on college campuses today.

But another set of responses to a different question appears to cut the other way: when asked if “Freedom of speech ensures the truth will ultimately win out,” generally two-thirds of every category were in net-agreement. Republicans were only slightly ahead in this regard. Perhaps this is because Democrats think that the presence or influence of political correctness actually makes free speech more likely to produce truth. Other explanations are possible, of course.

Classic studies correlated support for free speech and other civil liberties with education: the more educated you were, the more you supported free speech and civil liberty when in the face of controversy. But the plight of free speech on college campuses today augurs poorly for this support of the educated to continue, as does the substantial slip in support by Democrats and minorities when it comes to speech deemed offensive on such grounds of race, religion, and immigration. As our nation becomes more diverse, this slide in support for offensive speech could lead to legal change. College campuses may be the canary in the coalmine.

Another important feature of the CATO survey is that while it focuses mainly on respondents’ attitudes or opinions about free speech, it also asks about their knowledge regarding the First Amendment’s protection of offensive speech and of the new challenges to speech. This distinction matters for at least two reasons. First, knowledge is important because knowing vital civic facts and principles is the first step in the understanding and then the critical appreciation of the principles of a free society. It’s a three-step process. Can a constitutional republic be sustained without such knowledge, understanding, and critical appreciation? Though it touches on knowledge, the survey is weighted toward understanding and appreciation, the last two steps in the process of citizenship.

Second, contemporary surveys have consistently shown that the public—and especially the young—have poor basic knowledge of civic facts. (See, e.g., the American Political Science Association report by a panel of experts on civic understanding and involvement). A recent survey by the American Council of Trustees and Alumni (ACTA) has shown at least one reason for this dearth: the disappearance of college courses in American and constitutional history.

E. D. Hirsch has convincingly argued that a meaningful education requires sufficient “cultural literacy” in citizens, which entails a basic knowledge of important cultural facts. In a related vein, knowledge of basic cultural and historical facts is necessary to educated citizenship.

CATO does not distinguish the age of its respondents, but there is reason to believe that younger groups are less informed than older ones because of American history’s AWOL status in higher education today.

The responses to CATO’s first two questions set the stage for what is to come in synecdoche form. The responses to these questions more or less reflect differences in the 62 questions that follow, except for deviations based on the particular content of certain questions.

Question 1: “Which of the following two statements comes closer to your own view?”

  • People should be allowed to express unpopular opinions in public, even those that are deeply offensive to other people.
  • Government should prevent people from engaging in hate speech against certain groups in public. [Emphasis added]
  • Don’t know/refused
  • Total

This question is an opinion, not a knowledge question. And it asks if respondents are willing to use the coercive force of law to punish speech.

Question 2: deals with knowledge, the actual state of First Amendment law: “From what you know now, do you believe it is currently legal or illegal for someone to make a racist statement in public?”

  • Legal
  • Illegal
  • Don’t Know/Refused
  • Total

The correct answer to Question 2 is that the First Amendment does indeed protect racist speech except when it amounts to a criminal threat, direct incitement to imminent lawless action, or a similar narrowly defined dangerous situation.

75% of the overall respondents knew that the law protects racist statements in general, though significant differences appear based on race. 83% of Whites agreed, but only 61% of African Americans and 55% of Latinos. Whether this difference of knowledge is due to education or personal experiences of racism is unknown. Political partisanship was not significant, though Republicans came out slightly better: 75% of Democrats agreed, 72% Independents, and 78% Republicans.

The big difference arose for opinion, which augurs poorly for the future of the Modern Doctrine of Speech. When asked if “deeply offensive” speech should be protected, overall support drops to 59%: 66% of Whites; 42% African American; 41% Latino. 40% of “All” respondents do not just normatively disapprove of protecting deeply offensive speech, but contend that “Government should prevent” such speech, which would entail punishment under the criminal law. Racial differences here are significant: 33% White; 56% African American; 58% Latino.

Political affiliation is also significant in response to this opinion question, unlike with the knowledge question: 72% of Republicans said that deeply offensive speech should be allowed, with only 27% saying it should be prevented. Though Democrats closely mirrored Republicans in their knowledge of the law for this question, 52% said the government should prevent deeply offensive speech—a substantial drop off compared to Democrats’ knowledge that the speech is protected by law. The comparable drop off for Republicans is 6%.

The first two questions show that normative support for offensive speech varies substantially by race and political affiliation. That over half of the Democrats surveyed support actual government censorship of offensive speech is deeply disconcerting to those who support the Modern Doctrine of Speech. But, as seen above, Republicans also have their moments of being less friendly to existing free speech protections.