Is More Speech the Way to Counter Bad Speech?

On May 29, I watched in disbelief as the police handcuffed a CNN crew while broadcasting live from Minneapolis in the aftermath of George Floyd’s murder. The appalling violation of freedom of the press would have been outrageous even under an openly autocratic regime. In the self-proclaimed land of the free, it was just unacceptable. What was really alarming, though, was the strange sense of normalcy surrounding the incident, undoubtedly one of the results of the White House pursuing its incessant war against the “enemies of the people.”

President Donald Trump did not invent hatred for the media, but he made it acceptable in public discourse. He provided an aura of legitimacy to it, and that trickled down, informing ordinary citizens and institutions. That sense of legitimacy is also why the Minnesota State Police might mischaracterize an incident that was fully videotaped. (Though CNN crew members were reporting live and identified themselves as such to the police before being arrested May 29, the state police tweeted that the three crew members were released after they were confirmed to be members of the media.) And it’s also why Delaware State Police tackled and briefly jailed Andre Lamar, a black reporter and photographer for the USA Today network. Officers disregarded him saying multiple times, “I’m with the press,” and that he was broadcasting the whole scene on Facebook Live.

One of the tragic lessons in Floyd’s case is that getting caught on camera while committing a heinous crime or suppressing a fundamental right is not a very strong deterrent for those who generally tend not to be held accountable for their actions.

Since the CNN episode, over 380 incidents involving journalists have been investigated, according to a tally compiled by U.S. Press Freedom Tracker. Reporters have been assaulted, tear-gassed, beaten, pepper-sprayed, shot at, and arrested, undermining their ability to cover the unrest all over the United States. It’s an unfortunate pattern of infringing on what I, as a European, have always admired as one of the most cherished principles of the American democracy — freedom of speech, enshrined in the First Amendment.

Because freedom of speech in the U.S. is less restrained than in some European countries, it has always been exposed to the most questionable interpretations, and not infrequently twisted for political purposes. For instance, the First Amendment is what allowed Nazi supporters to rally in Skokie in 1978 and gave big corporations the power to bankroll presidential elections due to the 2010 Citizens United v. Federal Election Commission Supreme Court decision, both highly contestable outcomes.

At the same time, the free speech principle is conceived in such a way that the remedy for its abuses and tendentious interpretations is more speech. Instead of banning what was considered intolerable in the public debate, as several democracies in post-war Europe did, the American system generally broadened what’s permissible in the debate, in the implicit conviction that even the most unsavory, despicable ideas should be challenged with other ideas and not simply outlawed.

As Supreme Court Justice Louis Brandeis wrote in 1927, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

The massive wave of protest set off by Floyd’s killing is challenging freedom of speech in at least two significant ways. On the one hand, members of the media have been attacked and arrested at an alarming pace, compromising the right of the public to be informed of the momentous circumstances the country and the world are going through. This has to be countered with more aggressive coverage, demanding accountability for institutions and individuals trying to silence reporters.

On the other hand, the challenge for the media in this intensely polarized and violent environment is to determine whether the remedy to be applied to counter bad speech is more speech, as Brandeis prescribed almost a century ago.

The controversy over Senator Tom Cotton’s op-ed in The New York Times captures the dilemma. The editor of the Times opinion page has resigned for publishing a piece in which the Republican Senator from Arkansas made the case for sending the military to contain the violence that erupted in the streets along with peaceful protests. Many in the newsroom vocally objected to the choice to publish the highly contentious piece — one columnist described it as a “civil war” — arguing that Cotton’s ideas shouldn’t have been included within the bounds of legitimate debate. It put protesters and staff in danger, they argued.

After much explaining and apologizing, a Times spokesperson said the article didn’t meet the paper’s editorial standards, and the leading editors of the section were replaced. However repugnant Cotton’s argument may be, and even “fascist,” as another Times columnist described it, the decision to disown the op-ed provided the Times’s answer to the free speech dilemma — more speech is not the remedy to mending our broken conversation.

Backtracking is tactically problematic, too, as on both sides of the Atlantic critics who argue that the mainstream media are tools of the liberal elite and suppress conservative views are eager to have their conspiratorial views confirmed. It shouldn’t come as a surprise that Senator Cotton’s campaign is now sending fundraising emails leveraging the “total meltdown from the media” he caused.

“More speech” used to be the remedy U.S. media relied upon when dealing with debate among competing views. The New York Times published op-eds by Russian president Vladimir Putin, lecturing the U.S. on the virtue of diplomacy; the deputy leader of the Taliban, Sirajuddin Haqqani, sketching the “equal rights” society they are envisioning; its columnists and contributors argued that pedophilia is “a disorder, not a crime,” that “white women use themselves as instruments of terror,” and the “road to coronavirus hell was paved by evangelicals” (that headline was later modified).

Some of these takes may be deeply unsettling for some readers, but their relevance makes them worth throwing into a marketplace of ideas that has never been totally unregulated but also never so guarded and protective of specific sensitivities as today. Of course, the process of sorting out what ideas should be considered relevant, and therefore worth publishing, is an imperfect one, and disagreements are inevitable.

These are tough judgment calls that will always expose editors to the risk of making the wrong decision. But what I’ve always admired in the U.S. is the effort to enlarge the space for debate, to the point of allowing deeply irritating ideas to be discussed and energetically dismantled with counterarguments. Both restricting the boundaries of legitimate speech and letting every take go unrestrained in the name of free speech are ultimately unsatisfactory options. But between two imperfect stances, I’d rather err on the side of more speech.

Maybe the traditional “bothsiderism” in the opinion departments has to be reformed, as some are advocating, to avoid false equivalences. Maybe Cotton’s views should have been presented in the context of a news article, rather than “normalized within the prized real estate that is the op-ed page of The New York Times,” as The Washington Post’s media columnist Margaret Sullivan suggested.

But even that would not solve the dilemma over the boundaries of what’s acceptable and what’s not. More speech used to be a remedy, while today it is increasingly seen as a threat.