The Professor and Free Speech

The New York Times reported today that Hamilton College, in New York, has cancelled a speaking invitation by Colorado Professor Ward Churchill, who compared victims of 9/11 to Nazis (see previous post). The NYT report provides good background on what turned out to be a non-event.

No doubt there will now be cries of censorship and wailing about free speech. However, much of the crying and wailing will come from people who have no idea what they're talking about.

Generally speaking, censorship is a power of government. When the objections of citizens persuade educational institutions, broadcasters, and publishers not to promote certain speech, that isn't censorship. It's merely the free market of ideas at work. It doesn't become censorship until a government is involved in the suppression of speech, such as when the FCC acts to prohibit the expression of ideas or images that it deems indecent or objectionable.

Freedom of speech is protected under the First Amendment to our Constitution. Those who would claim that this professor has a free speech right to address the students of Hamilton College, or any other audience, would do well to read the Amendment. It states, quite simply, "Congress shall make no law...abridging the freedom of speech...." Through the evolution of law and precedent, that prohibition applies to all levels of government, not just Congress. But if citizens don't want to hear, see, or read someone's opinions, there is no obligation to provide a forum for the ideas considered offensive.

I believe strongly that freedom of speech, including in the broadest sense all forms of expression, is absolutely essential to the preservation of a free and democratic society. That isn't an original thought, of course. But too often those who profess to share that belief follow with some modifying statement, beginning with a "however" or a "but" or a "nevertheless." Those kinds of qualifications are unacceptable if speech is to be truly free.

In Schenck v. U.S. (1919), the Supreme Court established limits on freedom of speech. Justice Oliver Wendell Holmes, Jr., writing for a unanimous Court:

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. ...

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Some constitutional scholars disagree with this decision, and I think they're right. The First Amendment doesn't provide a right of free speech only if it isn't false or doesn't "create a clear and present danger." Moreover, to accept Holmes' argument is to accept that speech can be restrained before it creates a panic or some form of clear and present danger. But how is a government to know what result speech will have, absent some form of bureaucratic clairvoyance? In fact, shouting fire in a theater, without evidence of fire apparent, may result in no more than the one who shouts getting his butt kicked by those around him.

The essence of freedom of speech is tolerating expression of the most offensive ideas imaginable, even ideas that could prove to be dangerous. Otherwise, who gets to decide what is permissible and what is not?

In America, Professor Churchill is perfectly free to express his whackadoo ideas, and the rest of us are perfectly free to ignore him. More than that, we're perfectly free to urge Hamilton College to cancel his speech and the University of Colorado to fire him, and they're perfectly free to do so. I wouldn't have it any other way.