Former ACLU president cautions that American self-censorship is eroding free speech

Freedom of speech at college campuses, libraries, governments, social media, and in the public square is under attack today on all sides, according to former ACLU president Nadine Strossen.

Strossen, currently a professor at New York Law School, has emerged as a key voice in the fight for freedom speech, and offers up criticism of both the left and right, as she advocates for a robust interpretation of the First Amendment.

She believes that self-censorship and private sector censorship pose an even greater threat to today’s society than government censorship.

“I would say government censorship, with one caveat, is the least dangerous, and that is not because there is less government censorship. There certainly is… But having said that, the First Amendment provides a remedy for government censorship,” Strossen said. “When you’re talking about private censorship, and certainly self-censorship, there is no First Amendment remedy because, of course, the First Amendment only restrains government from invading free speech.”

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President Biden on the phone with granddaughter

Critics allege the Biden administration has abused government power to fight so-called “misinformation” and “disinformation.” (Joe Biden/Twitter Screenshot)

Recent revelations about heavy-handed government oversight of social media companies are of concern to her.

“The caveat to my statement about government censorship being the least dangerous goes to an issue that got a lot of publicity on July 4th and following through the order that was issued by a federal judge in Louisiana and Missouri: the Missouri v. Biden case,” she said. “When you have government so involved with private sector entities that government is in effect delegating its censorial power to these private sector entities, in this case social media companies, and in that case the federal trial judge held that there were so many factual allegations of inappropriate government pressure.”

Government officials’ fight against alleged “misinformation” and “disinformation” was, for Strossen, clearly crossing a red line.

“Yes, government officials are allowed to encourage, to persuade, to urge private sector platforms to take down certain messages, or exclude certain speakers. That is their own free speech right. But when they cross the line from protected encouragement to unprotected coercion, that’s a serious First Amendment problem but much harder to address,” she added. 

However, Strossen believes self-censorship is stifling American discourse to a larger degree and preventing open and honest debate on major issues. 

“Some self-censorship is appropriate,” Strossen said. “But the surveys consistently show that people are engaging in self-censorship to the extent of not only not expressing certain perspectives at all, but even not addressing whole topics at all, and they’re very important topics: namely race and gender and immigration and police practices. Some of the major public policy issues of the day.”

In the context of education policy, Strossen believes that the American public should be cognizant of the frequent discrepancy between a law’s intended purpose, and its potential for use and even abuse. She pointed to recent legislation in Florida that aimed to combat “indoctrination.” 

“Of course opposing indoctrination in a classroom could not be a more important purpose! As an educator, as a civil libertarian, I consider indoctrination to be the antithesis of education, so I fully support that goal,” she said. “But if you look at how the [DeSantis Florida] law is actually written, courts have held the language is so substantially overbroad and so unduly vague, that it in fact deters teachers from saying anything at all, or presenting any books or materials at all about these important issues, when we already have too much self-censorship.”

Florida Governor Ron DeSantis arrives at a campaign event

Florida Governor Ron DeSantis has been the subject of scrutiny with respect to his educational reforms, which critics argue infringe upon educators’ freedom of speech. ((Sergio Flores for The Washington Post via Getty Images))

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Strossen is also a frequent critic of the increasingly politicized environment on American campuses which has seen boisterous, and even violent, attempts to shout down or drive out speakers from college and university events:

“On many college campuses…students are saying we should be protected from harmful speech. A speaker comes to campus, including by the way an elected official, whose ideas on issues ranging from immigration to police practices to gender and so forth, the students dislike, disagree with,” she said. “They say ‘this is harmful and that it constitutes hate speech’, that should be punished.”

She notes that the Supreme Court only relatively recently in the American experience, broadened its view on the First Amendment.

“The Supreme Court, in the context of the Civil Rights movement in the 1960s, adopted a strong speech protective standard which says, ‘No. Government may not suppress speech because of this indirect attenuated speculative connection between speech and harm or something bad but only if there is a type and direct causal connection between the speech and some specific imminent serious harm,” she said. 

An example that Strossen cites in her recent book, which would not constitute protected speech, involved radio broadcasts in the context of the 1994 Rwandan genocide which clearly, specifically, and directly incited ethnically-based mass murder.

Yet, governments worldwide are increasingly using censorial and prosecutorial powers to shut down political speech, and not merely in dictatorships.

The Supreme Court building

The Supreme Court has played a pivotal role in expanding interpretations of the First Amendment. (AP Photo/J. Scott Applewhite, File)

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Strossen finds fault, for example, with the repeated prosecutorial maneuvers by the Dutch government against right-wing politician Geert Wilders, who is often accused of anti-Muslim hate speech.

“I so strongly disagree with the decisions that we get from various European countries under their so-called ‘hate speech’ laws. I oppose them being enforced against anybody, but it seems that it’s particularly problematic when they are enforced against people who are either seeking elected office or already elected to office because that clearly interferes with not only the free speech right of the would-be speaker, but also let’s not forget the free speech rights of audience member, she said. “But it’s also antithetical to the whole concept of representative democracy: that people are not allowed to express opinions on really important public policy issues and run for office or be elected to office.”

She highlighted how much Americans’ perspective on free speech has evolved over the decades. She noted how over a century ago the nation imprisoned political candidate Eugene V. Debs for speaking out against American involvement in World War I and how the Supreme Court upheld the conviction. A decision, she predicted would be opposed by a majority of Americans today. 

“In the United States, thank goodness, the First Amendment law has changed 180 degrees since the United States Supreme Court shockingly upheld the conviction of Debs, misinterpreting the First Amendment as allowing the government to outlaw speech that had a so-called ‘bad tendency’: that is, any speech that might at some point in the future lead to some harm,” Strossen said. 

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