Nadine Strossen is a distinguished author, legal scholar, and unwavering civil liberties activist whose work has left an indelible mark on the landscape of human rights and freedom in the United States. As the first woman to lead the American Civil Liberties Union (ACLU) from 1991 to 2008, she steered the organization through some of the most pivotal moments in the fight for civil liberties, defending First Amendment rights, LGBTQ+ rights, and a range of critical social justice causes. Strossen’s extensive contributions to literature and legal scholarship, including her book “Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights,” have helped shape the discourse on free speech, gender equality, and social justice, making her a revered authority and an inspiration to activists and advocates worldwide.
With a deep-seated commitment to the principles of justice, Nadine Strossen continues to be an influential figure, challenging legal norms, advocating for marginalized communities, and emphasizing the critical importance of safeguarding individual liberties in our ever-evolving society. Her life’s work reflects a dedication to advancing human rights and a resolute belief in the power of dialogue, understanding, and the enduring struggle for a more equitable and inclusive world.
Can you share some personal anecdotes or experiences that have shaped your perspective on free speech?
As a child and adolescent, I experienced and observed free speech violations that I found deeply disturbing, and which instilled in me an appreciation of both how important free speech is, and how vulnerable it is. One of my personal experiences with speech suppression occurred when I was a 15-year-old high school student, concerning speech about the Vietnam War, which was then still quite popular in the US, meaning that any criticism or even questioning of the US involvement was viewed as unpatriotic, even treasonous. One of my social studies teachers had put together a slideshow with images of the war, including napalm attacks on civilians. There was no verbal commentary; the slides were shown with only some folk music as background. This slide show was viewed by critics as controversial, dangerous speech, which shouldn’t be permitted, and there were efforts to prevent the teacher from continuing to display the slide show and even to fire him. The local newspaper ran a couple editorials to that effect. In response, I wrote a couple letters to the editor rebutting the editorials. I also organized a petition drive among students, defending the teacher’s free speech right to display the slide show and the students’ free speech right to view it.
Another one of my personal experiences with speech suppression took place throughout my entire youth; the public library in my hometown restricted minors from accessing any books other than those in two rooms that had been specifically set aside for minors. As an avid reader (in those days, we were called “bookworms”!), I had read and re-read every book in those two rooms multiple times long before I reached adulthood, so I was deeply frustrated by being denied access to the rest of the library. When I was 22 years old, the American Library Association amended its Library Bill of Rights to expressly protect minors’ rights of library access. I wish that right had been recognized and enforced earlier in my lifetime!
In light of the two examples I have noted above, I have always been especially supportive of free speech rights for young people, including school students. Among other reasons why I think these rights are especially important is for invigorating the future of free speech. If students and other young people don’t have experience with exercising their free speech rights while they are minors, they are less likely to exercise those rights when they are adults, with an adverse impact not only on their individual liberty and equal rights, but also on our democratic political system. As the Supreme Court declared in its most recent student free speech decision on behalf of a high school student (2021), free speech in that context is especially important because “public schools are nurseries of democracy.”
The major example of violations of other people’s free speech rights that I observed at a young age, which further heightened my understanding of free speech’s importance and vulnerability, came from the 1960s Civil Rights Movement. I was horrified by televised images of the violence to which law enforcement officials subjected peaceful protestors against segregation, many of whom were students and young people, so I identified especially closely with them: beating them with truncheons, spraying them with water hoses, and attacking them with dogs.
How do you address concerns about the spread of false information and disinformation in the context of free speech?
Consistent with the general “emergency principle” – permitting the government to restrict speech that directly causes specific serious harm – the government may punish false speech when it satisfies this standard. Important examples of punishable false speech include defamation, fraud, and perjury. The term “disinformation” (or “misinformation”) has no specific legal meaning, but is widely used to describe false or misleading speech that cannot constitutionally be punished precisely because its potential harms are speculative.
Current debates show that one person’s cherished truth is someone else’s despised or feared “fake news.” Speech that critics seek to suppress as disinformation almost never consists of objectively verifiable/falsifiable facts alone, but rather also involves subjective matters of interpretation and analysis. After all, speakers who intentionally or recklessly utter false factual statements often may be constitutionally punished under existing laws such as those against fraud and defamation. In contrast, though, the Supreme Court has ruled that “[u]nder the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend on its correction . . . on the competition of other ideas.”
If the government were permitted to determine which ideas should be punishable as “false,” the most vulnerable would be ideas that challenge government policy. Until the Supreme Court’s historic 1964 New York Times v. Sullivan decision, which reined in the concept of punishable defamation, Southern officials systematically pursued multiple defamation lawsuits against civil rights activists and national media outlets for even trivial factual inaccuracies, with the specific goal of stifling both sets of speakers. In short, the pre-1964 defamation law, which permitted the government to punish disinformation, was weaponized against the government’s critics.
To this day, expression by racial justice advocates continues to be assailed as disinformation. For instance, a May 25, 2021 NPR story quoted Mike Gonzalez, a senior fellow with the Heritage Foundation, as stating: “I feel that Black Lives Matter is one of the greatest sources of disinformation. . . They have manipulated the good nature of many people.” To be sure, such charges of disinformation themselves constitute protected speech – indeed, the very type of “counterspeech” that is the appropriate response to any speech that is believed to be false or misleading. My point is that the government should not be empowered to deploy this malleable concept as the basis for censorship.
The inherent problems with censoring disinformation in general plague recent laws that are touted as restricting pandemic-related disinformation in particular. The Economist reported in February 2021 that “[c]ensorious governments are abusing fake news laws,” invoking the pandemic as “an excuse to gag reporters” and to silence critics of their anti-pandemic policies. Given the inescapable elasticity of the concept of disinformation, restrictions on it can easily be wielded against important information, even in democratic countries. Throughout the pandemic, we have witnessed constantly evolving and shifting views among expert individuals and agencies, as they steadily gather and analyze additional data. Yesterday’s life-endangering disinformation can – and has – become today’s life-protecting gospel. As one example, recall the CDC’s changing edicts about mask-wearing.
Because of these unavoidable problems with outlawing COVID-related disinformation, in 2020, the ACLU brought a lawsuit against Puerto Rico’s laws on point. The complainants were two prominent investigative journalists, who explained that “developing stories on matters of immense public concern are often complex, contentious, and murky,” so that “inadvertent inaccuracies are inevitable even in the most thoroughly vetted reporting.” Shortly after the laws went into effect, the Puerto Rican government charged a leading clergyman with allegedly disseminating false information on WhatsApp, about a rumored executive order to close all businesses. In fact, however, only a short time later, the Governor did issue just such an order.
Multiple studies have concluded that the most fruitful anti-disinformation tool is accurate information that can check its spread and influence, including: proactive dissemination of accurate information; targeted responses to specific disinformation; and preemptive general educational approaches, enhancing information literacy and critical media skills. Psychological research shows that even more effective than debunking disinformation after its distribution is “pre-bunking.” A study published in the August 2022 Science Advances journal demonstrated the successful impact of this approach on people with various political beliefs, and concerning various conspiracy theories. Its authors analogized pre-bunking to medical immunization: “Preemptively warning and exposing people to weakened doses of misinformation can cultivate `mental antibodies’ against fake news.” In sum, in contrast with censorship, these “counter speech”/“more speech” strategies not only are more compatible with free speech and democracy; they also are more effective in promoting truth.
Your book touches on the concept of cancel culture. What are your thoughts on this phenomenon and its impact on free speech?
Legal protections for freedom of speech are necessary, but not sufficient, to create conditions in which free speech can maximally flourish: where all members of our society enjoy actual and equal opportunities to express themselves, and to participate in discussions about public issues, no matter who they are, and no matter what they believe. Public opinion surveys indicate that many people do not exercise their legal free speech rights because they fear adverse reactions by their peers or other members of our society, including online mobs. These reactions include calling for and imposing various punitive sanctions on the speaker, such as social ostracism and even the loss of jobs or expulsion from school.
Far from violating speakers’ First Amendment free speech rights, even the harshest criticism of speakers and their ideas, including advocacy that they be harshly punished, constitutes the critics’ exercise of their free speech rights. Yet the term “cancel culture” captures the concern that some criticism is disproportionately harsh, and has an unduly speech-suppressive impact on not only the directly targeted speaker, but also countless others. Surveys indicate that substantial percentages of all of us, across the political and demographic spectrums, are deterred from voicing certain views, or even from addressing whole subjects, for fear that we might face such harsh consequences. These surveys do not focus on speech that most of us believe should be self-censored, including targeted racist or other epithets directed at another person. Rather, they concern general expressions of opinion, or even asking questions, about complex public policy issues, including those involving racial justice, gender equality, police reform, immigration law, and pandemic measures.
Nourishing a culture that encourages both robust free speech and robust counterspeech, while avoiding unduly harsh and intimidating advocacy on either side, entails the proverbial “delicate balance.” After all, robust free speech itself may have the same intimidating, chilling impact that harsh counterspeech does. Advocates of restricting hate speech (beyond the specific situations when it may now be restricted, consistent with the emergency principle) correctly observe that hate speech may well have a silencing impact on not only those directly targeted, but also others within the disparaged group. For this reason, opponents of such broader hate speech restrictions expressly advocate vigorous, proactive counterspeech to deter hate speech. But here’s the tough question: “When does counterspeech go too far?” A thoughtful, nuanced answer was provided by Suzanne Nossel, CEO of the free speech organization PEN America:
You can firmly reject a speaker’s message without demanding that he or she suffer for it. Even if the [speaker] deserves no sympathy, when social ostracization becomes demonization and dehumanization, it debases our discourse writ large…
Digital discourse affords us the collective power to justifiably inhibit speakers from voicing noxious views. But it also allows us to silence countless others who may withhold original ideas or provocative perspectives because they fear toxic, virulent blowback….
Ultimately, the purpose of counterspeech should not be to exact retribution or to humiliate, but rather to persuade.
Just as counterspeech – not government censorship – is the appropriate response to hate speech (and other controversial speech), counterspeech – not government censorship – is also the appropriate response to unduly harsh anti-hate counterspeech. Counterspeech is an imperfect tool: in some instances, as Nossel expounds, it suppresses speech that isn’t harmful and that it doesn’t seem to target; furthermore, in other instances, it does not sufficiently suppress the harmful speech that it does target. Nonetheless, counterspeech holds both more promise and less peril than government censorship.
What role should social media platforms and tech companies play in moderating speech on their platforms?
Social media companies, as private sector entities, have no general First Amendment obligation to honor free speech rights of anyone who uses their platforms, or seeks to do so, consistent with the “state action doctrine,” which means that only government action is subject to First Amendment (and other constitutional) constraints. Moreover, along with traditional media, social media have their own First Amendment rights to decide which speech and speakers they will host on their platforms, and which they will not. Accordingly, the social media companies may adopt whatever “content moderation” policies or “community standards” they choose.
Notwithstanding the fact that users (and would-be users) of giant tech platforms have no First Amendment right to voice their views on such platforms, as a practical matter, meaningful free speech requires access to such platforms. In a 2017 decision, the U.S. Supreme Court declared: “While in the past there may have been difficulty in identifying the most important places…for the exchange of views, today the answer is clear. It is cyberspace…and social media in particular.” Among other things, the Court recognized, social media are the most essential platforms for debate and discussion about public affairs and public officials among “We the People,” and for us to engage with officials and candidates. This makes it vital for our democracy to maintain the same “uninhibited, robust, and wide-open” free speech in these new venues that the Court has historically shielded in traditional venues. In short, we now face the worst of both worlds when it comes to online companies’ censorial power over everyone else’s speech. As the Supreme Court acknowledged, these companies wield power over speech of a magnitude that in the past has only been exercised by governments. Yet they exercise this power unconstrained by the First Amendment and other constitutional checks that limit government power, but not private sector power.
Some people whose messages have been removed from social media platforms, or otherwise treated unfavorably (e.g., by having warning labels attached), or who have been barred from platforms altogether, have invoked the “entanglement” exception to the state action doctrine. When a private sector action involves a sufficiently close “entanglement” or relationship with the government, then the ostensibly private action is treated as tantamount to government action and subject to the same First Amendment constraints that bind the government itself. In each situation in which the entanglement exception is alleged, the court must make a fact-specific determination whether the purportedly private action in fact resulted from enough government pressure or collaboration. Recently, several federal court judges have held that various Biden Administration officials have sufficiently coerced social media companies to suppress certain COVID-related “disinformation” that such suppression violates the First Amendment; the Biden Administration has asked the Supreme Court to review that ruling.
Regardless of whether the social media companies have a First Amendment obligation to respect users’ free speech rights, it would be desirable for them to do so, given the huge importance of these platforms for personal and civic discourse. Respected experts have urged social media companies to voluntarily align their content moderation policies with the international law of free speech under United Nations treaties, which in key ways parallels First Amendment law; most importantly, the UN law also stipulates that speech may only be restricted in an emergency situation, when necessary to avert imminent serious harm, and only when the restriction is “narrowly tailored” – i.e., drafted with sufficient clarity to constrain the enforcer’s discretion and provide advance notice to users of which expression is permitted and which not.
Another important limit on content moderation policies that has been recommended by free speech advocates, including the leading digital speech rights organization, the Electronic Frontier Foundation (EFF), is “interoperability”: that the platforms should permit third parties to access their platforms and instill software that will facilitate each user’s specific content preferences. This approach would substitute individual freedom of choice and control on the part of each end-user for the one-size-fits-all standards that the companies now implement at the distribution end.
How can individuals and communities promote civil discourse and respectful dialogue in an era of polarization?
Every individual and every community group can have a positive – or negative – impact on civil discourse and respectful dialogue. Public opinion polls consistently show that the large majority of Americans – all across the political spectrum and in every demographic group – seek to overcome polarization, and welcome opportunities to engage civilly and respectfully with others, including those with different backgrounds and perspectives. Many initiatives have been taken, by pre-existing and new institutions and organizations, to teach skills for constructive engagement across differences, and to and provide opportunities for implementing and developing those skills. For example, universities have instituted courses, as well as creating whole new programs and departments, on point. New organizations that have been formed for these purposes include “Better Angels” and “Bridges.” Many institutions provide pertinent online resources that are publicly accessible, including exercises for enhancing civil discourse in a range of settings, from family dinners to community meetings.
One prominent theme throughout the writings about promoting respectful dialogue is the importance of active, open-minded, and empathetic listening. Experts concur that too many of us tend to listen to a dialogue partner not so much in a good-faith effort to understand that person’s perspective, but rather in a defensive or even aggressive mode, focusing on framing our rebuttals. Attitudes that are commonly encouraged to counter this stance are curiosity and compassion: we should be eager to understand not only what the dialogue partner’s perspective is, but why – i.e., what personal experiences led to that perspective; and we should be compassionate toward the person as a fellow human being, giving that person the benefit of the doubt and presuming that the perspective reflects positive intentions.
Having had constructive debates with countless opponents of countless civil liberties measures that I have supported throughout my adult lifetime, I have learned that if we dig deeply enough, we all share the same general goals – including those that underlie our Constitution and system of government – even though we may disagree strongly about the most appropriate means for implementing them. For example, even people who disagree vehemently about whether race-based affirmative action is a constitutionally permissible or desirable measure no doubt strongly agree that equality under the law is an essential value; proponents of affirmative action believe it is consistent with – and even necessary for – such equality, whereas opponents believe that it is inconsistent. Without minimizing the significance of our disagreements, we also should not overlook the significance of our agreements.
How would you respond to critics who argue that free speech laws are too extreme and give too much protection even to controversial speech?
Modern First Amendment law – which the Supreme Court has been developing and enforcing since the second half of the 20th century – has drawn the appropriate line between protected and unprotected speech, consistent with principles that are also enforced in many other legal systems, including under UN treaties. This modern First Amendment law embodies universal, timeless principles that have been advocated throughout history and around the world, as discussed in Jacob Mchangama’s 2019 book, Free Speech: A Global History from Socrates to Social Media.
The key standard is often called “the emergency test.” It focuses on the context in which speech occurs, not only its content. Under this test, the government may restrict speech only when necessary to avert an emergency: when, in light of all the facts and circumstances, the speech directly, imminently causes certain specific harm. The Supreme Court has defined several subcategories of speech that satisfies this general emergency standard, which would encompass much hate speech, disinformation, and other controversial speech. Since these subcategories of unprotected speech are defined not solely by the speech’s content, but also its context, the inquiry is very fact-specific, turning on all the facts and circumstances in which the speech occurs.
Examples of such contextually-defined unprotected speech categories, which apply to much hate speech and other controversial speech, include: intentional incitement of imminent violent or lawless conduct that is likely to actually happen imminently; a “true threat” – when the speaker targets an individual or small group of individuals and intends to instill a reasonable (i.e., objective) fear that the targets will be subject to violence; and targeted harassment or bullying – when the speaker intends to and does objectively interfere with targeted individuals’ freedom of movement and privacy. Examples of such contextually-defined unprotected speech categories that apply to some false speech – i.e., “dis/misinformation” – include: defamation, fraud, and perjury.
To be sure, even speech that doesn’t satisfy the emergency standard can well be harmful and dangerous; it can indirectly, potentially lead to some future harm. However, experience has shown that it’s even more harmful and dangerous to give the government the increased discretion to punish speech that lacks the tight and direct causal connection to harm that constitutes an “emergency.” Government consistently and predictably has used such discretionary power to disproportionately punish expression that it disfavors, including speech that criticizes government policy or officials, and speech by/on behalf of members of minority groups. For example, experience has shown that even hate speech laws that are designed to benefit traditionally marginalized minority groups have been disproportionately enforced against the speech of these very groups. That’s why many minority group leaders and human rights activists, in the US and countries world-wide, oppose punishing hate speech that doesn’t satisfy the emergency standard. I quote many of these experts in my 2018 book HATE: Why We Should Resist It with Free Speech, Not Censorship.
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