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Should “Offensive” Speech Be Protected by Law?

By Charles Snow posted on:
October 26, 2020

Georgia Gwinnett College officials twice stopped then-student Chike Uzuegbunam from peacefully sharing his Christian faith with other students.

The second time, while passing out literature and speaking with interested students about his faith, Chike was stopped by two campus police officers. They said someone had complained about his speech. If he continued speaking, the officers told him, he would be disciplined.

“All I wanted to do,” Chike said, “was to share with other students the faith that has changed my life.”

Chike contacted Alliance Defending Freedom, and we filed a lawsuit against the college on his behalf—a lawsuit which is now before the U.S. Supreme Court.

Incredibly, the college claimed that his speech should receive no constitutional protection. Georgia’s attorney general, who represented the school, argued in a brief that Chike’s “open-air speaking arguably rose to the level of ‘fighting words,’” speech the First Amendment does not protect.

While George Gwinnett ultimately dropped this argument, as well as the policy that led to Chike’s silencing, it raises an important question: Should potentially offensive speech be protected by law?

The right to speak freely is a bedrock of American liberty. It underpins the fundamental right to religious liberty. Without free speech, there can be no religious freedom.

Today free speech faces a renewed debate and growing challenges. A recent Cato Institute survey revealed that more than 60  percent of Americans are scared to share some of their political beliefs. More disturbingly, a survey conducted by the Foundation for Individual Rights in Education (FIRE) showed that 21 percent of students at Ivy League schools supported (at some level) using violence to shut down speech on campus.

These results expose the effects of an intensifying cancel culture movement, which seeks to silence views that social justice warriors label “offensive.”

How Does Cancel Culture Respond to Offensive Speech?

More and more Americans have become familiar with cancel culture. It’s characterized by the push to silence and ostracize those who have done or said things that deviate from favored opinion on controversial issues.

Even if it is not strictly illegal, cancel culture’s censorship chills speech and inspires fear. Michelle Goldberg of The New York Times describes this environment as creating “a climate of punitive heretic-hunting”:

If people fear for their livelihoods for relatively minor ideological transgressions, it may not violate the Constitution – the workplace is not the state – but it does create a climate of self-censorship and grudging conformity.

Here’s how it normally goes. Someone says something that upsets the online mob. They label it bigoted, insensitive, or offensive. They call for the person to apologize and renounce the belief. If the offender doesn’t apologize—and sometimes even if they do—the mob calls for the person to be fired. Civility and tolerance are nowhere to be found. Whoever shouts the loudest—or the most—wins. The spirit of the First Amendment is violated.

Cancel culture is the wrong way for free societies to debate tough issues. Americans enjoy strong legal protections for free speech precisely so that the government cannot endorse cancel culture and so that we all remain free to express our views without fear.

Why We Must Protect Offensive Speech

Do you trust the government to be the arbiter on what’s offensive and what’s not? It’s important to protect offensive speech so that the majority does not trample the minority. Today’s consensus shouldn’t be allowed to silence today’s dissenters.

“The First Amendment really was designed to protect a debate at the fringes …. You need a First Amendment to protect speech that people regard as intolerable or outrageous or offensive—because that is when the majority will wield its power to censor or suppress …,” ACLU Legal Director Steven Shapiro has said.

After all, popular speech needs no protection. But the Supreme Court reminded us long ago, when striking down mandates to recite the Pledge of Allegiance, that the “freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom.” Instead, the “test of its substance is the right to differ as to things that touch the heart of the existing order.”

Will some people use this freedom to express troubling ideas or express them in a hurtful way? Of course. But as Chief Justice John Roberts observed, we have chosen “to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

And he was simply echoing what the Supreme Court said in 1949: that the “right to speak freely and to promote diversity of ideas and programs is . . . one of the chief distinctions that sets us apart from totalitarian regimes.” In fact, “a function of free speech . . . is to invite dispute,” and often it “creates dissatisfaction,” “stirs people to anger,” and is “provocative and challenging.” But we protect it because “the alternative would lead to standardization or ideas either by legislatures, courts, or dominant political or community groups.”

And no one who values a free society—where each of us is free to pursue truth, confront error, and seek a more perfect union—wants that alternative.

Join the movement to end cancel culture and ideological blacklisting.

We need to recommit to the principles of free speech and civil discourse. Today, you can help preserve these cornerstones of freedom in American by signing the Philadelphia Statement.

SIGN THE STATEMENT


Charles Snow

Charles Snow

Contributing Writer

Charles is a Tennessee native and lover of books and basketball.


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