P.E. MOSKOWITZBOLD TYPE BOOKS, 2019272 PP.; $28.00
Words like controversial and provocative are overused. When you read or hear that so-and-sos stand-up comedy is controversial, thats usually the culture-war commentariat wishing that reaction into being rather than actually describing a pre-existing reaction. Which is why for every one person who finds it controversial, there are a thousand people whove been convinced that many people find it controversial and that such a reaction is something to be angry about. Of course, the politics of controversy is a means of distraction. If youre thinking and talking about whether so-and-sos stand-up is controversial, you arent thinking and talking about (say) healthcare or food regulation or employee-employer relations. Likewise, when you read or hear that such-and-such speaker is provocative, that often means they say things like feminists are ugly, blacks are naturally stupid, and the poor deserve their misery. These things have been said for decades and centuries. I suppose they do provoke reactions, especially among young people who havent heard such things yet, and so in a narrow sense are provocative. But the word is mostly a media euphemism; a way of seeming objective and even-handed. In other words, a way of obscuring.
P.E. Moskowitzs new book, The Case Against Free Speech, has what many would call a provocative (even controversial) title, although, like the controversial stand-ups and provocative speakers, upon investigation its actual substance is rather tame. On page one Moskowitzclarifies that his book isnt anti-free speech but only anti-the-concept-of-free-speech (meaning he doesnt think free speech exists or ever has) and that he doesnt favor censorship laws that prohibit fascist and racist speech.
Moskowitz gives two reasons for why he thinks free speech as a concept [is] meaningless. First, because with inequalities of power and wealth, the notion that all of usrich, poor, and in-betweenshare and enjoy a common individual liberty like free speech is political mumbo-jumbo. The rich spend hundreds of millions of dollars every year so their political desires are heard; the rest of us can be fired for speaking out of line at work. Those without power are harassed and surveilled by the police, and this harassment and surveillance has its effects on peoples willingness to speak freely.
Moskowitz points to his talks with Black Lives Matter activists who were harassed and surveilled by the police for months before a judge ordered the police to stop (or, more precisely, to stop being so obvious), as well as Standing Rock protesters who, while encamped, were surrounded by police, spied on overhead by drones, tracked by private security companies, and had their camp infiltrated by informants. The Standing Rock protest was most notable not for its size or duration but for the scale of the states response. Protesting the construction of a single pipeline, the state responded with extreme force and total surveillance.
In truth, more harm is done in a single executives meeting (and a hell of a lot more at a single meeting of some dark money political foundation) than was done by those protesters. And yet those meetings dont have drones buzzing overhead. No FBI infiltrators. The powerful speak freely and the rest of us suffer in silence (or will be made to). While the company CEO golfs with the attorney general and talks about easing up on enforcement of labor laws, the entire workforce is fired off for talking amongst themselves about unionizing or just joking about how much of a hellhole working there is.
A concrete instance of this occurred recently when Koch Foods settled a class-action lawsuit brought against the company by some of their food-processing workers in Mississippi; a few months later, ICE raided the companys food-processing plants and arrested almost 240 workers. The obvious lesson for migrant workers being: speak up and you run the risk of getting deported.
The second reason Moskowitz gives for thinking free speech is conceptually meaningless is that we already censor speech in favor of other values, such as privacy, property rights, and even economic efficiency. A bank lying to you about the interest rate on a loan, a company using a celebrity look-a-like to sell products, a tapped phone conversation, an emergency medical responder filming the person theyve saved, starting a company called Facebookthese are all forms of speech (or at least attorneys have tried to argue they are), but the Supreme Court has ruled that none of them are protected by the First Amendment.
The criminalization and/or prevention of all these things is effectively censorship; the state is telling you that you arent allowed to speak in certain places or say certain things. (In cases of professional speech, such as equal protection laws for home ownership, the state literally mandates that you say certain things, otherwise you cant conduct business in that industry). But these laws arent seen as censoriousor as attacks on our culture of free speechbecause theyre generally recognized as protecting other fundamental values. As Moskowitz mockingly puts it, everyone would look sideways at the person who breaks into his or her neighbors houses to berate them, then defends their actions by saying, No interest of home ownership outweighs the rights of someone to come into your house and yell at you. The value of dominion over your own home is weighted above your neighbors right to be heard. The issue clearly isnt between free speech and censorship, then, but between free speech and other values. Which raises the question: How should we decide which value wins over the others?
Moskowitz uses the case of Nazi Socialist Party of America v. Village of Skokie (1977) to illustrate how the false pretense of free speech as an absolute value is used by bigots and fascists. In 1976, the Nazi Socialist Party of America wanted a permit to march in the majority Jewish neighborhood of Skokie, Illinois. The village tried blocking the rally by passing ordinances forbidding events where participants planned to wear military-style outfits and by requiring all rallies to provide $350,000 in insurance money beforehand. Famously, the ACLU defended the fascists in courtin response the ACLUs Illinois chapter lost a quarter of its membershipand eventually won them the right to march through Skokie. The rally never happened. Frank Collin, the leader of the Nazi Socialist Party, said he was just fighting for free speech for white Americans (yes, fascists were already using this shtick in the 1970s), and with the Supreme Court victory there was no need to actually go through with the rally. Of course, many suspected the rally never happening had less to do with that and more to do with the Jewish Defense League telling Collin that if he came into Skokie theyd make sure he left in a body bag.
Like fascist rallies today, when the Nazi Socialist Party did march around Chicago they got a police escort. Why exactly? As a Chicago columnist wrote at the time:
If I wanted to stand outside Wallys Polish Pump Room this Saturday and shout that everybody who eats Polish sausage is a pig, I suppose that would be my constitutional right. At least the ACLU would probably think so. However, I dont think I should expect the city to give me a police escort when I go there.
I suspect that if I and few of my friends walked around rich neighborhoods with a fake guillotine chanting The capitalists will not divide us, the only police escort wed be getting is one to the station (handled with as much care as the Jewish Defense League wouldve given Collin and his fascist stooges).
Radical protests get police violence; fascist protests get police escorts. Some of the reasons for this are probably sinister, but one that isnt has to do with the different tactics of the two protest groups. Radical protests are usually in sympathetic places; theyre done in order to rally mass support for something. Fascist protests, on the other hand, are usually in hostile places; theyre there to invoke a response so they can play the victim later. I agree with those who say anti-fascists should hold rallies of their own rather than counter-protest fascist ones. But I also cant blame communities like Skokie and groups like the Jewish Defense League for pronouncing that if you come to provoke a reaction you will absolutely get one. The least the rest of us can do is not fall for the fascists playing the victim afterward or pretend that their rallies have anything to do with free speech.
The Case Against Free Speech isnt very deep in analysis or original in thought. Anyone whos read literary theorist Stanley Fish will already be familiar with most of the books anti-the-concept-of-free-speech premises. The Case Against Free Speech is, however, a much-needed, easy-to-read primer on a subject that seems to be given unlimited attention but zero thought. Establishment press outlets run hundreds of op-eds a year on the crisis of free speech just because their columnists are the laughing stock of Twitter. When right-wing media isnt reporting on a migrant worker getting pulled over for drunk driving or a black man in Chicago caught stealing a refrigerator, theyre covering some college scandal like Alice Walkers books being taught in a class outside the African-American Studies department. Koch-coordinated political foundations have spent hundreds of millions of dollars over the last thirty years making it seem as if free speech in academia is the defining political issue of our time, creating a network of organizations and websites like College Fix and Campus Reform that encourage college students to spy and snitch on one another for being too politically correct, then trickling these stories (and sometimes just directly paying for them to be published) into the media.
At one point, Moskowitz asks, Whats the return on investment for billionaires spending so much money on free speech and political correctness? His answer is that its their way of controlling universities. Similar to fascists using free speech as a smokescreen for their politics, billionaires use political correctness as a smokescreen for their interests. While theres definitely some truth to this, the rich already effectively control universities through donations and by sitting on college boards. The board of higher education in most states is a whos who of owners and executives. At George Mason, the Koch Brothers had a say in the hiring and firing of professors.
As I wrote at the beginning of this review, I think most of the debate on free speechpolitical correctness, cancel culture, trigger warnings, etc.is just a distraction. A way of controlling how and what people think about when they think theyre thinking about politics. A sort of anti-politics that distracts people so nothing happens. Thats why the PC hysteria is identical to what it was thirty years ago. We argue amongst ourselves about college speakers and stand-up comedians while the rich do whatever they want on everything else. Moskowitz is right that in an unequal society, free speech is an impossible ideal. Which is just another reason to fight for a society more equal in wealth and power.
- First Amendment rights in the 2010s - UConn Daily Campus - December 8th, 2019
- State argues there is no First Amendment issue in Michelle Carter case - The Sun Chronicle - December 8th, 2019
- Zick's new book examines the First Amendment in the Trump era - William & Mary News - December 8th, 2019
- First Amendment Loses as Pipeline Industry Scores Another Win in Wisconsin - In These Times - December 8th, 2019
- Mike Huckabee, Florida beaches, the First Amendment and Twitter: The former presidential hopeful tries to sile - Sun Sentinel - December 8th, 2019
- A Phone-Sex Memoir Tests the Limits of Free Speech Rights - Bloomberg - December 8th, 2019
- Texas wants teacher Georgia Clark reinstated after firing over tweets - The Texas Tribune - December 8th, 2019
- Gun Rights Case Is First Before The Supreme Court In A Decade - NPR - December 8th, 2019
- Curt Levey: Trump impeachment drives Democrats' love of Constitution here's how they really feel - Fox News - December 8th, 2019
- The First Amendment is the First Line of Defense - AmmoLand Shooting Sports News - November 30th, 2019
- Want to protect First Amendment? Then maintain Second Amendment - theday.com - November 30th, 2019
- Inmate video visitation and the First Amendment: 3 landmines to avoid - CorrectionsOne - November 30th, 2019
- The Supreme Court is about to hear its biggest gun-control case in a decade - CNBC - November 30th, 2019
- Free-speech controversies not exclusive to the UI - Champaign/Urbana News-Gazette - November 30th, 2019
- The Race 2020 How terrorism started and how it's evolved Scripps National 9:55 AM, Nov - 10News - November 30th, 2019
- The holiday season is a lot bigger than you think - Herald Palladium - November 30th, 2019
- Ava DuVernay and Netflix Formally Respond to When They See Us Lawsuit, Claim Dialogue Is Protected Under First Amendment - The Root - November 30th, 2019
- Yes, Mr. Pokoski, there really is a Santa Claus(e.) - Seacoastonline.com - November 30th, 2019
- Does the First Amendment Hold at the Border? - The Atlantic - November 25th, 2019
- Nonwhites are the only high school students whose support for First Amendment has fallen: survey - The College Fix - November 25th, 2019
- Artful Teachers Teach First Amendment Thinking - Forbes - November 25th, 2019
- The First Amendment and Government Property: Free Speech Rules (Episode 8) - Reason - November 25th, 2019
- Activists say new harassment law tramples on the first amendment' - WXXI News - November 25th, 2019
- Government Tries to Regulate Drug Prices by Violating the First Amendment - Cato Institute - November 25th, 2019
- Judicial appointment a foe of the First Amendment - Daily American Online - November 25th, 2019
- 'No Safe Spaces' Documentary Warns of Dangers Facing First Amendment Rights in America - Accuracy in Academia - November 25th, 2019
- Indian Constitution: First amendment, and the last - Deccan Herald - November 25th, 2019
- Nobel laureate Smith to speak on boycotts and First Amendment - Columbia Daily Tribune - November 25th, 2019
- Florida Man Friday Saves the First Amendment | VodkaPundit - PJ Media - November 25th, 2019
- BU protesters were exercising their First Amendment rights - Binghamton University Pipe Dream - November 25th, 2019
- Happenings on the Hill - Preston Hollow People - November 25th, 2019
- Governor of Alaska: My state will be the first to comply with SCOTUS' new union ruling. - USA TODAY - November 25th, 2019
- Overington recognizes Edgars with First Amendment Recognition Award - Martinsburg Journal - November 25th, 2019
- Smith County School System sued over first amendment violations, promotion of religion - WBIR.com - November 25th, 2019
- Mary Beth Tinker to high school journalists: It's your job to speak up on behalf of others - Student Press Law Center - November 25th, 2019
- Florida education news: First Amendment rights, flu shots and another superintendents struggles - Tampa Bay Times - November 16th, 2019
- First Amendment rights are not a one-way street - The Bozeman Daily Chronicle - November 16th, 2019
- First Amendment conference explored diminishing local news as a 'crisis of democracy' - The Daily Tar Heel - November 16th, 2019
- The 'Evil' First Amendment - The American Conservative - November 16th, 2019
- First Amendment website launching by end of November - University Star - November 16th, 2019
- LTTE: We all have business exercising our First Amendment rights - Rocky Mountain Collegian - November 16th, 2019
- "The Case Against Free Speech: The First Amendment, Fascism, And The Future Of Dissent" - WAMC - November 16th, 2019
- Trump Attack on Envoy During Testimony Raises Charges of Witness Intimidation - The New York Times - November 16th, 2019
- Facebook has a political fake news problem. Can we fix it without eroding the First Amendment? - NBC News - October 27th, 2019
- The Panhandling Problem: When public safety clashes with the 1st Amendment - WCJB - October 27th, 2019
- Can a black high school guard be fired for quoting the n-word? | TheHill - The Hill - October 27th, 2019
- Liz Cheney Calls Out Dems' New House Bill Intended to 'Circumvent the First Amendment' - Townhall - October 27th, 2019
- Mitch McConnell slams election-security bill as 'transparent attack on the First Amendment' - The Washington TImes - October 27th, 2019
- Are Corporate Employees Protected by the First Amendment? - IPWatchdog.com - August 25th, 2017
- NAACP asks for meeting with Goodell over Colin Kaepernick's First Amendment rights - CBSSports.com - August 25th, 2017
- The ACLU was practicing a core First Amendment duty - Washington Post - August 25th, 2017
- Letter: The right has hijacked the First Amendment to preach hate ... - INFORUM - August 25th, 2017
- Lawyer who objected to mandatory bar's PAC contribution loses First Amendment appeal - ABA Journal - August 25th, 2017
- LA Times: Restrict the Second Amendment at First Amendment rallies - Hot Air - August 25th, 2017
- Is advocating suicide a crime under the First Amendment? - OUPblog (blog) - August 22nd, 2017
- Letter First Amendment is a fundamental building block of our society - Petoskey News-Review - August 22nd, 2017
- How far do the First Amendment's protections go when it comes to hate speech? - The San Diego Union-Tribune - August 20th, 2017
- First Amendment in Peril? - City Journal - August 20th, 2017
- Letter: Peculiar First Amendment interpretation - MetroWest Daily News - August 20th, 2017
- Police must act fast to protect First Amendment rights: Robert Shibley - USA TODAY - August 18th, 2017
- Podcast: Trump, Twitter and the First Amendment - Constitution Daily (blog) - August 18th, 2017
- How groups use 'First Amendment' permits for protests at National Parks - ABC10 - August 18th, 2017
- Last weekend's violent protests prompt First Amendment conversation - WBKO - August 18th, 2017
- Equality, Justice and the First Amendment - ACLU (blog) - August 18th, 2017
- Between the lines: Cops caught in the First Amendment war zone - Police News - August 18th, 2017
- Theres no hate speech exception to the First Amendment - The ... - August 16th, 2017
- First Amendment banned from DC Metro literally! - Washington Post - August 16th, 2017
- There's No 'Nazi' Exception to the First Amendment - National Review - August 16th, 2017
- FIRST AMENDMENT: How far does it go? - Evening News and Tribune - August 15th, 2017
- Why the First Amendment won't protect Charlottesville white supremacists from being fired - MarketWatch - August 15th, 2017
- The First Amendment on the Grounds in Charlottesville - Lawfare (blog) - August 15th, 2017
- Can a Court Arbitrarily Conclude That 'Security' Overrules the First Amendment? - Reason (blog) - August 15th, 2017
- March on Google: Self-proclaimed 'First Amendment supporters' to ... - Pittsburgh Post-Gazette - August 15th, 2017
- Militiamen came to Charlottesville as neutral First Amendment protectors, commander says - Washington Post - August 14th, 2017
- Editorial, 8/13: Court strikes right balance on Westboro ruling - Lincoln Journal Star - August 14th, 2017
- Beyond the First Amendment - Washington Times - August 14th, 2017
- Liberals need to stop messing with the First Amendment - Washington Examiner - August 13th, 2017
- Jeffrey Lord: 'CNN caved on the First Amendment' when it fired him - Fox News - August 13th, 2017
- First Amendment lawsuits pile up against governors who block ... - WJLA - August 13th, 2017
- DC's transit agency rejected ads touting the First Amendment (really) - Ars Technica - August 11th, 2017