By Andy Carr
I am a freelance writer-editor and rising second-year PhD student studying Politics at The New School for Social Research in New York. My research and writing focus mostly on the intersections of constitutional law, politics, race, and class -- how legal, financial, and other forms of power are distributed in contemporary American society. In some academic work, this is explored via free speech doctrines under the First Amendment (as in the essay submission, detailed below). Elsewhere, I have looked at commercial speech regulation, executive power over immigration policy, and patterns of race-based exclusion in Virginia's independent cities since the 1950s. Above all, I aim to upend the conventional wisdom embedded within law and politics research, especially longstanding faulty assumptions, and the various blindspots related to race or gender.
I wanted to share this specific piece because it engages the controversial open letter published in Harper's Bazaar yesterday (July 7), but from a different perspective than most efforts to debunk it found on social media or other magazines. I start by taking the authors/signatories' claims about free speech and speech suppression seriously. From that view, the argument collapses on its own terms: if we take the First Amendment and its history seriously, in other words, we have to assess power dynamics and, above all, the roles of state actors, like legislators and police. Those are totally absent from the letter's arguments. Once they are considered, the house of cards collapses. I hope it's cogent and compelling, and if selected, I hope it's just the first of several. Thank you and best wishes in everything.
“The free exchange of information and ideas,” warn the high-profile signatories of “A Letter on Justice and Open Debate,” to be published in the upcoming October issue of Harper’s, “is daily becoming more constricted.” Free speech, it seems, is under siege. It faces widespread “intolerance of opposing views,” zealous “public shaming and ostracism,” oversimplification to the point of “blinding moral authority,” and real-world consequences for targets of outrage: “hasty and disproportionate punishments,” fired editors, canceled book contracts, and the chilling of expression in many corners.
The elegiac letter cites no specific cases since, presumably, the intended audiences will rattle off the obvious ones: speakers protested against or shouted down on college campuses, James Bennet’s resignation from from the New York Times, and so on. It also elides any specific requests of editors, academics, reporters, or any other identifiable group. Rather, the letter simply calls for “a culture that leaves us room for experimentation, risk taking, and even mistakes,” one which “preserve[s] the possibility of good-faith disagreement without dire professional consequences.” In other words, the whole of society must come to defend a modern consensus on free speech absolutism in toto.
The open letter’s signers include many names familiar to readers of, say, the Timesor The Atlantic, such as David Brooks, or George Packer. It also includes eminent professors (Andrew Moravcsik of Princeton and Ronald S. Sullivan Jr. of Harvard Law); writers Margaret Atwood and J.K. Rowling; even left-leaning columnist Katha Pollitt, and the anarchist-aligned linguist and New Left icon Noam Chomsky.
This muddle is too familiar. The thoroughly challenged concept of “cancel culture” and the vague laments surrounding illiberal “identity politics” in American society have flooded establishment publications for several years now. But at root the broadest issues concern the meaning and preservation of our First Amendment. In that sense, “Justice and Open Debate” fails not just on its own theoretical and ideological grounds, but also in its utter disengagement different speakers’ actual power, access, and reach.
The overarching argument implicitly embraces a widely held view of speech as a “marketplace of ideas,” a metaphor made famous by Justice Oliver Wendell Holmes’ dissent in Abrams v. United Statesover a century ago. In fine, this market reifies how free speech rights enable society to search for truth: by opening the doors to the broadest possible range of ideas, the best among them have a better shot at rising to the top, gaining currency across society at large. That’s not to say badideas inevitably perish, just that the goodones—the true and, hopefully, the just—will succeed.
In its original form, the metaphor was just that – a heuristic device. A century later, flowing from developments in the law and economics movement and from right-wing think tanks, the metaphor has evolved into a powerful, literalized myth.
Commonly understood, Americans today typically see free speech as their right to say anything they want, in any format, at any time, without interference from anyone whatsoever. Legally, of course, that’s hardly the case. For one, unconstitutional censorship by the state is not the same as private citizens’ also-protectedright to oppose speakers or their specific utterances. Further, as the critic of First Amendment absolutism P.E. Moskowitz explained in The Nation, there’s “the fact that the state is itself suppressing speech in countless ways” already anyway. Referring to the tensions between free speech and other rights, Moskowitz continued,
We have already decided, for example, that private property rights supersede speech rights: I cannot protest in a Walmart without being kicked out or arrested, and I can even be shot if I decide to protest in someone’s home in a Stand Your Ground state.
Whereas Moskowitz cites other instances of burdened speech—from pervasive “time, place, manner” regulations of even permitted protests to police crackdowns at 2017 Women’s Marches or Standing Rock—our apprehensive letter-writers all but erase state actors from their argument. That the letter’s digital publication in July 2020 coincided with another round of reports showing egregious police violence against members of the press amid nationwide protests makes the omission particularly curious. Individuals targeted by police in Dallas, New York, Tulsa, and elsewhere are colleagues of letter signatories, but any mention of their abuse and arrest by actual agents of state power are nowhere to be found. If a speech-related transgression exists outside inboxes or Twitter threads, it must be a separate concern.
Finally, basic concepts of great importance to actually exercisingspeech rights—money, social standing, and power, certainly their distributions in American society—go unmentioned. As writers, journalists, and social media users pointed out, the letter’s individual signatories sit in plum positions at the same time they ignore all such variables. They sit atop mastheads; direct think tanks; run academic departments and journals; enjoy tenure at some of the world’s most elite universities. By definition, then, whenever these and other public-facing, powerful individuals choose to punch, often they have nowhere to aim but down. To put a finer point on it, the signatories ignore the same toxic, exclusionary power structure they benefit from and oversee.
The uniformity of these individuals’ privileged stations might be matched only by their longevity in some the most-precarious American labor markets, academia and both print and digital media, especially. They all retain cossetted jobs; they consistently maintain prodigious output – even years after penning at-best questionable pieces.
(For a quick sample, consider Caitlin Flanagan’s 2006 article, where she referred to oral sex as the “province of prostitutes,” worrying that the “nice kids” of her friends could be “behaving like little whores whenever they got the chance.” Another case, involving truly historic bad predictive ability, would be political scientist Francis Fukuyama’s announcement of the “End of History” and ultimate triumph of liberal democracy, an essay and book pilloried relentlessly in the years since they were published. These are far from the most-controversial figures among the signers.)
Meanwhile, academic and media job markets have been crushed by the coronavirus pandemic. Cases abound: in April, the Cleveland Plain-Dealer eliminated nearly all of its union staff; in May, theDallas Morning News reported another annual decline in revenue after slashing staff pay by 3 to 17%; and even high-profile, national outlets like VICE have cut hundreds of positions. McClatchy, “the nation’s second largest local news company” and owner of dozens of major papers from Raleigh to Sacramento, has been put up for auction, just months after its bankruptcy filing earlier this year.
This media-sector cataclysm follows years of similarly grim headlines – and it hits writers from traditionally marginalized communities especially hard. For months, Black writers—especially women, queer, and trans writers--havesharedstories of sudden, crippling losses, both freelancer gigs and full-time staff jobs. (These challenges follow the collapseof iconic magazines for Black audiences, like Ebony and Jet, just last year; they also coincide with horrifying, disproportionate health and economic losses among Black and brown communities from COVID-19. No mention of these matters in the open letter, of course.)
If we’re to take the First Amendment’s guarantee of free speech seriously, it’s time to move on from the unserious debates that have absorbed too much attention, too many resources. In sectors ravaged by decades-long structural changes and the ongoing pandemic, that we are seeing now the least-resourced groups and individuals claim space and challenge injustices is a boon to the aims of free speech rights, not a threat. That mass movements have emerged, grown, and consolidated alongside these shifts underlines the latent promise of opening up our “discourse,” and shows real potential to bring transparency and accountability where so little ever existed before.
Similarly, if we take even the overwrought “marketplace” metaphor seriously, the very episodes underlying the Harper’s letter are evidence of a marketplaceworking. Media and popular agitations from below and from the periphery—among less-visible writers and academics, readers, the public at large—have as much potential to strengthenfree speech, to improve America’s collective searching for truth, as there is potential for damage. Truth runs deeper than rote observable facts; to matter, truth must encompass interpretive issues, like cause and effect, as well.
On such an account, those closest to the social, financial, and political powers-that-be offer can offer only platitudes – a transparent effort to reassert control.
Thankfully, we have other voices.