Most citizens in the United States take the First Amendment guaranteeing freedom of speech as a source of patriotic pride. We have been taught that all speech is protected. Bad speech is overcome with good speech. No matter how much harm speech inflicts, when the First Amendment is in question, the Supreme Court feels it is its duty to defend all speech.
Thane Rosenbaum, a lawyer, novelist and Distinguished University Professor at Touro College, disagrees. In his informative and highly readable book, “Saving Free Speech … from Itself” (Fig Tree Books), he explains how many of our assumptions about freedom of speech and the law are either incorrect as a matter of history or rest on a thin scaffolding of flawed reasoning. At the same time he shows there are many instances where America is shutting down free speech. In Rosenfeld’s view the time has come to save free speech from itself. His book deserves serious consideration in our current political and educational climate.
I must admit to being surprised to learn how little I understood the First Amendment. The Founding Fathers implicitly assumed free speech to mean that the government could not suppress any expression against the government, nor could private individuals be coerced into propagating government propaganda. In other words, free speech was initially a buffer against dictatorship and limited to freedom from government control. In 1919, this changed with Justice Oliver Wendell Holmes Jr.’s stirring dissent in Abrams v. United States, which won over the American public by arguing that restraints on private speech were permissible only when speech constituted a “present danger of immediate evil or an intent to bring it about” — essentially, the “don’t shout fire in a crowded theater” test.
As Rosenbaum shows, free speech protection for private individuals is now used to violate people’s privacy and dignity. He describes how in 2011, the Supreme Court, in an 8-to-1 decision, overturned a jury verdict against the Westboro Baptist Church. The church set up a protest at the funeral of Marine Lance Cpl. Matthew Snyder, chanting slurs against gays and holding up signs reading “God hates America” and “Thank God for dead soldiers.”
Heartbroken by the fiasco of a funeral, the soldier’s father sued. The 8-1 majority set aside all consideration for the family, piously invoked the right to free speech and further ordered that Snyder pay the church’s $16,000 in costs.
In other instances, Rosenbaum shows how the First Amendment is used to protect hate speech. Holocaust deniers and KKK members as well as possibly more benign flat earth and fake moon landing believers have all advanced their agendas under the umbrella of free speech. And most alarmingly he gives examples of how it is used to protect potentially fatal substances. Purveyors of, say, fake coronavirus cures and treatments can be sued on product claims, but anybody can get up on a street corner and make any claim that they want.
The coronavirus outbreak has also reminded us of the necessity of free speech as the Founding Father’s defined it. Dr. Li Wenliang, the Wuhan ophthalmologist who early on tried to warn the Chinese medical community about the virus’ potency, was forced by Communist Party authorities to recant his “false comments.” How many lives might have been saved if his speech had been free.
Dr. Li’s warning is exactly the kind of free speech the First Amendment was trying to protect. Rosenbaum shows, however, that today’s free speech is too often serving a different function. He writes: “Here is what the First Amendment should never be called upon to protect: groups of nativists shouting ‘Muslims Go Home’; neo-Nazis marching through a hamlet [of] Holocaust survivors … ; burning crosses on the lawns of African Americans; showing up to a military funeral … to make one’s hatred of homosexuals plainly known. They are, in fact, neither ideas nor debates. They are orgies of hate that amount to non-speech. … Let’s stop pretending we cannot tell the difference.”
While this is not an explicitly Jewish book, Rosenbaum’s exploration of the harm caused by current applications of free speech will resonate with Jewish readers. His arguments about human dignity and free speech echo within the biblical notion of “the image of God.” Likewise he shows how Talmudic dictates that compare slander to physical harm and even death are backed up by modern scientific research that demonstrates that false speech can cause physical harm.
In an era in which American society has become radically polarized, Rosenbaum sets out to bridge the liberal-conservative divide, at least when it comes to permitted speech. He asks us to address some of our core ideas about American ideals. Not a bad thing to do when the government is ordering us to stay “sheltered in place” for the good of all Americans.
Scott A. Shay is chairman and co-founder of Signature Bank of New York and is the author of “In Good Faith: Questioning Religion and Atheism” (Post Hill Press, 2018).