Disturbing, even inaccurate, speech must be protected
I am strongly pro-life and have strongly opposed former president Donald Trump. Equally strongly, I hold that abortion rights advocates should not be prevented from demonstrating outside the homes of Supreme Court justices, and that Elon Musk is right to say Trump should not be banned from Twitter.
It is troubling that, increasingly, advocates across the political spectrum are abandoning the insight of Thomas Jefferson’s first inaugural address that “error of opinion may be tolerated, where reason is left free to combat it.” Lacking confidence that criticizing error will be adequate to suppress it, some now urge censoring it.
On one side, there is an effort to ban books and such topics as critical race theory that might be “divisive” and make primary and secondary students uncomfortable. On the other side, some argue that students — especially in colleges — must be protected from “microaggressions” and given “trigger warnings” to protect them from emotionally disturbing material. And many are convinced that the effectiveness of social media platforms in spreading disinformation calls for more and more censorship to protect those who would be led astray.
In the 1988 case of Frisby v. Schultz, the Supreme Court regrettably upheld an ordinance — motivated by picketing at the residence of an abortion provider — that banned picketing of individual homes, ruling it was justified by “protection of the unwilling listener.” The court wrote, “The devastating effect of targeted picketing on the quiet enjoyment of the home is beyond doubt.”
Indeed, hearing opposition to one’s beliefs and actions is uncomfortable. It is disturbing to have to deal with challenges to the orthodoxy of whose truth one is convinced. But when we are “protected” from challenges to what we think we know, our intellects stagnate in the bubble of agreed beliefs and assumed facts. To paraphrase John Stuart Mill, we risk preferring the life of a contented fool to the life of a dissatisfied Socrates.
But such protection of undisturbed conformity can prevent or delay the righting and reversal of great wrongs.
Before the Civil War, Southerners blocked abolitionist tracts. Nothing could be permitted to disturb the tranquility of the enslavers. In Russia today, even calling the invasion of Ukraine a “war” can send one to 15 years in prison.
Jarring us out of our complacency, forcing us to confront the consequences of our views and actions, upsetting our equilibrium, is essential to making us question and rethink what we believe and what we do. Of course, those who challenge our views and actions are not always right, and what we have believed and done is not always wrong. But the very fact of having to confront opposition and think through the merits and demerits of contrasting arguments can ultimately increase our understanding of the basis for their validity.
Nor can we be confident in the judgment of those who would decide from what to “protect” us. The Roman poet Juvenal asked: “Quis custodiet ipsos custodes?” — “Who will guard the guards themselves?” Who in power, however sincere and well-motivated, can we be sure has the insight to differentiate — accurately and free of bias — truth from disinformation, right beliefs from wrong ones, so as to allow the one and censor the other? And who can be trusted to do so without being tempted to use their power to advance their own interests and suppress opposition?
In an August 1941 broadcast addressing Europeans in lands occupied by Germans, Winston Churchill urged, “Make them feel even in their fleeting hour of brutish triumph that they are the moral outcasts of mankind.” Residential picketing is similarly designed to make its targets uncomfortable, and to publicize their alleged wrongdoing in the hope that their fellow citizens will join in the denunciation. That such pressure could cause the targets to shrink from doing what is right is the cost of the possibility that it could induce them to stop doing wrong.
Assuredly, homes can appropriately be protected from attack and even trespass, and noise ordinances might perhaps appropriately limit decibels to a greater extent in a residential neighborhood than outside the Supreme Court. Similarly, as the 1969 Supreme Court held in Brandenburg v. Ohio, speech on social media or elsewhere that is “directed at inciting or producing imminent lawless action” can be prohibited. But we limit peaceful picketing and public speech — even speech that is offensive and inaccurate — at our great peril.