"How to Free Speech"

by Lee C. Bollinger

[I have several pet topics, as occasional readers of ROT will probably have discovered by now.  Arts education and arts in the schools is one, writing and teaching writing is another.  But threaded though all of those and other concerns is my devotion to free speech and the freedom of expression, a subject on which I’ve blogged many times now.  “How to Free Speech” by Lee C. Bollinger, President of Columbia University, published on 15 February 2015 in the “Outlook” section of the Washington Post, is a unique discussion of free speech.  I feel it’s ROT’s mission to share such considerations with the readers of the blog in the hope that the ideas contained in them will spread around.]

Americans figured it out just 50 years ago. Columbia University President Lee C. Bollinger explains how the world can follow our lead.

We have been negotiating between the new and the old, the foreign and the familiar, tolerance and censorship forever. But digital communications and global commerce are remaking the world: Last year, there were more than 1 billion international travelers. Some 2.7 billion people around the world are online. Smartphones and satellite dishes are the symbols of our time, pushing people everywhere to demand more control over their futures, greater openness and more responsiveness from governments.

These trends draw previously separate cultures into contact with one another: Turkish soap operas are popular in the Balkans, and Taiwanese animators skewer Scottish secession efforts. But technologies that convene different cultures do not always help them interact peacefully, as the Paris attacks on Charlie Hebdo and the kosher grocery show.

As those tensions rise, governments and reactionary groups resort to nationalism, victimization and suppression to keep foreign or offending speech at bay. The Pew Research Center found that, as of 2011, nearly half of the world’s countries punished blasphemy, apostasy or defamation of religion. Russia has just legislated harsher punishments for those guilty of offending religious sensibilities, and violent protests in Pakistan halted attempts to soften anti-­blasphemy laws. China employs more than 2 million people to monitor online activity and support government censorship, according to the BBC. And last year, the ownership of Venezuela’s oldest daily newspaper, El Universal, changed hands under mysterious circumstances, a move accompanied by a much softer editorial stance toward the government. These salvos against freedom of speech and the press force the question: Can the global society emerging today also be a tolerant one?

To Americans, that debate can feel very foreign, especially when it results in Paris-­style violence. After all, our respect for First Amendment freedoms is one of the few values that still rises above partisan politics.

But in truth, the protections for uninhibited expression in this country are just a half-century old. They were not attained quickly or easily, nor were they simply a product of judicial edict. They took hold because they emerged from larger forces that are visible again today around the world: expanding economic markets, quantum leaps in communications technology and a set of urgent social problems solvable only through previously unavailable levels of concerted action. The way that Americans learned to adapt to changing times, and to tolerate discordant views, shows how others can, too.

Contrary to what most people think, our modern conception of freedom of speech and press is a relatively recent phenomenon — one not fully formed until the 1960s. The first Supreme Court decisions about the meaning of the First Amendment did not come until 1919, and in its debut the amendment did not fare well. World War I and the emergence of Russian communism had spread fear and intolerance in the West: A prominent Socialist, a German-­language newspaper editor and Eugene Debs , a frequent candidate for President of the United States, were convicted of crimes for speech that today would certainly be protected. In the opening case, Schenck v. United States, Justice Oliver Wendell Holmes Jr. authored a unanimous decision upholding Socialist Charles Schenck’s conviction and voiced the memorable (if inapt) analogy that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

But this was only the beginning of America’s halting evolution into a far more tolerant society. A repentant Holmes and his brilliant new colleague, Justice Louis Brandeis, wrote eloquent dissents in later cases that began to steer our jurisprudence in a different direction, leading eventually to Near v. Minnesota, a 1931 decision banning government censorship in advance of publication and establishing the doctrine of “prior restraint,” which later allowed this newspaper to publish stories based on the Pentagon Papers. In 1940, Cantwell v. Connecticut held that an anti-­Catholic message was shielded from state interference intended to protect perceived religious sensibilities from offense.

Progress stalled in the 1950s, amid the Cold War and the witch hunts of McCarthyism. In Dennis v. United States, the court upheld the convictions of 11 Communist Party leaders for advocating the overthrow of the government. In Beauharnais v. Illinois, the court allowed the state to punish the distribution of a leaflet by a white supremacist on the grounds that Illinois’ troubled history provided ample reason for alarm about racial violence. A powerful culture of “states’ rights” preserved a constitutional policy of deference to local control.

All this was about to change. It was common at the time for judges to elevate state libel protections above the Constitution’s guarantee of freedom of speech and the press, inhibiting what many newspapers were willing to publish. In 1964, the Supreme Court overruled one such decision out of Alabama, in New York Times v. Sullivan, and declared the “central meaning” of the First Amendment to be the right of citizens to discuss public issues, including criticism of public officials. In this case involving the civil rights movement, the justices unanimously committed America to a realm of expression in which debate would be “uninhibited, robust, and wide­open.” Sullivan was widely understood, right away, to have established a national norm, and it was followed by numerous decisions expanding on this new sensibility.

But in a broader sense, the court was ratifying sweeping changes that were already turning the United States into a truly national American society (foreshadowing the transition to a global society occurring today). By the time of the Sullivan ruling, 90 percent of U.S. families owned televisions, which had been novelties just a decade or so earlier. The government had constructed an interstate highway system, and air travel was becoming much more common. Regional disparities in per capita income fell, reflecting the emergence of a national commercial marketplace. Uninvolved white Northerners contended for the first time, thanks to TV news, with the graphic bigotry of Jim Crow, helping to forge a cohesive national culture that contained a growing moral conscience. Traditionally local issues suddenly became national ones. And Americans needed a set of standards to govern the exchange of information and ideas. Sullivan and its progeny were merely the capstone to this process, yet the ruling had a huge effect: It gave the United States the strongest freedom­-of-­expression jurisprudence in the world, perhaps in history.

Of course, the extraordinary protections here did not signal the end of our debates over the First Amendment. Nor do they mean that intolerance and suppression are now alien to American society. In my own world, for instance, protesters pushed a number of colleges and universities to disinvite admirable public servants who were scheduled to deliver commencement addresses last spring. So we should tread cautiously before casting judgment on foreign governments and their people. Still, these are footnotes to a profound, far­-reaching ethos that embraces freedom of thought and expression.

The collision of forces we faced (and mostly sorted out) is now evident all over the world. Issues that until recently were matters of local prerogative, such as representations of the prophet Muhammad, are often geographically unconfined. With unrestrained exposure and access, emboldened individuals are banding together with their fellow citizens, making their governments feel besieged by their unexpected new demands. For now at least, a chief effect of the global forum is to generate resistance from those who perceive the new world as a threat.

Governments whose authority is ebbing have been increasingly brazen in their attempts to silence critics. Turkey used charges of tax fraud and massive fines against a conglomerate of newspapers and TV stations critical of President Recep Tayyip Erdogan’s policies. Hungary’s government established a media authority to impose restrictions on content deemed inappropriate.

To counter these regressive trends, it is critical that we nurture the norms, laws and institutions needed to support free expression globally. There is a sound foundation on which to build. Article 19 of the Universal Declaration of Human Rights, adopted by the U.N. General Assembly after World War II and subsequently reaffirmed by the nations of the world, unequivocally asserts the freedom of expression and the right to “receive and impart information and ideas through any media and regardless of frontiers.” Just as, over the past century, the First Amendment moved from the periphery of America’s civic consciousness to its center, Article 19 must gain a similar familiarity, globally.

The surest way to make this happen is to harness the prevailing international commitment to free markets and a global economic system, which demands the open sharing of information. For example, Washington should signal the economic importance of ideas by developing a new international trade regime that protects journalism, academia and digital information. The administration has already gestured in this direction by urging the World Trade Organization to investigate how Chinese censorship blocks commerce and not just speech.

Next, the U.S. government should insist that regional and bilateral trade pacts commit all parties to the free flow of information and ideas integral to trade and investment. The Trans­Pacific Partnership agreement being negotiated by the U.S. trade representative, for instance, should contain not only provisions concerning the environment and labor standards, but also vigorous protections for freedom of information and expression. Columbia’s own Global Freedom of Expression and Information project is cataloguing international legal precedents on freedom of speech, and next month it will present the first awards for legal attempts to strengthen international norms.

Given the breadth of attacks on speech and the press around the globe, this approach may appear to elevate hope over experience. Yet as tragic and worrisome as setbacks such as Paris are, they are small impediments to titanic forces that must ultimately lead to greater and greater openness. It will, no doubt, take a long time. But the American experience shows that the backlash to new ideas and cultures, now evident in many countries, can be overcome. The yearning for freedom of expression is universal. There is nothing uniquely American about it at all.

[Lee C. Bollinger has been president of Columbia University since 2002 and is the author of Uninhibited, Robust, and Wide-Open: A Free Press for a New Century (Oxford University Press, 2010).]