Scott McLemee prepares an inventory of new scholarly books on freedom of speech.

Freedom of Speech and Its Discontents

This spring’s offerings from university presses include a bumper crop of books on freedom of expression and its discontents.

March 10, 2022

This spring’s offerings from university presses include a bumper crop of books on freedom of expression and its discontents. Here is a quick roundup of pertinent titles on free speech, freedom of the press and the permissible limitations, if there are any, on their exercise.

If debates on the matter seem perennial, it is because of free communication’s troubled relationship to democracy, argue Zac Gershberg and Sean Illing in The Paradox of Democracy: Free Speech, Open Media, and Perilous Persuasion (University of Chicago Press, June). While “a necessary condition of democracy, that very freedom is also its greatest threat,” fostering both “the practices of democratic politics” and the potential for “demagoguery, distraction, and spectacle.” (Quoted passages in this article are taken from material supplied by the publishers.) New channels for public discourse bring the old tensions back into focus. The authors maintain that “our contemporary debates over media, populism, and cancel culture are not too different from democratic cultural experiences of the past.”

Lynn Greenky’s When Freedom Speaks: The Boundaries and the Boundlessness of Our First Amendment Right (Brandeis University Press, May) brings the author’s experience as a lawyer and her interests as a scholar of rhetoric to bear on “the protection we have from laws that abridge our right to the freedom of speech.” She analyzes “the characters and drama embedded in legal cases that elucidate First Amendment principles,” examining “concepts related to free speech as moral narratives that proscribe the boundaries of our constitutionally protected right.

The extension of such protection to forms of communication unimaginable when the First Amendment was created—film, broadcasting and computer code, for example—has come through court cases and the rethinking of how broadly “speech” should be defined. Jennifer Petersen’s How Machines Came to Speak: Media Technologies and Freedom of Speech (Duke University Press, April) “shows that the legal category of speech has varied considerably, evolving from a narrow category of oratory and print publication to a broad, abstract conception encompassing expressive nonverbal actions, algorithms, and data.” The author anticipates “future innovations such as artificial intelligence will continue to restructure speech law in ways that threaten to protect corporate and institutional forms of speech over the rights and interests of citizens.”

Lee C. Bollinger and Geoffrey R. Stone, the editors of Social Media, Freedom of Speech, and the Future of Our Democracy (Oxford University Press, August) have assembled essays on “hate speech, disinformation and propaganda campaigns, and incitement of violence on the internet,” especially “speech on social media platforms such as Facebook and Twitter.” Among the more prominent contributors are Hillary Clinton, Tim Wu, Cass Sunstein, Jack Balkin and Emily Bazelon.

Jeff Kosseff interviewed figures “involved in the highest profile anonymity cases, as well as with those who have benefited from, and been harmed by, anonymous communications” for his book The United States of Anonymous: How the First Amendment Shaped Online Speech (Cornell University Press, March). While there are “tradeoffs between the right to hide identity and the harms of anonymity,” courts have upheld the right to anonymity by “blocking laws that prevent Ku Klux Klan members from wearing masks” and “restraining Alabama officials from forcing the NAACP to disclose its membership lists,” as well as by “refusing companies’ requests to unmask online critics.” Debates over the legal status of anonymous public discourse “often focus on the Fourth Amendment’s protection against unreasonable searches and seizures,” but the author makes the case for “an equally powerful privacy right: the First Amendment’s protection of anonymity.”

Plenty of free speech, anonymous and otherwise, amounts to just so much gutless malevolence—indulged without conscience or consequence, serving no end beyond the solitary gratification of spite. That much is a given. On the other hand, trolling can be a sort of activism. Finbarr Curtis’s Going Low: How Profane Politics Challenges American Democracy (Columbia University Press, July) “draws on the insights of religious studies” to interrogate “how the offensive style of contemporary politics challenges liberal democratic institutions.” What might look like reveling in pure obnoxiousness to “own the libs” can be understood as forms of “provocation and transgression,” a violation of pieties. The author “contends that deliberate offensiveness dovetails with the privatization of public goods: both represent the refusal to accommodate the sensibilities of others in a diverse society.” Well, sure—no one can force you to be a decent human being.

Finally, there’s Michael Bérubé and Jennifer Ruth’s It’s Not Free Speech: Race, Democracy, and the Future of Academic Freedom (Johns Hopkins University Press, April). Addressing both “the question of when a professor’s intramural or extramural speech calls into question his or her fitness to serve” and “the question of how to manage the simmering tension between the academic freedom of faculty and the anti-discrimination initiatives of campus offices of diversity, equity, and inclusion,” the authors contend “that the democracy-destroying potential of social media makes it very difficult to uphold the traditional liberal view that the best remedy for hate speech is more speech.” It sounds like a huge debate just waiting to happen.


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