Free speech for the first speaker

This is Joseph

In the process of pointing out actual laws limiting free speech, the New York Times manages this interesting perspective: 

Liberals — and anyone concerned with protecting free speech — are right to fight against these pernicious laws. But legal limits are not the only constraints on Americans’ freedom of speech. On college campuses and in many workplaces, speech that others find harmful or offensive can result not only in online shaming but also in the loss of livelihood. Some progressives believe this has provided a necessary, and even welcome, check on those in power. But when social norms around acceptable speech are constantly shifting and when there is no clear definition of harm, these constraints on speech can turn into arbitrary rules with disproportionate consequences

I think that this perspective is shifting between "free speech" and "consequence free speech". The first is an important way to introduce new thinking and to allow for political discourse. The second gives enormous privilege to the first speaker. 

That said, there is a lot of nuance here. For example, when teaching I can occasionally adopt an unpopular position (that I don't necessarily hold) to force students to engage with criticism. When I discussed IRBs, I ended up seeing it on teaching evaluations. It pushed me to improve how I taught the topic, as offending students is rarely the way to force them to critically evaluate assumptions (even if only to strengthen them and ground them in principle). 

It is common to want the rules to favor your own viewpoint. Newspaper opinion writers have a challenging job in which they have to create provocative opinions to generate interest but are very visible if there is a backlash. I can see why they would prefer to not face consequences for misjudgments and I am sympathetic to wanting economic security.

But the marketplace of ideas requires a robust culture of criticism. This is a fine paragraph until the last sentence:

The progressive movement in America has been a force for good in many ways: for social and racial justice, for pay equity, for a fairer system and society and for calling out hate and hate speech. In the course of their fight for tolerance, many progressives have become intolerant of those who disagree with them or express other opinions and taken on a kind of self-righteousness and censoriousness that the right long displayed and the left long abhorred. It has made people uncertain about the contours of speech: Many know they shouldn’t utter racist things, but they don’t understand what they can say about race or can say to a person of a different race from theirs. Attacking people in the workplace, on campus, on social media and elsewhere who express unpopular views from a place of good faith is the practice of a closed society.

 How do you tell that the views are coming from a place of good faith? "I am just asking questions" is a powerful bad faith rhetorical technique. Assessment of good or bad faith is going to be inherently a subjective question and there are some cases where it just strains plausibility.

For example, Loving versus Virginia (a landmark civil rights case allowing for interracial marriage) cam up in the confirmation hearings of Ketanji Brown Jackson. In context, Judge Jackson has an interracial marriage (as do many prominent figures in government/judiciary like Judge Thomas and Mitch McConnell). Consider:

When asked by a reporter whether he would consider the Supreme Court potentially striking down Roe this year to be “judicial activism,” Braun said he thought what justices did in 1973 to pass Roe was “judicial activism.”

“That issue should have never been federalized, [it was] way out of sync I think with the contour of America then,” he said. “One side of the aisle wants to homogenize [issues] federally, [and that] is not the right way to do it.”

Individual states, he said, should be able to weigh in on these issues “through their own legislation, through their own court systems.”

The same reporter asked Braun whether he would apply the same judgment to Loving, and Braun said “yes.”

“I think that that’s something that if you’re not wanting the Supreme Court to weigh in on issues like that, you’re not going to be able to have your cake and eat it too,” he said. “I think that’s hypocritical.

Now is it inappropriate to wonder why this question was asked of Judge Jackson and not Judge Barrett? Is it because people assume that Judge Barrett is against Loving v. Virginia? Or because it is settled law with broad national support and was a tool to try to rattle a candidate based on their personal situation? Or because Senator Braun was just a curious person who happened to bring up an example that shows that he holds very polarizing opinions?

I think that it is reasonable for people to critique the decision of how to spend the limited time in a Supreme Court confirmation. In other words, like a classical liberal, I am strongly in favor of Senator Braun being free to speak his mind but I am also free to change my opinion of his character (in a positive or negative way) based on his speech. Similarly, the whole point of Judge Jackson's confirmation hearing is to try and change people's opinion of her (reassuring political allies and converting political foes, one presumes). 

So I think that this perspective on free speech is not really advancing the conversation but rather erring on the side of being a bit to kind to provocative speakers. It's a big privilege to be able to be provocative (many places have not allowed it at all) but the only way it makes sense is to the ability to freely respond to the original speech.