Law Alone Can’t Protect Free Speech

From The Wall Street Journal:

Cancel culture notwithstanding, legal commentator Ken White argues that “this is a golden age for free speech in America.” For decades, he notes, the Supreme Court has protected all manner of objectionable speech, from burning the American flag to homophobic protests outside servicemen’s funerals. That’s true—but those victories rest on a broad cultural consensus. If campus norms continue to displace free speech culture, judges and lawyers will eventually start to ignore the First Amendment or, worse, chip away at it until it is meaningless.

Free-speech culture gave us the First Amendment to begin with. It kept free speech alive in the tumultuous 19th century. It reinvigorated the First Amendment in the 20th century. It informs interpretations of the First Amendment today—and it will determine whether free-speech protections will survive.

That’s very much in doubt, considering the state of those norms in higher education. Our organization was founded in 1999. Back then, if Princeton investigated a professor because he wrote an op-ed disagreeing with activist demands, or the public called on Auburn to fire a professor for expressing antipolice views online, or a conservative University of North Carolina-Wilmington professor was hounded to suicide for abrasive public statements, it would be a very bad semester. All this happened within two weeks last month, and the fall semester hasn’t even begun. As students graduate, cancel-culture norms spread beyond campus, to newsrooms, corporate boardrooms—and sooner or later courtrooms.

What is free-speech culture? Folk wisdom like “it’s a free country” is one window into cultural values, and free-speech values pervade our idioms. Sentiments like “to each his own” and “everyone’s entitled to an opinion” can be found all over First Amendment law. “Freedom to differ is not limited to things that do not matter much,” the justices observed in West Virginia Board of Education v. Barnette (1943). In Cohen v. California (1971), they declared that “one man’s vulgarity is another’s lyric.”

. . . .

[W]ithout a corresponding culture, free-speech law becomes a mockery. Consider the following constitutional provisions:

• “Everyone shall be guaranteed freedom of thought and speech.”

• “Citizens are guaranteed freedom of speech, the press, assembly, demonstration and association.”

• “Everyone has the right to express and disseminate his/her thoughts and opinions by speech.”

Each of these promises sounds similar to the First Amendment’s Free Speech Clause. But Russia, North Korea and Turkey, respectively, lack the free-speech culture necessary to make them real. Even in freer countries such as Spain, Britain and France, people have been imprisoned for rap lyrics, social-media posts, and reading choices.

Link to the rest at The Wall Street Journal (Sorry if you encounter a paywall)