The First amendment of the United States Constitution reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Within those 45 words, there is nuance and room for interpretation: Where does free speech end and hate speech begin? What constitutes censorship? And how can people maintain a free and open dialog to counter hate and disinformation? These questions were the focus of the University of Vermont’s 2024 George D. Aiken Lecture, a part of UVM’s Presidential Lecture Series, delivered on October 29 at UVM’s Alumni House by Nadine Strossen, and titled: “Hate: Why we Should Resist it with Free Speech, Not Censorship.”
Among her many accomplishments, Strossen served as the sixth president of the American Civil Liberties Union from 1991 until 2008, becoming the first woman to hold that position. In 1992 she was the recipient of an honorary Doctor of Laws degree from UVM. Strossen was introduced by UVM President Patricia Prelock. The lecture was moderated by former UVM President and free speech expert Thomas Sullivan and included the showing of a short documentary about the development of the Free Speech Movement on college campuses in 1964, titled Bodies Upon the Gears, that was narrated by Strossen.
On October 30, Strossen appeared on Across the Fence, the daily television program co-produced by University of Vermont Extension and WCAX-TV, where she was interview on the topic of free speech by the program’s host, Joleil Whitney. Following is an edited excerpt of that conversation.
Joleil Whitney: First, let's start with kind of brass tacks. Can you define hate speech?
Nadine Strossen: Hate speech is not legally defined for the precise reason that the U.S. Supreme Court has never recognized a category of speech that is unprotected, based on its hateful content. We tend to use the word “hate speech” in everyday speech to refer to expression that conveys hateful or discriminatory ideas. But the U.S. Supreme Court has repeatedly refused to, including very recently, to say that a hateful message alone is enough to justify suppressing this speech. So let's dive into kind of one form of hate speech.
…The content, the hateful message alone is not enough to justify suppressing it. If, however, in a particular context, the hateful message directly causes a certain specific harm or imminently threatens certain specific harm, then it can and should be punished. So if a hateful message is shouted directly in the face of a targeted individual, it may very well be punishable as so-called fighting words or harassment or bullying. It could constitute what is the Supreme Court calls a true threat if it instills a reasonable fear that you're going to be subject to attack. So most personally directed hateful speech is, in fact, sensibly already outlawed under the First Amendment. But solely to express an idea that is considered hateful, is not enough to suppress it, because in our free society, it is not for the government to make those determinations. It is for we, the people. And the concept of hate is so subjective. One person's hateful speech is somebody else's cherished idea.
…If you look at the course of history in the United States, we really have come a long way toward countering discriminatory and hateful ideas and policies. Not through censorship, but through the exercise of free speech.
JW: In the world of social media, has protecting free speech and avoiding censorship become more difficult?
NS: It has, in the sense that, it's such an easy political target for both Democrats and Republicans to attack tech titans who are quite unpopular, and seeking to rein in their so-called content moderation policy and power. And the only thing that is agreed upon, I think, by the two major presidential candidates, is that government should restrict the power of social media companies, but they radically disagree about how – which, again, shows how completely subjective it is to determine that some speech is so harmful that we, the American people, have to be “protected: against it. And I'm putting that in quotes, because that kind of paternalism is really inconsistent with the whole spirit of liberty, liberty, equality and democracy that animate our country.
JW: And do you think censorship online is different from censorship that we've seen before in more conventional media, or is it all the same?
NS: It's all the same. You know, throughout history, every time a new medium of communication has been invented, those of us who support free speech and human rights and equality and dignity get very excited because it becomes a powerful tool to organize and advocate and communicate for our causes. But those who have a more authoritarian or let's say communitarian bent, are always fearful about the dangerous potential. A medium of communication is just that: It's a neutral conduit or channel which will transmit whatever we individual human beings choose to transmit, and we can raise our voices for enormous positive purposes as well as negative. The negative tends to get more publicity, and I certainly defend freedom of the press… But we know the old cliché: if it bleeds, it leads. So you have the existing media, giving disproportionate attention, I think, to the negative uses of social media and other online technology, and taking for granted the huge positive that has resulted from it really empowering virtually everybody on this planet to communicate with everybody else on this planet.
JW: Let’s talk about a story that's filled the headlines recently. The most recent free speech controversy has been around anti-Semitic speech… what is the line between protecting punishable speech in this instance?
NS: This is a really good illustration of what I said earlier. Generally, the fact that people are making anti-Semitic statements or pro genocide statements or anti-Palestinian statements …whatever you consider to be the most evil or dangerous message, the message alone is not going to justify restriction. But if that same message is directly targeted at a particular individual or small group of individuals… that may well constitute punishable harassment or intimidation or discriminatory harassment or even threats. Another way in which expression on campus runs afoul of protected, free speech is if it violates reasonable content, neutral time, place, and manner restrictions – by interfering with the primary purpose of the university, which is education. So, if students are camped out or just having a daylight protest in a crowded area of campus where they're making so much noise that it's impossible or difficult to hear what's going on in lecture hall, or it's difficult to gain access to a lecture hall, it doesn't matter what their messages, they can and should be even-handedly punished because they are undermining, interfering with the prime purpose of the university. Now, it is true that the university must provide… ample alternative channels for the demonstrators. There has to be some time, some place, some manner in which they are allowed to convey their protest messages.
JW: This has been a pretty contentious election season… What can we do as just people to help make sure we stay civil in conversations?
NS: Well, exactly what has been happening throughout my wonderful visit to Burlington, which is people wanting to learn more about free speech, rights and wrongs, wanting to understand when they can raise their voices, including to raise their voices in defense of free speech. Which means making sure that speech that is constitutionally protected is not restricted, but also making sure that expression that crosses the line, that is harassment or intimidation or does disrupt the educational process, that that is restricted, because that interferes with other people's freedom of speech. So in a word, education, empowerment, information.
The full interview with Nadine Strossen will air on Across the Fence on November 5, 2024 at 12:15 p.m. on WCAX-TV, Channel 3. After that date the recorded conversation will be archived on the Across the Fence YouTube channel.
UVM’s George D. Aiken Lectures, part of UVM's Presidential Lecture Series, are a permanent tribute to the former governor of Vermont and dean of the United States Senate, where he represented the people of the Green Mountain State for 34 years. The George D. Aiken Lecture series has been supported by an endowment created by George and Lola Aiken and held annually at the University of Vermont. Since 1975, the Aiken Lecture provides a platform for distinctive views on critical American issues and is the University’s major annual public-policy forum.