A First Amendment Giant Offers a Way Out of Our Free Speech Crisis

As open expression is crippled on campus and elsewhere, let’s look to how Thomas I. Emerson helped guide us out of a similar crackdown in the 1950s

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Perhaps nowhere is the threat to freedom of expression in the U.S. more dire than in higher education. A cadre of administrators and accreditors—“orthodoxy sniffers,” to use Orwell’s phrase—is policing thought at colleges that once promoted a free exchange of ideas. Words and opinions long considered benign are now radioactive, triggering social-media shaming, official investigations and strict punishments. Thanks to this illiberalism, an oppressive cloud of self-censorship hangs over the exploration of politics, law and society at schools across the country.

Crackdowns on free thought are so routine that they’ve become an accepted part of academic life. Here are three cases in the news this year:

• In a tweet on Jan. 26, former Cato Institute scholar Ilya Shapiro criticized President Biden’s decision to consider only Black women for his Supreme Court nominee. Shapiro wrote that instead of the most qualified person for the job, “a lesser black woman” would be chosen. He quickly deleted the tweet and apologized for his “inartful” language. He was supposed to start a new job on Feb. 1 as a senior lecturer at Georgetown University’s law school and executive director of its Center for the Constitution. Instead, the school suspended him with pay pending an investigation, which is still going on. His view hardly put him out of the mainstream: 76% of Americans agreed in an ABC News poll that Biden should not have restricted the pool of candidates.

• Amy Wax, a tenured law professor at the University of Pennsylvania’s law school who has a history of arousing controversy, is under fire for comments she made about Asian immigration on economist Glenn Loury’s podcast in December. The school is in the process of deciding whether to sanction her.

• In February, the State University of New York at Fredonia suspended philosophy professor Stephen Kershnar and barred him from campus while it investigates comments he made about adult-child sex in a podcast. However repugnant his views might be, he’d been speaking and writing on the topic for years without condemnation or penalty—but times have changed.

A Lesson From the Past

The road map for resolving this crisis on campus has been left to us in the writings of attorney, civil libertarian and First Amendment scholar Thomas I. Emerson, one of the great unsung warriors against the McCarthyite academic purge of the 1940s and ’50s. In 1957, Emerson successfully argued before the Supreme Court the case of University of New Hampshire Professor Paul Sweezy, whose left-wing background and controversial classroom lectures made him a target of his state’s attorney general.

The force of Emerson’s reasoning spurred Chief Justice Earl Warren to issue an opinion on the First Amendment that’s a paean to robust, fearless and uninhibited academic freedom. “Scholarship cannot flourish in an atmosphere of suspicion and distrust,” Warren wrote. “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”

Warren’s landmark opinion in Sweezy v. New Hampshire has guided the court’s jurisprudence in academic freedom cases ever since. As a matter of law, the First Amendment protects students and faculty in only state schools, but its principle of academic freedom is enforceable in faculty employment contracts and other documents binding private colleges and universities. Emerson’s ideas helped end an earlier era of repression on our campuses. They can do so again.

Emerson’s Classic Treatise

After working as a lawyer in President Franklin D. Roosevelt’s administration, Emerson taught at Yale Law School for more than three decades and pursued numerous constitutional law cases before his death in 1991 at age 83. After his Supreme Court victory in Sweezy, he continued to develop his ideas on free speech. His 1970 book, “The System of Freedom of Expression,” extended the vision of an intellectually uninhibited system of higher education that he promoted while arguing that case.

It describes a free, democratic society capable of peacefully resolving even the most rancorous controversies—including those over free speech—in a way that fosters engagement and enlightenment. He explains in detail the benefits of tolerating unpopular views. In a liberal democracy that fully embraces free speech, rebutting offensive and dangerous speakers instead of shutting them down can improve our culture, on campus and beyond, and strengthen our democratic institutions.

In “The System of Freedom of Expression,” Emerson describes four benefits of free speech:

1) The Socratic benefit: Freedom of expression is “an essential process for advancing and discovering truth,” he writes. It is indispensable to intellectual advancement. To distinguish truth from falsity, people must be able to consider every claim and keep asking questions, wherever facts and reason dictate, until they are satisfied. Even false claims can be instructive if they compel us to reexamine old beliefs and this reinforces our beliefs by giving us more confidence in their value.

It’s this premise that animated former Supreme Court Justice Oliver Wendell Holmes’s “marketplace of ideas” theory of the First Amendment. “The best test of truth,” said Holmes, isn’t its adoption or approval by the state but “the power of the thought to get itself accepted in the competition of the market. … That at any rate is the theory of our Constitution.” The First Amendment ranks truth-seeking above other social interests by prohibiting the government from interfering with the free exchange of ideas. “This is the method of the Socratic dialogue employed on a universal scale,” Emerson wrote in an article foreshadowing his book.

2) The Aristotelian benefit: The First Amendment recognizes the natural capacity for creative greatness in people by protecting artistic and expressive talents. Aristotle thought of human beings as rational animals who, as they develop their talents, move from a state of potential to actual happiness. Sharing our honest thoughts and feelings in every medium, but especially through works of artistic expression, is necessary for individual flourishing.

Free speech is a human right and censorship is an “affront to the dignity” of the individuals being silenced, wrote Emerson. Silencing poets, musicians, filmmakers or anyone prevents them—and their listeners and viewers—from realizing their potential for happiness. “For the achievement of this self-realization the mind must be free.”

3) The Jeffersonian benefit: The boldest philosophical claim in Thomas Jefferson’s Declaration of Independence is that governments “derive their just powers from the consent of the governed” and that any government that doesn’t enjoy this consent deserves to be overthrown. By adopting the declaration, the Continental Congress insisted on a redefinition—an inversion—of the traditional understanding of state authority. Americans decided that instead of being British subjects, accountable to a king, they would be American citizens, whose government would be accountable to them.

The essence of democracy—even an indirect and limited democracy such as the one our Constitution created a few years later—is self-governance. Self-governance requires that the state be transparent and that discussion about its activity be unimpeded.

4) The Emma Goldman (“safety valve”) benefit: The federal government hated early-20th-century anarchist Emma Goldman. J. Edgar Hoover wrote that she was one “of the most dangerous anarchists in this country.” Law enforcement harassed, jailed and ultimately deported her. She was a fanatic for the cause of individual rights, particularly for workers, immigrants, women and others she saw as oppressed. No matter what the state did, she refused to be stopped.

The Espionage Act of 1917 and the Sedition Act of 1918 made the expression of her anarchist and anti-war views criminal. She raged even harder against a government that she was convinced was now more aggressively persecuting critics like her. She was arrested, imprisoned, convicted and banished to her native Russia.

As the government continued to limit legal outlets for anarchists to speak, they made themselves heard through lawless conduct. While Goldman’s resistance seems to have been limited to speech, many on the militant fringe of the movement went underground and resorted to bombings and other acts of terrorism.

Censorship Is Never the Answer

For members of radical political groups, this is the common psychology. While censorship may cause the less fervid to conform, it usually doesn’t have the same effect with the more zealous. Instead, it tends to reinforce their sense of being persecuted. The transition from activist to terrorist, words to violence, can be swift.

Emerson’s liberal approach to freedom of expression promotes peace and stability by giving people with unpopular political views the opportunity to nonviolently blow off steam. “People are more ready to accept decisions that go against them if they have a part in the decision-making process,” he explains.

To prevent the spread of bad ideas, the First Amendment allows for two remedies. First, while expression must always be tolerated, harmful conduct need not be. The government may punish anyone who attempts to advance dangerous ideas with criminal activity.

Second, there is counter-speech. There is no surer way to halt the spread of a bad idea than by using reason and evidence to replace it with a good one. If people find a belief to be dangerous, the First Amendment gives them the right to persuade fellow citizens not to adopt it. This is essential to the realization of the First Amendment’s Socratic and Jeffersonian purposes. “The greatest menace to freedom,” wrote former Supreme Court Justice Louis D. Brandeis, “is an inert people.” Ultimately, whether free speech endures will rest on our faith that these remedies work.

Our Emersonian First Amendment is both a means and an end, a path toward a free society and a way of maintaining one. Reaffirming our commitment to it will heal the distrust dividing us. It also will maximize our aptitude for freedom, knowledge and happiness going forward.

Editor’s note: This is an abridged version of an essay published in January by Grand Valley State University’s Koeze Business Ethics Initiative.