Nadine Strossen discussed her new book “Free Speech: What Everyone Needs to Know.”
She also opened up about her inspiration to pursue a career in civil liberties, as well as her motivation to write a book on the First Amendment and free speech, and she discussed the concept of “censorship by proxy” and its implication for free speech in the digital age.
An NYU law professor, author, and a liberal feminist, she was the first woman to lead the American Civil Liberties Union (ACLU).
Background on Nadine Strossen
Nadine Strossen is a Professor of Law Emerita at New York Law School and past President of the American Civil Liberties Union (1991 to 2008), is a Senior Fellow with FIRE (the Foundation for Individual Rights and Education) and a leading expert and frequent speake and media commentator on constitutional law and civil liberties, who has testified before Congress on multiple occasions.
Strossen graduated Phi Beta Kappa from Harvard College and magna cum laude from Harvard Law School. Before becoming a law professor, she practiced law in Minneapolis (her hometown) and New York City. She is a member of the Council on Foreign Relations.
Honors and accolades for Nadine Strossen
According to the NYU Law School website, the National Law Journal has named Strossen one of America’s “100 Most Influential Lawyers.” Her many honorary degrees and awards include the American Bar Association’s “Margaret Brent Women Lawyers of Achievement Award” in 2017.
In 2023, the National Coalition Against Censorship (an alliance of more than 50 national non-profit organizations) selected Strossen for its “Judy Blume Lifetime Achievement Award for Free Speech.”
When Strossen stepped down as ACLU President, three (ideologically diverse) Supreme Court Justices participated in her farewell tribute luncheon: Ruth Bader Ginsburg, Antonin Scalia, and David Souter.
Synopsis of her ‘Free Speech’ book
Her book is a guide to the most important free speech rules, rationales, and debates, including the strongest arguments for and against protecting the most controversial speech, such as hate speech and disinformation
The book focuses on modern First Amendment law, explaining the historic factors that propelled its evolution in a more speech-protective direction – in particular, the Civil Rights Movement.
It highlights the many cases, involving multiple issues, in which robust speech-protective principles aided advocates of racial justice and other human rights causes.
The book also shows how these holdings reflect universal, timeless values, which have been incorporated in many other legal systems, and have inspired countless thinkers and activists alike.
Q & A interview
As a liberal feminist, what inspired you to pursue a career in civil liberties?
I was inspired by one of my longtime heroes, Ruth Bader Ginsburg, whom I first met while I was a law student and she was the founding director of the ACLU Women’s Rights Project, which won historic Supreme Court decisions that for the first time recognized that the Constitution’s Equal Protection Clause barred gender-based discrimination (a conclusion that the Court had previously rejected).
Ginsburg was also an ACLU leader concerning the ACLU’s overall civil liberties agenda – defending all fundamental freedoms for all people – in her capacity as a member of the ACLU’s National Board of Directors and one of its General Counsel (both positions in which I was honored to follow in her footsteps).
She explained why she chose to base her pioneering women’s rights work at the ACLU, rather than an organization that specifically focused on women’s rights only, because it was important to situate women’s rights as part of the overall human rights and civil liberties agenda.
Among other things, Ginsburg herself – as well as the ACLU Women’s Rights Project – stressed that women’s equality depends on vigorously enforced civil liberties, including free speech and due process.
What motivated you to write a book specifically addressing the topic of free speech?
Countless specific situations, as well as general survey data, have demonstrated that free speech has been increasingly embattled in the recent past, including in institutions that traditionally have been especially committed to free speech – for example, academia, journalism, publishing, cultural and entertainment institutions, and librarianship.
Public opinion surveys show that support for speech-protective legal standards tends to be especially low among younger cohorts, which means that future challenges are likely to be even greater.
Throughout my adult lifetime, I have been both an educator about free speech – in my capacity as a law professor – and an advocate for free speech – in my capacity as a civil liberties activist.
When wearing my professorial hat, I have always assiduously avoided advocating any particular interpretation of the First Amendment, but rather I have required students to understand and articulate all plausible perspectives on all the issues – in other words, all positions that are reasonably supported by the Constitution’s language and history, and the Supreme Court’s precedents interpreting it.
Nonetheless, I have consistently seen that people tend to more strongly support free speech the more understanding they have about it. When people understand the principles of free speech, they can appreciate that these principles accord with common sense.
Moreover, they come to appreciate the positive impact of free speech and the negative impact of censorship when they become familiar with the history that gave rise to these speech-protective principles, often at the behest of individuals and groups that are advocating for human rights and social change, and dissenting from government policies, who have been disproportionately targeted for censorship.
Many people who say they oppose the First Amendment’s speech-protective standards actually oppose a distorted, caricatured version of such standards, which reflects the unfair, uninformed criticism that is too prevalent among politicians and even in the media.
For example, First Amendment critics often claim that the First Amendment permits no speech restrictions at all, and that First Amendment defenders even deny that speech can do any harm.
To the contrary, though – as people will see when they learn what free speech law actually provides – they will understand that this law sensibly allows the government to outlaw the speech that is the most dangerous while also outlawing the censorship that is the most dangerous.
You have also authored the book ‘Hate: Why We Should Resist It with Free Speech, Not Censorship.’ How do you define “hate speech,” and what are some of the key characteristics that distinguish it from other forms of speech?
I (and many experts) put the term “hate speech” in quotation marks to underscore that it is not a legally recognized concept. It tends to be used in everyday speech to refer to any expression that conveys hateful, discriminatory ideas, particularly based on certain identity characteristics such as race, religion, or gender.
The Supreme Court never has defined any category of speech, based solely on its hateful content, and held that it should be denied First Amendment protection solely because of that content.
To the contrary, the Court has famously said that the First Amendment protects freedom “even for the thought that we hate,” including speech that conveys hateful ideas.
The Court has held that some hate speech (along with speech conveying other controversial messages) may be punished based not on its content or message alone, but only when, considered in context – in the particular factual circumstances – it directly causes certain specific serious harm. This concept is often called the “emergency” principle.
The Court has recognized several subcategories of contextually-defined speech that satisfies the emergency principle, and many specific instances of hate speech may satisfy these standards – for example, intentional incitement of imminent violence, targeted threats or bullying, and harassment.
For purposes of First Amendment law, “hate speech” is indistinguishable from other speech with controversial content (with only one exception) in the following key respect: government may not restrict any such expression based on its disfavored content/message alone, but the government may restrict the expression when, in context, it satisfies the emergency standard.
This is the analysis that the Court uses, for example, for disinformation, misinformation, extremist/terrorist speech, and “pornography” (as well as for hate speech).
The only exception, when the Court does allow the government to punish speech based solely on its disfavored content, is “obscenity” – a relatively narrow category of sexual expression, which is deemed to be “patently offensive” under local community standards and to lack “serious value” under national standards.
In other words, the work can’t be deemed obscene, and lacking in First Amendment protection, just because a relatively intolerant local community concludes that it lacks value.
This sole exception to the general First Amendment standards hasn’t been re-examined since 1973, and it has been subject to intense criticism, including by Justices all across the ideological spectrum.
Can you elaborate on the idea of “censorship by proxy” and its implications for free speech in the digital age?
This term refers to government pressures on social media companies to deplatform or otherwise reduce the visibility of certain disfavored expression, even though the expression is constitutionally protected and the First Amendment bars government itself from directly restricting such expression.
Recently evidence has been produced, via the “Twitterfiles” and “Facebook files,” documenting extensive communications from government officials to social media companies, urging the latter to suppress certain “disinformation,” including about COVID and election controversies.
Several federal court judges also recently have ruled, in a case called Missouri v. Biden, that these officials violated the First Amendment by in effect deputizing the social media companies to carry out the government’s censorial agenda. The Biden Administration has appealed these rulings to the Supreme Court.
Whether communications from government to private companies do in fact constitute “censorship by proxy” and hence violate the First Amendment entails a very fact-specific determination (as is true for all First Amendment issues), because it involves the proverbial “delicate balance” between countervailing considerations.
On the one hand, government officials have their own First Amendment rights to communicate with platforms, and indeed they have a responsibility to exercise their free speech rights to encourage or persuade the companies to implement policies that the officials believe to be in the public interest.
While such encouragement is constitutionally permitted, when it crosses the line to coercion, it is constitutionally barred. But there is no bright line between encouragement and coercion.
That said, even experts who believe that the evidence in Missouri vs. Biden doesn’t show that the government crossed the First Amendment line, nonetheless stress that government officials’ conduct was problematic from a policy perspective; they exerted substantial pressure to suppress speech about important topics because the expression conveyed views that are inconsistent with or critical of government policy.
In other words, even if such government pressure is not technically unconstitutional, it is anti-democratic.
It should also be noted that the very same kinds of communications from government officials encouraging/pressuring platforms to either promote or demote certain perspectives also took place during the Trump Administration, and we can assume that all officials will continue to engage in the practice that is often called “jawboning.”
Therefore, regardless of what one’s views might be about the particular speech that specific officials have pressured companies to platform or de-platform – whatever one believes about the (de)merits of such speech — there is an important general principle at stake, which is important for all of us, and for our democratic system: government should not be able to do an end-run around the First Amendment’s ban on its own censorship of constitutionally protected speech by delegating such censorship to private sector platforms.
What is the state of free speech in the United States today… Do you feel that it is strong or weak?
As Charles Dickens wrote in the famous opening line of A Tale of Two Cities: “It was the best of times; it was the worst of times.”
On the one hand, the state of free speech law has never been stronger, with Justices all across the ideological spectrum consistently upholding freedom even for the most controversial speech, including hate speech, disinformation, extremist speech, and pornography.
On the other hand, though, public opinion surveys and other evidence indicate that public support for free speech is not so strong.
Of even greater concern, powerful private sector forces, with great power over speech, have had a speech-suppressive impact: these private censorial forces include social media platforms, through their content moderation policies, and “Twittermobs” and other groups of community members who impose and advocate various negative actions against unpopular expression, including shaming and shunning, firing employees, and suspending students.
Public opinion polls have consistently been showing that substantial majorities of the public, including all demographic groups, engage in significant self-censorship for fear of “cancel culture” repercussions; they don’t express certain perspectives on sensitive, controversial issues, and often they don’t even discuss such issues at all.
Most troublingly, survey data consistently shows that this kind of self-censorship occurs on campus, where free speech should be especially vigorous.
For example, a recent extensive survey by FIRE (the Foundation for Individual Rights and Expression) and College Pulse, which was published in September 2023, showed that more than 25 percent of college/university students engaged in self-censorship “often.”
The upshot is that even though our legal free speech right is strong, we are not actually freely exercising and enjoying that legal right, due to social pressures.
As a practical matter, freedom of speech will not be strong until we supplant the prevalent cancel culture with a free speech culture.
“Free Speech: What Everyone Needs to Know” by Nadine Strossen is available on Amazon by clicking here.
