Judging Speech

Free speech is an unpopular value; we only speak of free speech when the words in question are offensive. All the more reason why we need to understand why free speech matters and when to invoke the freedom of speech — and when not to.

Free Speech Flag

For example, when students at Yale last year called for the dismissal of a professor as residential college master for her views in an email, their call itself was an exercise of free speech. They were wrongly criticized for violating free speech, when in fact they were exercising their freedoms. That the students were wrong in their call to censor and punish a professor for her opinions doesn’t deprive them of their rights. Had Yale caved to their demands and dismissed the professor, however, that would indeed run afoul of the ethos of free speech. We must always recall that the overriding point of freedom of speech is to encourage and protect political argumentation, even political arguments like those that the students made, arguments that are wrong and offensive.

With that in mind, it is worth considering Daniel Sieradski argument in a New York Times Op-Ed this week. Sieradski argues that Governor Andrew Cuomo violated the First Amendment when he issued an executive decision to prevent NY State agencies spending taxpayer money to do business with entities boycotting Israel.

There are potentially good reasons to be critical of Governor Cuomo’s action. One could simply disagree with Cuomo politically and argue against him. And one can, and should, criticize the governor’s use of an executive action — all too common at both the state and the Federal level. According to the Times, the governor acted by himself, without the legislature “joking that passing legislation can “often be a tedious affair,” and saying instead he wanted “immediate action” on B.D.S., while challenging other governors to do the same.” Like the former President Bush and President Obama, Governor Cuomo is turning to executive orders because our legislatures are divided, slow, and broken. But the temptation to executive governance is the temptation to do away with democracy. And the willingness of people on both sides to justify executive governance is a sign of the times, an expression of impatience and even disgust with the weakness of our representative democracy, as well as an openness to stronger, more tyrannical, executive governance. We as a nation may soon rue our strategic and cynical embrace of executive orders.

Sieradski, however, wants to bypass the political arguments against Cuomo’s order and raise a Constitutional objection. He argues that Cuomo’s action violates free speech. Sieradski writes that as a Jew, he has the personal right to decide whether or not to boycott Israel. He is opposed to the boycott of the State of Israel, personally, but does engage in a personal boycott of companies. He is right that he has that right, as do all Americans. A boycott is a legitimate expression of a political point of view.

Similarly, Sieradski applauds the Governor’s decision to have New York State employees boycott North Carolina, Indiana, and Mississippi for discriminatory laws against L.G.B.T. people. Doing so, he writes, is an acceptable boycott by the State of New York. Again, he is right.

But when New York boycotts those who boycott Israel, Sieradski argues, it violates the First Amendment. He writes:

“But I also believe that economic boycott is a legitimate form of political expression, one that the government has no business restricting by withholding state business. Paradoxically, Mr. Cuomo has engaged in a type of boycott himself, issuing three executive orders banning nonessential travel by state employees to Indiana, Mississippi and North Carolina for discriminatory laws against L.G.B.T. people. Apparently, in Mr. Cuomo’s book, boycotts are acceptable against American states with discriminatory laws, but not against a foreign country that has systematically subjected millions of people to decades of oppression.”

The actual reason why Sieradksi believes that Cuomo’s boycott violates free speech is never given in the Op-Ed. It seems to be that the Executive Order “penalizes” people for their speech, as one Professor whom Sieradksi quotes suggests. But it is worth lingering over this point.

If New York State were to seek to fire an employee for exercising their speech rights or right to engage in a political boycott, that would clearly penalize them for their speech. It is indeed unconstitutional for a state to fire employees for exercising their free speech. Similarly, a college or university would violate its commitment to freedom of expression if it were to expel a student for his or her political expressions. A commitment to freedom of speech means that as much as we disagree, dislike, and disdain someone’s views, we must argue against them, not exclude them.

But does a state or a college also have the obligation to go out of its way to support people it disagrees with? If a student were to form a chapter of the KKK, the college cannot and should not expel them. Some universities have prohibited BDS chapters on campus. That is also a violation of free speech. But a university need not and should not support students whose views it finds reprehensible. It should argue vociferously against that student’s views. The university has a responsibility to judge the speech of its students and faculty and take positions on that speech. Freedom of speech does not mean a refusal to make judgments.

What is more, if a student whose views are reprehensible asks for financial aid, there is no reason the college should go out of its way to assist that student. To deny the student aid is not to violate his or her free speech, it is simply to make a judgment that the student is one that the college does not wish to spend its money supporting. Again, freedom of speech does not mean that we abjure our responsibility to make judgments about which students we want to spend our money to support. Of course, a university may decide, out of principle, to offer scholarships to students whose views are out of touch with others on campus. This may be a wise policy. But it is a matter of policy, one the university can decide.

Similarly, a state cannot penalize or fire or imprison or fine someone for their political speech. It cannot deny someone basic rights like welfare or social security. But cannot a state say that it will refuse to spend taxpayer money in discretionary pursuits with people whose opinions it finds offensive? To do so is not to prevent speech. It is to make a judgment that someone’s speech is so offensive as to require the state itself to take a position in opposition. Again, a state could decide otherwise. As of now a few states have boycotted North Carolina for its position on L.G.B.T. issues. And some states have acted to boycott those who boycott Israel. Others are not. These strike me as political rather than constitutional issues.

To think through Sieradski’s turn to free speech argumentation, it is helpful to ask what free speech is really about. And here, Hannah Arendt offers some insight. “We know from experience,” Arendt argued, “that no one can adequately grasp the objective world in its full reality all on his own, because the world always shows and reveals itself to him from only one perspective, which corresponds to his standpoint in the world and is determined by it.” For Arendt, the freedom of speech means that we will always hear other opinions, other perspectives, and other arguments than our own. Free speech is the foundation of all expansive and right thinking. “Only in the freedom of our speaking with one another does the world, as that about which we speak, emerge in its objectivity and visibility from all sides.”

At the root of Arendt’s uncompromising defense of free speech is her understanding of politics. Politics is never about truth. It is about opinion. We may be right to believe that Islamic fundamentalism is wrong (as are many if not most fundamentalisms); but that belief is an opinion not a truth. It is an opinion that has emerged over time through persuasion. If that opinion is to be maintained, it must be persuasive. We must argue for it and convince the majority that it is correct. That is why it is essential that we allow those who disagree to make their arguments. We should listen to fundamentalists and argue with them, not dismiss them, caricature them, or punish them. That is the best way we can truly confront, disagree with, and defeat our enemies. The same is true for those who are racist, sexist, or anti-Semitic.

In writing about free speech, Arendt continued:

“If someone wants to see and experience the world as it “really” is, he can do so only by understanding it as something that is shared by many people, lies between them, separates them, showing itself differently to each and comprehensible only to the extent that many people can talk about it and exchange their opinions and perspectives with one another, over against one another.”

For Arendt, the freedom to speak one’s opinion is the root of politics and that is why it is important as a civil right, the right to say what one thinks. Free speech is also necessary to prevent the opinions of the majority from uncritical acceptance. And free speech, finally, is also a human right — it is the right to speak and act in ways that are meaningful within a community. If mankind is characterized by the ability to create and live in man-made, meaningful, and lasting artificial communities, the freedom to speak and act in public is the fundamental right that guarantees our humanity.

Freedom of speech means allowing those to speak with whom one fundamentally disagrees. But freedom of speech does not mean that we refuse to point out that those we disagree with are wrong, and sometimes deeply wrong. The antidote to hateful and racist speech is not suppression, but more speech. When individuals and groups spew hate, the government should and must respond, not with censorship, but with strong, direct, and clear arguments against the offensive speech. Free speech means the government cannot prohibit or punish speech. It does not mean that a government cannot judge speech. For judgment is the essence of politics.


Roger Berkowitz, Academic Director, Hannah Arendt Center for Politics and the Humanities, Bard College

Sieradski, Daniel. “Andrew Cuomo’s Anti-Free Speech Move on B.D.S.” nytimes.com. nytimes.com, 12 June 2016. Web. 12 June 2016

*** An edit was made to the start of the second paragraph, changing “the dismissal of a professor” to “the dismissal of a professor as residential college master.”