Ask New York Law School professor Nadine Strossen why free speech is now more threatened than ever and she’ll compare today’s issues with the anti-communist zeal of the McCarthy era.
Conceding that “particular ideologies differ but the methodology is the same”, she says the effect is also similar, “in terms of people looking over their shoulders ‒ feeling that they cannot express certain views or even discuss certain topics for fear of having an adverse impact, socially”.
Back in 2015, she gave examples during a speech at Harvard University of how sexual harassment law had been used to discipline academics for talking in class about sexual topics, prostitution, pornography and adult films. In one case, a professor of early childhood education was fired for using vulgar language and humour about sex when teaching sexuality to university students. Another academic was punished for requiring his class to write essays defining pornography.
A committed anti-censorship advocate and feminist, Strossen says the current era is in fact worse than McCarthyism, with studies showing faculty members self-edit their research subjects. “And many of them are saying that there are certain subjects that are okay … but others are taboo.”
Strossen, who was in New Zealand this month at the invitation of the Free Speech Union, opposes all forms of censorship, whether that’s cancel culture or hate speech inciting violence towards certain sectors of the population.
Her German father was a Holocaust survivor and her maternal grandfather was a conscientious objector in World War I, forced to stand against the Hudson County, New Jersey, courthouse so that passers-by could spit on him.
Strossen became the American Civil Liberties Union’s first female president in 1991.
University-led
Now, halls of academia have become Petri dishes for censorship, she says. The trend began in US universities in the late 1980s and early 90s. Those early “hate-speech” codes were legally struck out as there were already protections under the American constitution, Strossen says.
“But universities repackaged the idea through other rubrics, including sexual harassment and racial harassment and biased reporting incidents. And, in addition to the university-adopted codes that allow the university to at least investigate, and perhaps even sanction, faculty members and students, a culture has developed that is very speech suppressive.”
In terms of hate speech, a slew of countries are bringing in their own legislation but New Zealand paused its proposal in February, which Strossen would applaud as she describes most legislation as vague and without real meaning.
Her 2018 book Hate: Why We Should Resist it with Free Speech, Not Censorship laid out her views on the consequences of hate-speech legislation, all of which boost intolerance. In some cases, speech will be driven underground. Some people will camouflage their intent in more subtle rhetoric, making it more appealing to a wider audience, while others will ramp up their oratory to hyperbole, seeking to become free-speech martyrs.
Feminists and martyrs
This brings us to the vexed topic of Posie Parker ‒ Kellie-Jay Keen-Minshull ‒ the British anti-trans activist who tried to speak in Auckland’s Albert Park in March, but whose voice was drowned out in a cacophony of counter-protest. Strossen describes this under the First Amendment in US law as the heckler’s veto, where the speaker is silenced.
Did that make Posie Parker a free-speech martyr? “Exactly,” she replies. “I would certainly never have heard of her; I’d have been unable to say, ‘Oh, Posie Parker’, unless that incident happened.”
It is at this intersection – of free speech and feminism ‒ that Strossen is at her most persuasive. In her 1995 book Defending Pornography: Free Speech and the Fight for Women’s Rights, she says in the introduction that the censoring of pornography is a “quick fix” that “would not reduce misogynistic violence or discrimination; worse yet, as this book argues, it would likely aggravate those grave problems”.
Twenty-eight years later, Defending Pornography is about to be republished, “because the porn wars have reheated. Again on both ends of the spectrum, they’re ganging up on sexual expression.”
But question Strossen about arguably the most pressing feminist issue in the world today, where women’s rights sit as opposed to transgender rights, and she ducks for cover. “I have not thought about it enough to say yes or no on the substance of the positions, but I am absolutely firmly committed to let those debates flourish.”
However, she was prepared to talk about one of the most polemical feminists right now, JK Rowling, describing her as “a good-faith feminist”.
“I think that it is inaccurate to accuse her of hatred. She has so strongly said, ‘I defend equality and full rights. And I understand that trans women are tragically subject to violence. I am also concerned.’ So, when you dismiss serious ideas and debates and discussions by branding it with a derogatory slur as hateful, you’re impoverishing the debate and ultimately alienating people who might be brought into the fold.”
Which begs the question: as another high-profile woman who has fought for women’s rights and free speech, has she ever had to fight for her reputation in the same way? Strossen demurs, saying her long track record means people largely accept her. “But at some point I think that it will happen.”
Hate speech
In the case of hate speech, there are provisions in the US under the First Amendment to prevent it for when “it causes imminent serious harm”, paraphrased as the “emergency concept”. In New Zealand, the Human Rights Act 1993 deals with the same issue.
For Strossen, taking action under such legislation should be the exception to the rule. She offers the idea of “counter speech”, which can take many forms, from proactive education that teaches tolerance and support for equal human rights, to information and analysis that rebuts the advocacy of discrimination, to even choosing to ignore the hate.
In concrete terms, how would she describe counter-speech to a student?
She immediately switches into gear: “I am so glad that you are devoting your energy, your talent, your intellect to fighting against racism and transphobia and every kind of hatred. I completely understand the natural commonsense instinct to suppress ideas that are completely antithetical to our own. Ideas that question our own most deeply held values. But I have to tell you, from my experience, which is many decades long, and from comparing notes with human rights activists around my country and around the world, it may seem counter-intuitive but actually, it does more harm than good to try to censor ideas we disagree with, because that’s never going to persuade the people who have those ideas.”
Yet, in the middle of the cancel-culture wars, Strossen remains hopeful that free-speech ideals will prevail. Earlier this month, 70 professors from her old alma mater, Harvard, led by psychology professor Steven Pinker, announced the formation of the Council on Academic Freedom.
“People understand that they need to do something if they care about free speech. Number one, they must care, no matter who they are, no matter what they believe. And number two, they’ve got to do something – or else it’s going to disappear.” l
