“Congress shall make no law … abridging the freedom of speech.” The text of the First Amendment is quite plain; no one's free speech, no matter who they are, should be threatened by the government.
In practice, though, public discourse around the First Amendment often focuses on the free speech of people who speak the most -- pundits, journalists, politicians, academics. We see free speech as the prerogative of the chattering class. The result is that some of the people who most need their speech rights protected are silenced.
One of the more recent media panics about free speech centered on CNN reporter Jim Acosta, whose White House press credentials were revoked in early November. Weeks later, and after his credentials were returned, Acosta's plight was still generating free-speech think pieces (like this one). And last April, conservative writer Kevin Williamson was hired and then quickly fired by The Atlantic because he said women should be hanged for getting abortions. The action unleashed a media firestorm. The Atlantic is not the government, and firing Williamson obviously did not violate the First Amendment. Nonetheless, as the New York Times said, the controversy “fell squarely into a burgeoning culture war over free speech,” with commentators insisting that his firing demonstrated “a crisis of free speech.” Bret Stephens in the Times said calls to fire Williamson were “illiberal,” and Williamson himself wrote multiple think pieces about how horribly silenced he was.
Suggesting free speech is threatened because The Atlantic fired a columnist for saying ugly and inflammatory things is silly. But the White House retaliating against journalists is genuinely dangerous and worthy of outrage. Experts at the United Nations have warned that Trump’s attacks on reporters -- including encouraging chants of “CNN sucks” at rallies -- could lead to violence against reporters. The accused pipe bomber who sent explosives to Hillary Clinton, George Soros, and other critics of Donald Trump also appears to have targeted CNN. The threat to journalists is why, when Jim Acosta lost his press credentials, even right-wing, pro-Trump Fox News expressed its support for the CNN reporter. (Though Fox personalities attacked him.)
Chattering-class free speech can be important. But it's telling that these controversies receive huge amounts of media attention, while threats to the free speech of people with smaller platforms -- and therefore more need for speech -- are given considerably less coverage. Threats to Jim Acosta and Kevin Williamson rally the class of people who are friends and colleagues with Jim Acosta and Kevin Williamson. Threats to people who do not have such friends and colleagues generate less attention and less outrage.
For example, the media response to the Trump administration's decision to prosecute nearly 200 people arrested at the J20 Inauguration Day protest in 2017 -- including several journalists -- was muted. If taking away one reporter's press credentials is bad, then threatening journalists and dozens of protestors with decades in prison seems like it would have to be worse. Moreover, while Acosta's credentials were restored in less than three weeks, the J20 prosecutions dragged on for 18 months before all charges were dismissed.
Yet mainstream pundits who cover free speech issues and were vocal about the first were oddly quiet about the second. CNN's weekly Reliable Sources program, which covers media and press issues, discussed Jim Acosta at length for three shows in a row in November. It provided no major coverage of the J20 prosecutions, even though the legal proceedings dragged on for a year and a half. And the show’s year-end wrapup of highs and lows for media in 2017 completely ignored the Trump administration’s prosecution of protestors, including journalists.The Atlantic followed the Jim Acosta story doggedly. In contrast, its only coverage of the J20 protests was a couple of articles about the government accessing IP addresses which mentioned the prosecution of participants in passing.
Or consider the passage of SESTA (Stop Enabling Sex Traffickers Act) last April, around the same time that the Kevin Williamson firing touched off a frenzy of free-speech hand-wringing. SESTA makes websites legally responsible for hosting ads for sex work on their platforms, creating a hole in internet safe harbor laws. The law claimed to be directed against sex trafficking, but in fact its (predictable) effect has been to force consensual sex workers off platform after platform. Craigslist shut down its personals section; Reddit removed sex-worker-related subreddits. Sex-worker-run blog Tits and Sass shared anecdotal reports that pimps were taking advantage of the shuttering of online ad platforms to harass and exploit women who could no longer use the internet to vet clients. This is congruent with research showing that homicide rates for women drop when sex workers can find and suss out clients online.
SESTA is an example of a restriction on free speech that literally gets people killed. But again, many mainstream pundits who write regularly about free speech issues didn't discuss it at all. The Atlantic’s Conor Friedersdorf, who wrote a 4,000-word piece about the dangerous precedent of firing Kevin Williamson, hasn't written about SESTA.
Perhaps the most glaring example of the way free speech concerns center the speaking class is the obsession with speech on college campuses. Even minor campus community conflicts involving professors quickly turn into national media feeding frenzies. As just one example, in summer of 2017, biology professor Bret Weinstein objected to Evergreen State College’s Day of Absence -- an event in which white students were asked to leave campus in a show of anti-racist solidarity. After confrontations with students, Weinstein went on Tucker Carlson’s far-right Fox News show, and the conflict metastasized. The New York Times’ Bari Weiss published an opinion piece on the incident, it was part of the evidence in a House subcommittee investigation of limitations on campus free speech, and Greg Lukianoff and Jonathan Haidt devoted substantial space to it in their book about creeping campus intolerance, The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure.
Compare this outpouring of interest to the response to a recent controversy at Stateville Prison in Illinois. In March 2018, a prison debate club presented a demonstration debate about “parole opportunities for prisoners with lengthy or life sentences” to a number of state legislators. After that, the debate club was arbitrarily suspended, and the debate coach, Katrina Burlet, was barred from the prison. After one prisoner, Eugene Ross, spoke by phone to reporters at a press conference about the debate club, he was taken into solitary confinement as punishment, he said, and he was released only after journalists and others advocated on his behalf. The New York Times did not cover this story; there have as yet been no congressional hearings.
Of course, many people argue that colleges are important venues for the cultivation of ideas, and that intolerance at Evergreen is therefore a story with national resonance. But prisons are also national institutions, and government silencing of speech inside them has broad implications for police power and law enforcement policy, and for what “liberty” actually means in the country with the largest imprisoned population on earth. Inmates who try to talk about conditions in prisons can be threatened with solitary confinement, as Washington State prisoner Arthur Longworth was after he published a novel criticizing prison facilities. Books like Michelle Alexander’s The New Jim Crow are banned from many prisons. Even if you think college campuses are very important, it’s hard to argue that the free speech rights of heterodox professors are really under more serious assault than the free speech rights of prisoners.
So why is the chattering class so fascinated with the free speech of the chattering class, rather than with the free speech of everyone else? The question is its own answer. People with power and large platforms tend to identify with other people with power and large platforms. Pundits are more likely to speak on college campuses than they are to be imprisoned. Therefore they worry more about free speech on college campuses than about free speech behind bars. You could call this chattering class solidarity -- the voiceful tend to stick together. Efforts to silence pundits and brand-name reporters and college professors are very serious. Efforts to silence everyone else matter less.
At the foundation of chattering class solidarity is the idea that free speech is mainly important because it allows the chattering class to chatter. Free speech discussions about Kevin Williamson, or Jim Acosta, or Bret Weinstein are centered on the idea that we need free speech so that we can have a vibrant marketplace of ideas in which important, smart people express important, smart thoughts, or report on the important doings of the powerful to which only they have access. “The great strength of American liberalism is its permeability, its openness to evidence and diverse perspectives,” Jonathan Chait argues. He is concerned about restrictions of free speech on campus, in particular, because the strength of liberalism is in its flowering of multiple ideas. Speech is free so that professors and lecturers can lecture and profess, reaching together toward a multifarious truth.
But if you take your eyes off the chattering class, free speech is less about opining and more about claiming the right to exist. For sex workers, being allowed to speak and advertise on the internet is the difference between a reasonably safe living and the constant threat of violence. When prisoners' free speech is restricted (as it generally is) they have no way to describe the conditions they live under, or the abuses they suffer. When ICE arrests immigration activists, they aren't able to criticize the government policies that target them. Jim Acosta was briefly barred from the White House, but without free speech, marginalized people often disappear altogether.
The chattering class needs free speech. But if we view free speech only as it relates to the chattering class, we miss the most important and damaging threats to speech. It's people with the least access who need solidarity the most. When we defend free speech only for the chattering class, the most important speech is left unprotected.
Noah Berlatsky is a guest contributor to Media Matters. He is the author of Chattering Class War.