What Can’t You Say These Days?

What Can’t You Say These Days?

THE INDISPENSABLE RIGHT: Free Speech in an Age of Rage, by Jonathan Turley

Conservative voices are being silenced. We know this because conservative voices are telling us so, insistently, on social media and cable news programs, in speeches by Supreme Court justices and on the grounds of the Manhattan Criminal Courthouse. Casual observation might suggest otherwise — as does the data — but it has become an article of faith on the right that conservative viewpoints are being systematically suppressed, even criminalized.

It is true that many college campuses are inhospitable, at best, to speakers — including students — who challenge progressive beliefs. The conservative indictment, however, is more sweeping than that. In “The Indispensable Right,” the law professor and Fox News commentator Jonathan Turley lays out the charges unsparingly, accusing “the political left” of amassing “academic, corporate and government forces” in a campaign to cripple the First Amendment. The censors have the upper hand, he argues: Rioters are tarred as insurrectionists, unorthodox opinions are expunged from social media, medical experts are pilloried for questioning Covid protocols. “This,” he intones, “is the moment we have long feared would come.”

The end of days, by Turley’s accounting, was foretold at the start. The framers established the freedom of speech “in absolute terms” and then — the “original sin” — corrupted it by equating dissent with incitement in the Sedition Act of 1798, passed by Federalists in Congress and signed by John Adams.

Turley is hardly alone in depicting the act as a vindictive, partisan instrument or Thomas Jefferson as an inconstant champion of the free press. (“A few prosecutions of the most eminent offenders would have a wholesome effect,” he mused to an ally in 1803.) Neither is Turley the first to deplore the crackdowns on “disloyal” speech during times of national crisis, real or imagined.

Where he diverges from the consensus, and sharply, is in his portrayal of more than two centuries of free speech doctrine as a virtually unbroken betrayal of first principles. “Free speech demands bright lines,” Turley proclaims. In their place we have “trade-offs and concessions.”

The tests and distinctions of First Amendment law — the heightened protection of political speech relative to “low-value” forms of expression like obscenity; the balancing of free speech with other interests like privacy or public safety — are anathema to Turley. He views these as a cynical game, rationales for repression. The First Amendment, he says, is “objective” in its meaning and defines speech as he does: as an instrument of self-actualization. “Free speech is not about perfecting democracy,” he writes, “it is about perfecting ourselves.”

This is less a constitutional argument than a kind of wish fulfillment. It is far from clear what the framers intended, but they did leave clues (among others, their indifference to the prosecution of blasphemy) that they did not envision an unfettered right. The text of the amendment, as legal scholars such as Geoffrey Stone point out, is only “seemingly absolute”: It invites — it requires — interpretation.

While disdaining “ambiguity and uncertainty,” Turley fails to explore what the near-total deregulation of speech would look like in practice. Even so, he makes manifestly clear which speakers he is most eager to protect — and which he is not. There is not a word of solicitude here for the rights of physicians to confer with patients about abortion, or of schoolteachers to discuss gender identity and race, but there is a good deal of concern for the small number of Jan. 6 rioters who were prosecuted for seditious conspiracy.

The government, Turley contends, has a “sedition addiction”: It flings the label at its critics and paints their ideology as criminal. Never mind that the Jan. 6 sedition cases were the first such prosecutions in more than a decade, and that seditious conspiracy — unlike its repudiated and neglected corollary, seditious libel — pertains not to speech but to action.

Turley’s sedition obsession is hard to square with his unconcern about disinformation (a “conceit” of a censorious left) or the increasingly violent rhetoric of Donald Trump and his supporters. (In a note-perfect display of “whataboutism,” mentions of Trump’s invective are appended with litanies of intemperate comments by, among others, Democratic city council members and MSNBC hosts.)

Unlike Turley’s boogeymen, disinformation — whether election lies or anti-vaccine fallacies — is an actual problem that raises pressing questions about the reach and purpose of free speech protections. So do social media platforms run by ideologues. So does Trump’s assertion of a First Amendment right to subvert the peaceful transfer of power or intimidate witnesses and jurors during criminal trials. The freedom of speech might not be under siege, but it is under challenge — not least by those who cite it the loudest.

THE INDISPENSABLE RIGHT: Free Speech in an Age of Rage | By Jonathan Turley | Simon & Schuster | 420 pp. | $30.99