Here is a link to Jonathan Turley's paper in the Harvard Journal of Law and Public Policy.
Heed JT's warning. Freedom is not the normal state of affairs.
Here is JT's introduction.
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Throughout its history, the United States has struggled with movements that aim to silence others through state or private action. These periods have been pendulous, with acute suppression followed by relative tolerance for free speech. This boom–or-bust pattern for free speech may well continue. However, the United States is arguably living through one of its most serious anti-free speech periods, and there are signs that the current period could result in lasting damage for free speech due to a rising orthodoxy and intolerance on our campuses and in our public debate. Where fighting for freedom of speech was once a near-universal rallying cry, opposing free speech has now become an article of faith for some in our society. This has led to a rising movement that justifies silencing opposing views, often on the grounds that stopping others from speaking is, in fact, an exercise in free speech. This movement has both public and private components, but it is different from any prior period due to new technological, political, and economic pressures on the exercise of free speech.The struggle for free speech in the United States is interwoven with our history, from the colonial period to the present day. From the outset, there was a clear concept of free speech, but not a clear commitment to protecting it. Indeed, figures like Thomas Paine and John Peter Zenger raised many issues against the English Crown that are still debated today in conflicts over free speech and the free press. Anti-free speech movements tend to rise from deep fractures in our society in periods of unrest. The sense of great injury felt by many can be translated into a license to silence those who are seen as causing or exacerbating that injury. These periods provide an opportunity not only for government abuses but also for extremist groups to feed on social unrest. In recent years, various extremist groups have emerged on both ends of the ideological spectrum, from the Boogaloo movement on the far right to the Antifa movement on the far left. However, the greatest threat to free speech today is the growing support for censorship and speech codes in the mainstream of political and academic thought.
The intolerance for dissenting speech recurs across countries and historical periods. Orthodoxy is the enemy of free speech, and orthodox views are often the result of religious or social values. Heretical and immoral speech has long been the target of majoritarian anger, combining speech intolerance with religious dogma. At one time or another, virtually every religion has tried to compel outsiders to adhere to orthodox views, and blasphemy prosecutions continue in many countries today. Even after the adoption of the Constitution and the Bill of Rights, dominant faiths continued to use social or governmental controls to perpetuate their values, including abuses directed at other faiths. Yet the most damaging anti-free speech movements in our history tended to be secular efforts involving government-mandated or government-encouraged speech controls. That is true of the current threats against free speech, involving private groups and companies that have imposed unprecedented levels of speech controls across digital and educational platforms.
There has already been a great deal of discussion on the erosion of free speech in the United States. There is obviously no meter that continually measures free speech protection, so this debate is unavoidably anecdotal. Yet objections to the “cancel culture” now extend from academia to journalism to the arts. In each of these areas, long-standing principles of diversity and tolerance of viewpoints have been replaced by increasing rigidity and hegemony. Underlying these controversies is a fundamental debate over the meaning of free speech and its inherent harm. The notion of silencing others as a form of speech reflects a deep and widening disagreement over the protections for heterodoxy in a variety of different fields. Leading publications like the New York Times have apologized for publishing opposing views on issues, while leading journalists, editors, and columnists have resigned under fire for publishing dissenting viewpoints. Museum curators have been forced out for questioning calls for race-based policies on acquisition or preferences. When leading writers, from Salman Rushdie to J.K. Rowling to Noam Chomsky, signed a letter raising alarm over the growing intolerance for opposing views, they were denounced by colleagues. At the same time, legislative proposals to criminalize speech have been proposed in the cause of protecting democracy.
These conflicts are often dismissed because many are the actions or policies of private actors like Big Tech companies rather than a form of state action. While some have called to amend the Constitution to allow for greater speech regulation, others insist that blacklisting of authors or banning certain cable networks are not true free speech conflicts since they fall outside of the First Amendment. However, free speech values are neither synonymous with nor contained exclusively within the First Amendment. As will be discussed below, all of these public and private forms of censorship undermine free speech values.
The rise in speech regulation is often defended on the basis that free speech itself is a danger. This article explores the rationalization that speech controls are justified as a defense or response to the harm posed by opposing views. It is a framing that explicitly or implicitly raises the “harm principle” of John Stuart Mill—with a lethal twist. Many have long relied upon the harm principle in a myriad of areas to define the limits on government controls and action, particularly in defense of free speech. A type of Millian harm principle is now being used to justify both government controls and private action to silence those with opposing views. Indeed, the antifree speech movement on our campuses is often defended as a type of militant Millian movement, a construct that is neither faithful to Mill’s writing nor logical in its application. Yet that same rationale has been used by social media companies as the foundation for the robust censorship programs now enforced across the media in what is often called the “post-truth” environment.
This article looks at the anti-free speech movement and its reliance on the harm rationale. However, it is important to note that arguments for greater speech regulation often reject another aspect of Mill’s writings on free speech: the self-corrective or protective capacity of free speech systems. That view is treated as hopelessly and even dangerously outdated. One commentator wrote, “Many more of the most noble old ideas about free speech simply don't compute in the age of social media. John Stuart Mill’s notion that a ‘marketplace of ideas’ will elevate the truth is flatly belied by the virality of fake news.” Such claims are often presented as manifestly true. The fact that “disinformation” or hateful speech exists on social media is treated as evidence that traditional Millian notions of free speech are proven failures. Such a view ignores that neither Mill nor his adherents ever claimed that free speech would chase bad speech from the media platforms or our lives. Disinformation and hateful speech existed in Mill’s life and have always existed as part of human interactions. Free speech does not cure stupidity; it merely exposes it. Likewise, speech intolerance is pronounced across the ideological spectrum.
Recent controversies have reinforced the view that forms of public and private censorship only make it harder for good speech to prevail. With the rise of speech controls, the faith of the public in both the government and the media has declined. As a result, people no longer have faith in what they read, or they confine themselves to siloed news sources. Ironically, while disinformation is often used to justify censorship systems, the current mistrust is a breeding ground for disinformation that feeds on the isolation and suspicions of citizens. That in turn undermines, rather than strengthens, our democracy. As Alexander Meiklejohn noted, the ability to marshal your own facts and reach your own conclusions is an essential component of self-governance:
Public discussions of public issues, together with the spreading of information and opinion bearing on those issues, must have a freedom unabridged by our agents. Though they govern us, we, in a deeper sense, govern them. Over our governing, they have no power. Over their governing we have sovereign power.
The distrust fueled by speech controls can undermine not just political but also public health discussions on issues like vaccines. Controlling information tends to diminish faith in that information.
In addressing these rationales for speech regulation, this article looks at our long struggle with free speech over the decades and how a new anti-free speech movement has emerged. This movement is proving far more effective due to a synthesis of private and public forms of speech regulation. The idea that free speech values will be instinctively and jealously defended can no longer be assumed, even by academics and writers who have been traditional advocates for those values. That raises the question of what alternatives exist to ensure free speech values are upheld in our institutions. This article proposes that free speech values can be legislatively protected, even coerced, by the government. There is a role for the government in reinforcing traditional enclaves for the exercise of the freedom of expression in our society. Indeed, with the rise of massive private systems of censorship, free speech may now depend on the government more than at any time in our history.
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