09/26/2014 11:37 am ET Updated Dec 06, 2017

7 Things Cracked Got Wrong About Free Speech

On Tuesday, Cracked's Chris Bucholz decided that he needed to set the Internet straight on a couple issues about freedom of speech. He got some things right, including that people really need to understand that the right to free speech does not protect them from criticism or mockery of their speech. Of course, this back-and-forth is kind of the point of freedom of speech, allowing it to serve (as Bucholz notes) as "a key element of a functioning democracy, [which] ensures minority groups can make their voices heard, and serves as the foundation for all the best (and worst) jokes."

But Bucholz got other things very wrong, perpetuating some of the more prevalent misunderstandings about free speech, which are unfortunately becoming increasingly common. So while we're writing listicles about free speech misperceptions, here is my list of things that Cracked -- and an awful lot of other people -- get wrong about free speech.

1. Free speech and the First Amendment are not the same thing. In fact, free speech is a much bigger, older, bolder cultural idea.

Ironically, the opening salvo in an article designed to correct misunderstandings of freedom of speech committed one of the most basic and fundamental mistakes that people make about freedom of speech. Bucholz's very first admonishment is that free speech "Only Prevents the Government From Restricting Speech." But that's neither precise nor correct, for two critical reasons.

First, this sweepingly broad statement conflates and confuses the concept and idea of "free speech" with its narrower legal codification in the First Amendment. As I explain in the short book I just wrote on this very topic, Freedom From Speech, the concept of freedom of speech is a far bigger, older, and more profound idea than the implementation of it found in the First Amendment, and it includes a number of cultural and intellectual values that go far beyond simply preventing the government from silencing someone. Free speech fosters values like "epistemic humility" -- an open-minded recognition that you may not always be right -- that lead in turn to hearing and engaging with opposing opinions, realizing that just maybe your intellectual opponent isn't a maniac with a fetish for mole people, and recognizing that divergent (and offensive) opinions are part and parcel of a tolerant pluralistic society. So while sometimes a last-ditch appeal to free speech indicates that the speaker is close to losing the argument, the speaker is also making an appeal to what they reasonably assume is a commonly-held value -- that they are entitled to their views and that the other side should at the very least hear them out.

Second, while it's technically correct that the United States Constitution only directly limits governmental behavior, Bucholz's statement misses the critical fact that sometimes, the government must protect you from being censored by others. For instance, the government has a duty to protect you from a hostile mob that doesn't like your ideas, from attempts to prevent you from speaking in a public park by those who oppose your message, and from "heckler's vetoes" designed to silence minority opinions.

2. Government employees, including campus administrators, ILLEGALLY restrict freedom of speech all the time.

Bucholz also points to narrow instances where the government can restrict speech, writing that "[t]he government, with the wisdom that we're pretty sure it must have, has determined that there are a number of situations when, no, it'd really rather not let everyone have free speech." But while this is sometimes true, Bucholz ignores the troubling reality that very frequently, the government's restrictions on speech are indisputably illegal, with very little wisdom in sight.

The government actors I am most familiar with, public college administrators, provide more examples of restricting free speech than I know what to do with. Here are just a few examples of recent and blatantly unconstitutional abuses of speech rights that my organization, the Foundation for Individual Rights in Education, has encountered:

At Modesto Junior College, a student was told that he couldn't peacefully hand out copies of the United States Constitution outside, on Constitution Day, because he was outside of a tiny "free speech zone." And when faculty members had the temerity to criticize the college's speech-restrictive policies, the administration went after them too:

At Bergen Community College, a professor was deemed to have sent a "threatening message" -- by posting to his own Google+ page a picture of his young daughter doing a yoga pose while wearing a Game of Thrones shirt, seen below.


The college relied on the absurd notion that the word "fire" could refer to an AK-47. How they could think this excuse would make them seem less ridiculous is anyone's guess. And at Chicago State University, an administration bent on silencing criticism has repeatedly attempted to shut down a blog authored by faculty members.

As a comedy writer, Bucholz should be especially wary of government assertions of the right to limit free speech. Comedy and satire are favorite targets of campus censors who too often lack both a sense of humor and perspective. I know of a few students who learned this lesson the hard way, like Chris Lee, whose satirical play Passion of the Musical was actually targeted for disruption by Washington State University administrators.

And that's just on campus. History is littered with lawsuits and government attempts to silence or censor comedic speech. These efforts have targeted a who's who of comedy archangels, like Lenny Bruce and George Carlin. It's troubling that someone whose work could so easily draw the ire of a censor fails to maintain a skeptical attitude toward government attempts to limit speech.

3. Free speech does not end any time it "conflicts" with other rights.

Perhaps it was sloppy drafting, but my heart sank when I read Bucholz's assertion that "when [free speech] conflicts with other rights, it can and should be restricted." This statement, taken to its logical conclusion, would gut the concept of free speech.

Freedom of speech maintains a privileged status in the United States, and for good reason: Once you start down the road of "balancing" freedom of speech against "rights" held by others, there is no end. Already we see a growing movement of those who mistakenly believe that they enjoy a "right not to be offended." The number of "rights" that will be asserted to justify censoring unpopular or uncomfortable speech is virtually limitless, and the exception will inevitably swallow the rule. Your Second Amendment right to own a gun, or your right to have an abortion under Roe v. Wade, do not and cannot protect you from those who would criticize these choices. You may have a right to privacy, but that doesn't mean that a newspaper can't report on your Rob Ford-ing it out.

At FIRE, we got so used to the argument that "free speech must be balanced against other rights" that a colleague would joke whenever we picked on him: "You see, Greg, your right to free speech must be balanced against my right to never being mocked." It got good (if sardonic) laughs in the office, because we so often heard from campus censors completely sincere versions of this tortured logic.

4. Enough with the fires and the crowds and the theaters already.

And then Bucholz pulled out the oldest, most stubbornly pervasive First Amendment cliché in the book: "we can't shout 'Fire!' in a theater crowded with dillbags." This old canard, a favorite reference of censorship apologists, needs to be retired immediately. Instead, it's repeatedly and inappropriately used to justify limitations on speech that some simply cannot stomach. Popehat's Ken White has already penned a brilliant and thorough takedown of this misconception; please read it before ever referring to your favorite target of censorship as being "like shouting fire in a crowded theater." People have been using this cliché as if it has legal meaning, while First Amendment lawyers roll their eyes and point out it is, in fact, "a caricature of logical argumentation."

Oh, and it's "falsely shout 'Fire.'" If there is, in fact, a fire in crowded theater, for the love of Odin, please let everyone know.

5. Yes, other countries do not value free speech the same way America does. That's not a good thing.

Bucholz's final point is that "Free Speech Means Different Things Depending on Where You Are." But, of course, everything means something different depending on where you are. The fact that other countries don't respect freedom of speech to the same degree as the United States is pulled out as a trump card by some to imply that belief in freedom of speech is just some naïve version of "American exceptionalism." Indeed, a number of American scholars came forward in the wake of the Benghazi attack recommending a modern version of blasphemy laws to protect the sensibilities of Muslims who don't like any perceived insult to their religion. What these authors seem to miss is that secular American intellectuals would probably be the first to be thrown in jail (or worse) under a genuine blasphemy regime. Those who argue "free speech is not that important because other countries don't value it" seem to expect me to simply accept this relativist view of free speech. Sorry -- I'm pretty old-fashioned this way -- but I think of free speech not just as an American value, but as an international human right.

Fortunately, Bucholz reaches the right conclusion -- that "silencing free speech for things you don't like hearing feels like a cop-out ... Offensive, irredeemable speech is, in the end, just speech, and can be easily refuted, exposed, or mocked once it's out in the open." As he acknowledges, great strides have been made in this country by groups who have faced persecution, "[s]o something must be working." That something is free speech.

6. Excessive concern for individual rights did not lead to Nazism. If the Nazis had hate speech codes, they would've been enforced by, you know, Nazis.

To add to the "shouting fire" cliché, Bucholz stumbled into the "hate speech laws make sense because hate speech laws would've stopped the Holocaust" argument. I've always found this one bizarre -- not only because the Weimar Republic was not really all that protective of free speech in the first place, but also because people seem to forget that if Germans were so concerned about anti-Semitism to pass protective hate speech laws, they probably wouldn't have voted for the Nazis in such large numbers.

The problem with the phrase "hate speech" is the same as the problem with the contention that free speech must be "balanced" against other rights -- it's subjective and undefinable, and most importantly, it will usually become a tool in the hands of authority.

As Jonathan Rauch, one of the earliest and most visible advocates for the rights of gays to marry, has pointed out: You're not going to get a society that values racism or anti-Semitism to pass and enforce a rule that bans either. On the other hand, however, once you reach the stage where the population wants to pass such laws, you probably have already passed some serious milestones for tolerance towards the group you're trying to protect. If you try to pass an enforceable law before these much more important cultural changes take place, you end up with a situation more like in Russia where laws purportedly in the name of protecting children are used against openly gay citizens. Watch the following speech by Rauch to understand how crucial free speech has been in the struggle for gay rights:

7. Maybe the greatest value of freedom of speech is that it lets people better understand the world they actually live in.

For my final point, I want to take a step back a little and focus on what I see as the biggest thing that people miss when talking about freedom of speech. Jurists like Oliver Wendell Holmes focused on how we need a battle between ideas so the best ideas win. That's true. But there is also real value to knowing what your fellow citizens think. And this may become more important, not less, if your fellow citizens think vile, terrible, misinformed things. (I tease this idea out in more detail here.)

By trying to blot out unpleasant words and opinions, government and mob censors alike are essentially declaring that they would rather know less about the world they actually live in -- and they've decided that you should know less about it, as well. The result is that the general public will be less aware of those attitudes and may thus be lulled into a false sense of security, blinded to the existence and prevalence of problems in their communities. FIRE Co-founder and Chairman Harvey Silvergate put this very insight into practice as a young lawyer for the Massachusetts ACLU, when he successfully defended a group of neo-Nazis in court even though he himself is Jewish. He did so partly because he understood that people are better off when they're aware of the presence of bigots in their midst: "If there are Nazis in the room, I want to know who they are so that I can keep an eye on them." Simply put, it it is better to know the world as it is than stick your head in the sand and hope you'll be fine.

I want to thank Bucholz (and I mean this sincerely) for his article, which inspired me to write about the biggest misconceptions I have seen in my 13 years of First Amendment lawyer. I think he was wrong on an awful lot of stuff, but by jumping into the fray of the "marketplace of ideas," he'll provoke an interesting discussion that never would've taken place otherwise. And that's all thanks to free speech.

Special thanks to FIRE's Ari Cohn for his help on this article.