It was just a sticker. It said, “China Kinda Sus.”
That was the entirety of the message that led William P. Gilligan, president of Boston’s Emerson College, to write a letter to the whole college community accusing the conservative student group that distributed the sticker of “anti-Asian bigotry and hate.”
It didn’t matter that the message was a criticism of the Chinese government, not Asian people. Nor did it matter that one of the students handing out the stickers, KJ Lynum, is herself Asian (in fact, one-third of the group’s members were Asian). The college suspended the group and found it guilty of violating the school’s “Bias Related Behavior” policy.
Later, disheartened by the experience, KJ dropped out of school.
On campus and increasingly beyond, labeling speech “hateful” makes those in authority feel empowered to shut it down. It should be no surprise, then, that the label is sometimes used frivolously to emotionally manipulate people into accepting unjustified exercises of power, including the punishment of the expression of ideas.
Off campus, activists used the label to try to pressure Netflix to take down recent comedy specials featuring Dave Chappelle and Ricky Gervais, while some Republican legislatures use it to justify banning the teaching of Critical Race Theory. When Elon Musk announced his plan to buy Twitter to promote free speech, some of America’s more eager censors lamented an “uncontrolled” internet where some people may be free to express opinions others dislike or find distasteful.
If you ask Americans, most will say they strongly support free speech protections. However, label the speech “hateful” and that support plummets, particularly among Democrats.
We’ve all heard the saying, “Hate speech is not free speech.” There’s just one problem with that mantra: It isn’t legally true, at least in America. The First Amendment’s protections for free speech do not include a “hate speech” exception. That’s due, in large part, to the problem of subjectivity: Who decides what’s hateful and by what standard? Donald Trump? Joe Biden? Should we ask Emerson President Gilligan? Eighty-two percent of Americans say we can’t agree on a definition of hateful speech, even as 40 percent say the government should ban it.
In the United Kingdom and Europe, where hate speech laws are common, they are used to punish everything from YouTube jokes to critiques of religious figures.
After failing for 40 years in America, the hate speech-inspired “words that wound” conception of free speech popularized by Critical Race Theory co-founder Richard Delgado in the 1980s might now be overtaking the “sticks and stones” approach—at least on campus and on social media. In Delgado’s conception, words can function as a form of violence: “They can assault; they can injure,” says the description of his 1993 book on the subject that he co-wrote with other CRT founders.
For most Americans in the ’80s and ’90s, especially free speech advocates, the conflation of words with violence was seen as a direct challenge to our liberal democratic order. Sigmund Freud once said, “the man who first flung a word of abuse at his enemy instead of a spear was the founder of civilization.” Equate words with violence and soon people will feel justified in using violence instead of words to settle their disagreements. Democracy, in which disputes are resolved not through violence, but through debate, discussion, and voting, cannot survive the collapse of that critical distinction.
The “words that wound” notion of speech inspired a movement for restrictive speech codes on college campuses. It was routinely defeated in court, but a growing number of students and college administrators still cling to this vision of enlightened censorship. “Hateful rhetoric is violent, and this is impermissible,” wrote the editorial board of the University of Virginia’s student newspaper earlier this year in demanding the school not allow former Vice President Mike Pence to speak on campus.
Ironically, the growing support for censorship may be due, in part, to free speech advocates winning in the court of law. As First Amendment protections have become stronger during the past half-century, the remaining legal cases often involve less-sympathetic speech at the margins, like that of the Westboro Baptist Church and white nationalists in Charlottesville. Younger generations of Americans who see the First Amendment protect wildly unpopular speech may easily forget—or may never have been taught—how the First Amendment empowered everything from the civil rights movement to the gay rights movement.
But how long will the legal bulwark against additional exceptions to free speech hold? As Judge Learned Hand put it during a 1944 speech, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.”
In short, if we don’t defend and promote a culture of free expression, we risk losing the culture and our legal protections.
What America needs now more than ever are vocal, nonpartisan free speech advocates to remind Americans why we defend free speech in the first place. We need advocates who won’t simply fall back on the circular “because the First Amendment protects it” argument. We need advocates who are willing to unapologetically stand up for the right to speak even the thoughts we hate.
We say “unapologetically” because, too often, even free speech advocates sound like they are apologizing for the offense speech might cause, genuflecting before other values and never issuing a full-throated defense of our speech rights. While such apologies may have their place, they risk distracting from free speech advocates’ essential point: That free speech is a fundamental human right for which we need not apologize.
That’s why our organization, the Foundation for Individual Rights and Expression, steadfastly refuses to take a position on the content of the speech we defend, aside from saying that it’s protected. Why say more? As Mark R. Hamilton, the courageous former president of the University of Alaska, wrote in a memo to his colleagues, “Attempts to assuage anger or to demonstrate concern by qualifying our support for free speech serve to cloud what must be a clear message.”
Freedom of speech allows us to authentically express our individuality, to learn about our world, and to live peacefully within a democratic society. Free speech is an essential ingredient for scientific progress, social justice, and artistic expression. Most simply, freedom of speech enables us to know what our fellow citizens really think and why.
Free speech makes free people. We must not give up the fight to preserve it.
Greg Lukianoff is President & CEO of the Foundation for Individual Rights and Expression (FIRE) co-author of the bestselling book “The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure.” Nico Perrino is Vice President of Communications at FIRE and the host of So to Speak: The Free Speech Podcast.
The views in this article are the writers’ own.