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Defending Free Speech is a Dirty Job but Someone’s Gotta Do It: Talking the First Amendment with Nico Perrino of FIRE

SPIN | February 7, 2023

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The First Amendment, adopted December 15, 1791

It almost feels like an opium dream to think that rich-born White conservative William F. Buckley Jr. and queer Black struggling writer James Baldwin could debate each other in highly charged matters of race at a university of the Western world without the event being drowned out or torn up by legions of the righteous – if it was even permitted to be held in the first place.

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Yet debate they did on the topic of “The American Dream is at the Expense of the American Negro” at the University of Cambridge in 1965.

It took place without fist fights and smashed windows. Without pepper spray and torn up seating. Without pipe bombs or placard battles.

It was a contest of opposing spoken, structured arguments. Pressing the case for the affirmative, Baldwin was overwhelmingly voted the winner.

Neither debater then needed a phalanx of cops to rush them out a back exit clear of furious mobs.

Impossible to imagine anything like this happening today, even if debate and the safe exercise of free speech are at the very heart of the democratic process. For even in relatively free and open societies, free speech has no shortage of enemies.

To explore the state of play, SPIN IMPACT speaks here to Nico Perrino, Executive Vice President of the Foundation of Individual Rights and Expression (FIRE), an organization that fights censorship and defends the First Amendment rights of all Americans.


SPIN: Do you agree with Noam Chomsky’s statement: “If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.”

Nico Perrino: Yes. If we only care about preserving free speech for those we agree with, free speech ceases to become a value, and instead becomes a hobby.

 

How do you define free speech?

Free speech is the ability to be who we are and speak our minds. It’s essential for the democratic process, peace, creative and artistic expression, innovation, and prosperity. In order for free speech to thrive, it must be protected not only by the law, but also by cultural norms that encourage its exercise.

 

Why is free speech fundamental to democracy?

Nico Perrino, former member of death metal band, Angel Fire, and Executive Vice President of the Foundation for Individual Rights and Expression (FIRE).

Sigmund Freud once said that civilization started the day that man cast a word instead of a stone. And what is democracy, if not the use of our words instead of violence to solve our problems?

We debate, we discuss things, and then we come to some sort of resolution – to our conclusion about how we’re gonna live in a free society.

There really are only two ways to solve our disputes: words or violence. And democracy is the use of words.

To the extent you limit conversations in a democracy, you’re limiting people’s ability to participate in the democratic process.

Now, are there going to be people who have boneheaded, repugnant, even bigoted ideas? Yes. But we solve that problem by speaking to each other.

The moment that we give up on the idea that words can change people’s minds, that words can breed compromise, is the moment we give up on the idea of democracy.

All we are left with is force to compel belief. And that’s a very facile belief.

As others have said before me, censorship is like breaking the thermometer: you might not know what temperature it is anymore, but the temperature remains. So when you censor people you don’t change their minds – you just don’t know what they actually believe.

 

Which specific people and organizations in America are doing the most to undermine the First Amendment, and what are they doing?

The government is always the greatest threat to free speech. Totalitarian governments understand that in order to maintain control they must punish dissent.

New ideas are a threat to the status quo, and defenders of the status quo throughout history have always looked to censorship to preserve the current order of things.

For much of the 20th century, free speech was the darling of the political left as social justice activists utilized it to advance their causes.

Recently, particularly on college campuses, it has been of growing interest to the political right as conservatives see their voices muzzled in academia.

In America, colleges and universities have long been a battlefield for free expression. Colleges are our marketplaces of ideas, where knowledge is created, shared, and preserved. Restrictions on speech in such an environment are particularly insidious and concerning.

Where does FIRE stand on the ‘deplatforming’ of people making statements via social media that are deemed false and/or grossly offensive to many others? This, of course, would include President Donald Trump re the 2020 election, and Ye/Kanye West spruiking anti-Semitic comments and material.

In general, we think it’s valuable to know what people actually think. As the writer Jonathan Rauch once said, censorship is like breaking the thermometer: you may no longer know the temperature, but that doesn’t mean it’s no longer hot outside.

We should meet speech we disagree with, with more speech, not with censorship.

 

Ye, AKA Kanye West, should not be censored even when making anti-Semitic and other remarks offensive to many, says Nico Perrino of FIRE. (Credit: Christian Vierig/Getty Images)

 

Are restrictions against hate speech inconsistent with the First Amendment?

Yes.

The Supreme Court has never carved out a “hate speech” exception to the First Amendment. Nor should they. Hate speech is a subjective phrase: What’s hateful to you may not be hateful to me and visa versa. The phrase then ends up getting used by those in power to punish dissenting viewpoints.

 

A clear, unambiguous answer on a controversial topic? I’m not used to that.

At FIRE we are unapologetic in our defense of free speech, because we see it as a foundational human right that is essential for human progress, creativity, innovation, democracy, and peace. We don’t mince words in defending it.

Too often the defense of free speech comes with a lot of throat flaring and genuflecting before other values, before the actual defense of free speech comes out.

That doesn’t mean that the right doesn’t come with complications or consequences, but we think that on the whole it’s better to defend it than to not.


What are your thoughts on Elon Musk? After presenting himself as a champion of free speech, since buying Twitter just seems to be thrashing about.

Elon Musk is a man for whom I had a lot of hope. I mean, Twitter in the past has censored far more than it should have. It removed journalism about Hunter Biden’s laptop that it tagged essentially as misinformation but ended up actually being true.

That’s one of the problems with the ‘misinformation’ category in general: it’s used to censor.

They took off conservatives who expressed conservative viewpoints about gender ideology. They removed a satirical conservative publication, kind of like the Onion, called the Babylon Bee. They often did this with little transparency and utilizing speech codes that were vague, over broad, and it was not easy to know what offended them.

Enter Elon Musk. He says that free speech is important for the future of civilization: check. He says free speech is important for understanding the world as it is: check.

Then he takes over Twitter, and very shortly and without notice starts implementing new speech codes. Very little transparency. He suspends the accounts of critical journalists. He suspends those who share links to competing platforms. Things that offend the ethos of the modern open internet.

And he often does this through polling Twitter users, which, when freedom of expression is something that should not be up to a majority vote, is troubling.

I’ve been discouraged by his recent actions. And, more broadly as people see that some of the most vocal advocates for free expression are themselves hypocrites on free expression, it’s tarnishing for the brand, and it makes the work that we do at FIRE more difficult.

But Elon Musk is now the man with power, and he’s, he’s suffering from the curse of power, which is censorship.

It looks like a shiny tool when you have it in your hands and have the option to use it.

Social media is the hot space right now. There’s a lot of efforts to regulate it, often with deleterious consequences for freedom of speech. This is what happens when new technologies come into being. They bring in new challenges and often legislators seek to use the bluntest instrument possible to address those challenges. And that is censorship, and that can’t be counted as constitutional.

 

When are restrictions against free speech appropriate or defensible?

First Amendment jurisprudence is the longest sustained meditation on how to have free speech in a free society and it has generally done a pretty good job of carving out reasonable exceptions to free speech, such as incitement to imminent lawless action, true threats, fraud and perjury, defamation, and speech integral to criminal conduct.

But some of the exceptions are dead letters. They haven’t been given teeth in recent years and they’ve never quite been overturned, but for all intents and purposes they’re dead letters.

Take the concept of ‘fighting words’, for example, whereby their very utterance they can supposedly animate people to anger and violence.

In the free-speech world there’s this principle that we shouldn’t deprive people of agency. So, the idea that I can say a word that deprives you of your agency and throws you into a fit that results in you committing violence is not what we should expect of a society in which we privilege personal responsibility and individual freedom.

Another dead letter is obscenity: the idea that something has no intrinsic artistic or literary value and so offends the standards of common decency that it should be censored. It’s an exception that’s very rarely seen these days.

 

How has support for free speech changed over time?

FIRE President & CEO Greg Lukianoff calls free speech “the eternally radical idea” because it is always under threat.

The arguments for it need to be made with every generation, because it’s not something that comes intuitively to us: “Let’s let the people we disagree with speak.” We’re not evolutionarily designed to allow for that. We’re tribal creatures who seek to expel discomfort, and free speech is discomfort.

Poll results are always a mixed bag. People get asked: ‘Does the First Amendment protect hate speech?’ And many of them [incorrectly] think it doesn’t.

Then you ask them, ‘Should the 1st Amendment protect hate speech?’ And many say it shouldn’t. It’s about fifty-fifty.

And then you ask them, what does ‘hate speech’ mean? Turns out it means different things to different folks. That’s part of the reason why the Supreme Courts never outlined a definition.

 

The American Civil Liberties Union defended in 1978 the right of the American Nazi Party to march and assemble in Skokie, Illinois, then home to many Holocaust survivors. Pictured here is Nazi leader Frank Collin addressing a press conference. (Credit: Getty Images)

I want to mention the American Civil Liberties Union (ACLU). Even growing up in Australia I saw coverage of it defending the 1st Amendment rights of neo-Nazis and the Ku Klux Klan. But with all the free speech dramas these days I just don’t see the ACLU on the scene. So I did some reading and saw that some of the old guard – former Executive Director Ira Glasser, and longtime ACLU lawyer David Goldberger – publicly saying that the ACLU seems to be deprioritizing the fight for free speech. Do you see FIRE as picking up the baton from the ACLU?

Yes. And Ira Glasser is a mentor of mine. I made a documentary about his life: Mighty Ira. He is a member of FIRE’s advisory council, and David Goldberger is a FIRE legal-council member. A lot of the old school ACLU folks are working with us these days. I grew revering those old school civil libertarians.

Norman Siegel [former Executive Director of the New York Civil Liberties Union] said that if he had a tattoo, it would be the phrase “neutral principles” across his chest. This is the idea of equality under the law; the same rights that benefit our enemies also benefit us.

And that’s the principle that they upheld. But they uphold it at a time when you saw free speech being used as a tool for civil rights activists, gay rights activists, suffragettes, and they understood the costs of cutting down those rights to go after neo-Nazis in Skokie [Illinois]. Or, the Klan in the South.

I fear that my generation in particular is forgetting those same lessons that the older generations learned and that motivated their defense of free speech rights. That’s why I made that movie, Mighty Ira: to remind my generation why these principles are important, and of the costs that come with not having them because we’re pursuing political expediency instead.

The ACLU’s first annual report was called “The Fight for Free Speech”. The second annual report was called “A Year of the Fight for Free Speech”.

Right now, the ACLU has 19 different issue areas, of which free speech is one.

Sometimes those issues are in tension, and it’s more difficult to navigate 19 different areas than it is to navigate one.

If you look at Michael Powell’s New York Times profile of [free speech tensions within] the ACLU, Ben Wizner, their foremost free speech lawyer, says FIRE only has one issue – free speech – while the ACLU has many more, and so it’s easier for them [FIRE] to do this work.

I don’t work at the ACLU so I can’t speak to those challenges. All I can say is the thing that motivates a lot of the work we do at FIRE today is the same thing that motivated many of my heroes, like David Goldberger, like Ira Glasser, to defend free speech in the most hostile environments.

If you watch my documentary [Mighty Ira], you’ll see David Goldberger sitting there on the Phil Donahue Show CHECK in 1978, surrounded by Holocaust survivors, a Jewish man himself, making the argument why the neo-Nazis should be allowed to rally in the town [Skokie] where these Holocaust survivors live.

God.

Talk about earning your third-degree black belt in free speech advocacy.

Now the ACLU and its position at Skokie is revered, but in 1978, it was reviled. So, there is something to be said for standing on principle, waiting for cooler heads to prevail, and making the arguments to bring people around to these fundamental values.

That’s why we’re pursuing our advocacy. We try to stay focused on the principle when everyone else is calling for censorship. We understand that in the long run censorship has always been a losing play.

We don’t look back on the efforts to ban comic books or censor the radio or censor the printing press as worthwhile endeavors. In fact, we look back at them silly – futile – but the people who were advocating for that censorship at the time thought of free speech taking place in those forms as just as dangerous as we look at speech happening on social media, for example, right now.

The censor never wins in the long run.

 

Authors James Baldwin (left) and Norman Mailer (r) at a reception of the American Civil Liberties Union in New York City avowing their support for first amendment-free speech rights guaranteed under the Constitution while under heavy fire for upholding Nazi rights to speak at Skokie, Illinois. (Credit: Getty Images)

 

By holding firm on free speech, does FIRE finds itself positioned differently over time in the political spectrum, with a changing cast of allies and enemies?

Oh, yeah.

One day last year we were defending pro-life students at the University of North Carolina who were going to have their funding for campus events revoked, and the next day we were defending pro-choice advocates in South Carolina, where that state legislature was looking at passing a law banning speech about abortion.

One day we’re defending a Jewish student group on campus. And the next we’re defending the Students for Justice in Palestine group on campus.

Or one day we’re defending a Turning Point USA group that’s being denied the right to be a recognized student group on campus because people find their MAGA Naga viewpoints offensive. And then the next day at Georgetown we’re defending the Bernie Sanders group on campus that has been told they can’t become a registered student organization and advocate for political beliefs.

We get accused of being conservative because we’ll defend the right of a student group to invite Gavin McInnes, funder of the Proud Boys, to speak at Penn State. But the next minute we’re criticizing Elon Musk, uh, for passing speech codes at Twitter and banning journalists that are critical of him – after saying that he’s a free speech absolutist.

That’s one thing that you learn in doing this work. You’ve always got to expect to defend speech on opposite sides of any issue. So in some areas people will see you as conservative and in other areas they’ll have the opposite view.

It’s really tough to find principal donors who are going to stick with you after you go after their side. So, we have a goal to create a free speech army: a group of principal free speech advocates who are not going to abandon the cause as soon as their side has the power to censor.

We lose donors all the time because they get annoyed by things that we’re doing, but at the same time we bring new donors into the whole. For the past 10 years, we’ve grown considerably. When I started at fire in 2012, we were 15 staffers and a budget of $2 million a year. Now we are a hundred staffers and a budget of $18 million. 

Part of that came from the growing profile of the issue that we focused on exclusively for 23 years: campus civil liberties, with our bread and butter being free expression. That issue rose in prominence over the last decade. As a result, funding to support our organization increased and we were encouraged to expand our mission beyond campus.

We found broad support for a principal, unapologetic defender of free expression in America which can become that tent pole organization that others can rally around when not just legal free speech rights are threatened, but also the cultural values that support those legal rights.

These include the ability to talk across lines of difference, to play devil’s advocate, and to support the sort of idioms that define many people’s American childhoods:

Sticks and stones may break my bones, but words will never harm me
It’s a free country
To each their own

These aren’t idioms that you hear as often anymore, because the culture for free expression is waning in a way that we need to reverse.

Stanford students protest outside an auditorium where former U.S. Vice President Mike Pence was due to address a Stanford College Republican (SCR) Forum. (Credit: Justin Sullivan/Getty Images)

I think of the pushback against free speech by people critiquing what they see as institutional racism and deep social inequalities of power. This is the argument that free speech favors those with the biggest platform and most cultural capital. Is that one of the bigger arguments against free speech? That it’s not free given power relationships?

Yes. It’s one of the bigger arguments.

It’s also one of the most bogus arguments that’s made against freedom of expression.

And..

Written by SPIN

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