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Stephen L. Carter: Do Americans even know what free speech is?

Summary: On the one hand, the fact that so many Americans think they’re being crowded out of the public square is reason for sorrow. On the other, if it’s true that most of the country believes its free speech rights to be imperiled, perhaps there exists a majority — dare we call it a silent one? — that will resist any effort to tamper with the First Amendment. For democracy, that would be a big win.

George Floyd protest in downtown Miami, FLorida.
Demonstrators march during a George Floyd protest in downtown Miami, Florida, on Saturday, May 30, 2020.
Al Diaz/Miami Hearald/TNS
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The Knight Foundation and Ipsos have a new survey on Americans’ views about free speech, and for those of us who consider spirited and even wrongheaded debate crucial to democracy, there’s both good news and bad.

Let’s start with the good news. Asked whether freedom of speech is an important constitutional right, 99% of respondents in the Knight survey said yes. The only other right with such near-unanimous endorsement is the equal protection of the laws.

So much for the good news.

The bad news is that on nearly every practical aspect of speech, divisions are sharp, partisan and afflicted by both the availability heuristic and recency bias.

It’s striking, for instance, that Democrats, at 86%, are by far the most likely to agree on the importance of “preventing people from inciting others to violence.” Republicans are at 68% and independents at 71%. How did the party of the left become the champions of law and order, and a significant minority of the GOP defenders of incendiary rhetoric?

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That’s where the availability heuristic comes in. Everybody seems to be focused on Jan. 6, 2021 — and perhaps overreacting to an isolated event. Thus Democrats are forgetting their history of supporting those accused of fomenting violence in the cause of battling oppression, and Republicans are discarding their traditional insistence that protesters must make their cases without disturbing public order.

I’m not suggesting that Republicans as a group support the Capitol rioters — in the survey, only one-third describe what happened as legitimate First Amendment activity. I’m suggesting only that a few years ago, the GOP numbers would have been higher. (Incidentally, 12% of Democrats, perhaps captivated by rosy memories of armed Black Panthers marching into the California statehouse in 1967, also believe that the violence at the Capitol last January was an exercise in free speech.)

Which brings us to everybody’s favorite bugaboo, the problem of misinformation. Even though Democrats (89%) are significantly more likely than either independents (73%) or Republicans (63%) to label “preventing the spread of false information” as either “very important” or “extremely important,” the larger headline is that strong majorities of every group agree.

That’s a problem. Free speech, like other constitutional rights, only makes sense if one is free to use it unwisely. Otherwise, there’s no freedom to speak; there’s only a freedom to speak what some arbiter declares to be the truth.

Alas, the Knight-Ipsos survey includes no queries about who gets to decide which particular information is mis. But there’s a hint when respondents are asked whether they agree with this statement: “Online news providers should be allowed to publish any story without the government having the ability to block or censor them.”

Again, the results are discouraging. A mere 60% of Democrats think that letting the government “block or censor” the news is a bad idea. Independents stand at 70%, Republicans at 77%. All these numbers are worrisomely low — at least for those raised on the idea that democracy relies on roughing-and-tumbling our way through robust, open and unregulated public debate.

Speaking of rough and tumble, majorities of every political group believe that the 2020 racial justice demonstrations were a legitimate exercise of First Amendment rights. That’s good news.

The bad news is the sharp partisan division over the status of protests against the results of the 2020 presidential election. Strong majorities of both independents (60%) and Republicans (73%) consider those protests legitimate acts of free speech.

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Only 39% of Democrats agree. (At the same time, hardly anybody believes that burning or defacing the American flag is an appropriate form of protest. That only 16% of Republicans think so is unremarkable. That only 36% of independents and 37% of Democrats think so is a surprise.)

I’m hoping this low figure reflects once more the inability to turn away from legitimate outrage over the Capitol Riot. But sometimes turning away helps us see a bigger picture.

There’s much more in the survey that’s worth a look, but I’ll mention just one last item. A recent trend in First Amendment scholarship views free speech principally as a protection for the voices of outsiders. In the Knight-Ipsos report, every group sees itself as the outsider, struggling to be heard.

Republicans and independents are certain that liberals have superior access to the public square; Democrats think the advantage lies with conservatives. No racial group, not even White Americans, is confident of its own ability to speak freely. (Black Americans, by a large margin, are most likely to believe that their own speech is marginalized.)

On the one hand, the fact that so many Americans think they’re being crowded out of the public square is reason for sorrow. On the other, if it’s true that most of the country believes its free speech rights to be imperiled, perhaps there exists a majority — dare we call it a silent one? — that will resist any effort to tamper with the First Amendment.

For democracy, that would be a big win.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall.

©2022 Bloomberg L.P. Visit bloomberg.com/opinion. Distributed by Tribune Content Agency, LLC.

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