by Robert Steinbuch [1]

Freedom of press, expression, and thought means that government actors cannot prohibit such action.  But some governmental officials and academics seem not to understand the basic elements of this formula.

The common and thoughtful refrain amongst free-speech experts is that the best check on offensive public speech is more speech, to wit, “counter-speech.”  So, if someone says something deemed offensive by others, the proper response is not to prohibit the original offensive speech, but to respond to it. Indeed, it should be obvious that the First Amendment is designed to protect offensive public speech, because fairy tales and greeting cards are not under siege and need no such protection.

Therefore, comments attacking the substance of perceived offensive comments are permitted–indeed encouraged.  Ad hominem attacks, however, are not.  Attacks on the person, in contrast, are the archetype of attempts to quash speech rather than respond to it.  Indeed, it is no coincidence that such comments are both intolerant and contrary to free speech, as tolerance and free speech are inherently intertwined and serve as foundational principles in a classically liberal democracy.

Unfortunately, these concepts are not universally respected.  For example, former presidential press secretary Jay Carney, in both 2012 and recently, attacked the “judgment” of the editors, many now dead, of the French satirical magazine Charlie Hebdo for publishing a cartoon depicting Muhammad, the prophet in Islam.  These are ad hominem attacks, plain and simple.  These statements are wrongful and can be so labeled. Carney himself, however, shouldn’t be called an “idiot,” or the intellectual equivalent–of exercising poor judgment.  We are not in a position to morally evaluate his judgment, just his actions.  This difference really matters.

I suspect that those who make such ad hominem attacks believe that they are appeasing those offended by the comments at issue.  The result is quite the contrary, however.  This undermining of freedom of speech serves to embolden those opposed to our liberal, democratic ideals, as they correctly see no consistent commitment to the precepts of the  First Amendment that apply to offensive speech.  Rather, they see the flaccid commitment of a wind-sock philosophy.

Similarly, the decision of news outlets such as CNN, the New York Times, and MSNBC, amongst many others, unfortunately, to excise from their reporting public images that are indisputably newsworthy today because some people might find them subjectively offensive represents cowardice and contravenes the most basic journalistic standards.  Charlie Hebdo’s recent cover was no less news today than were the Pentagon papers in their day.

Media outlets don’t deserve, and will eventually lose, First-Amendment rights if they are cowed in their exercise thereof.  At minimum, these “journalists” should publicly admit that they are publishing less-than complete articles because terrorists were successful in quashing speech.  Admittedly, if I had a gun to my head, I wouldn’t antagonize the terrorist, but I would also concede my deficiency.

I can only imagine what soldiers, who I’ve personally heard say they are fighting for, inter alia, our freedom of expression, think when they see the effective abandonment of rights that their colleagues died to defend.

I’ve seen similar behavior in academia when those in positions of authority attack students whose comments are deemed offensive by accusing them of being “unprofessional,” or when academics undermine their colleagues by accusing them of lacking “collegiality” or “civility.”

For example, administrators at Chicago State University attacked some of its very own professors when the faculty members wrote a blog critical of some of the administration’s actions.  In the formal cease and desist letter sent to the faculty authors, the administrators charged that “the lack of civility and professionalism expressed on the blog violates the University’s values and policies requiring civility and professionalism.”  The bureaucrats didn’t challenge the ideas in the blog, rather they attacked its authors.  That’s saddening and indefensible.

I can think of virtually no actions more contrary to free speech, academic freedom, democratic ideals, and the search for truth that should be the inherent function of academia than those of the Chicago State University management described above.

All is not lost in the academic enterprise, though.  Organizations, such as the American Association of University Professors, reject such actions as contrary to academic freedom and, where applicable, the First Amendment.  And, importantly, the court in the predictably ensuing litigation in the Chicago case aptly derided the administrators’ self-serving, insidious, and cringe-worthy actions.

These attacks are inherently ad hominem.  They may be facile and convenient, but they undermine the core beliefs of a liberal democracy and academia.  The substance of these statements should be challenged, not the quality of the speakers.

Of course, I welcome alternative views on the topic.  But, needless to say, I don’t care to hear personal attacks that inherently undermine our foundational principles–and the law.


[1] resteinbuch@ualr.edu
Professor of Law
University of Arkansas at Little Rock — William H. Bowen School of Law
1201 McMath Ave.
Little Rock, AR 72202

Posted in: 4.2, Archive, Main News, News, Volume 4

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