Freedom of No Speech

You’ve probably heard about Ilya Shapiro’s fateful visit to my home institution last year, when my students shouted him off the stage because of his ill-conceived public posts about diversity in the judiciary. The incident, as I expected, played right into Shapiro’s hands, resulting in posts, public speaking engagements, and even a book. Anyway, we did some thinking about what our educational mission is and how exposure to diverse viewpoints improves our students’ lawyering skills, and invited Shapiro to come back to campus. This time, he was interviewed and listened to, and my terrific colleague Emily Murphy, the rightful recipient of our teaching award this year, with quiet logic and incisive questions, showed him for the unserious person that he is. It was a triumph of what free speech can accomplish that shouting cannot.

Shapiro might or might not have come to regret his silly tweets, but in today’s Free Press, Kat Rosenfield writes about how the pendulum has swung from shrill mob hit jobs on people because of things they posted in high school to venerating them for the vile things they spewed. She observes:

[O]ne of the worst things about the peak woke years was progressives’ insistence that not only should speech come with consequences, but that those consequences should be maximally punitive, with no possibility of redemption.

This led to an equal and opposite consensus among the MAGA folks that offensive internet posts should merit no consequences whatsoever, and perhaps should even be celebrated for triggering all the right people, which is to say, people on the left.

Which is fine, if you want to live in a world where the discourse is permanently dominated by shrieking authoritarians on one side and smirking edgelords on the other. In this world, the only difference between being an internet folk hero and being canceled to death is whether the current White House occupant is a Democrat or a Republican. It’s a world where we are all being driven slowly insane by perpetual exposure to the inner brainworkings of people who cannot tell the difference between a thought you should broadcast on the public internet versus one you should leave unexpressed—or at least keep confined to the relative privacy of a group chat.

I used to say in public talks that the right to say no to unwanted sexual conduct should also encompass the right to say yes. And I’ve come to believe that this two-way-street is true for speech, too: in the same way that the right to religion encompasses the freedom *from* religion, the right to speak also folds in the right to freedom *from* speech.

After years of punditry, etc., done in my area of expertise as an academic (including, as regular readers recall, almost daily TV spots during Trump’s first term), and thankfully without any major scandal or public degradation, I got pretty tired of hearing my own voice and of the deleterious effects on my life, and left social media (I left Twitter years ago, and left Facebook recently, and explained why here). The effect was prodigious – my quality of life improved manifold. It’s incredible to realize how little value the platforms offered me, how enriched my life is by freeing time for family, sports, music, academic obligations, and talmud study, how–slowly but surely–my cognitive capacity and concentration are returning, and how I can engage and be present for my students when I don’t have strangers’ bloviation clouding my mind. It’s amazing how clear I can be during meditation or prayer (hey, work of a lifetime, but noticeable progress). It’s amazing how absorbing arguments in a naturally paced manner allows me to control my temper, be more thoughtful, and respond in measure, sensible tones. True freedom.

I don’t know how I can convey to my students, who are in their early twenties, the wonderful gift of thinking your thoughts quietly to yourself and discussing them in person with your family and friends to the extent that you’re interested in doing so. Not just because of the public square ugliness, the fear of excoriation, etc., but because there is such beauty in the silence of having that thought rattle in your head, examined against evidence, and subjected to patient debate with people who care about you and about what you think.

I still make public appearances, but I’m pretty selective about who I talk to, how, and about what. I think my op-eds during the pandemic were important for changing a pretty destructive public tide. I gave them a lot of thought and put work into crafting them so that the message would make sense and find receptive minds. That’s the sort of thing I hope to cultivate in the second half of my professional life.