‘Speech Is Always Causing Harm’: In Conversation with Nadine Strossen

Molly Bolding 3 March 2019
Image Credit: David Shankbone

Nadine Strossen is the John Harlan II Professor of Law at New York Law School, and she was notably the first woman and youngest President to lead the American Civil Liberties Union – one of the nation’s oldest and most prestigious civil rights organisations – from 1991 to 2008. She attended Harvard Law School, and now continues to work with the ACLU’s National Advisory Council, EPIC (Electronic Privacy Information Center), FIRE (Foundation for Individual Rights in Education), and the Heterodox Academy. I sat down with her before her talk at the Cambridge Union, where she discussed her latest book, HATE: Why We Should Resist It With Free Speech, Not Censorship, as well as her numerous legal accomplishments.

Being the youngest person to do something is usually fairly significant, but to be the first woman to do it at the same time is doubly so. I asked Ms Strossen if she felt these factors had contributed to a fresh perspective of the role.

“I was very concerned about the rights of young people, and of students: to be sure, the ACLU had always represented young people, some of our most famous cases…but what we had not done as systematically as I liked was to organise, or to help organise, campus chapters of the ACLU. My ideal would be for every college and law school to have an active chapter, and even high schools and younger. But that takes a lot of resources, especially if what you want to do is empower the young people themselves, not just give them back-up resources. So we made great strides in that direction. In terms of being a woman, you know that Ruth Bader Ginsberg was the founding director of the ACLU Women’s Rights Project much earlier, and she had also been on our National Board of Directors, but we had a lack of numbers in women leadership so I’m very happy to see all the women in leadership here,” she laughed and gestured to the small crowd of female liaisons and committee members that had gathered in the Kennedy Room. “So we had our own glass ceilings, and so in the 1970s the National Board of Directors adopted an affirmative action programme to make sure both the Board of Directors and what we call the lay leadership and the staff have sufficient numbers of women, racial minorities and others who had traditionally been under-represented.”

Despite all of this deliberation, Ms Strossen didn’t feel it had impacted on the trajectory of the work they were doing – quite the opposite, in fact.

“I don’t think [it did affect the work we did], in fact I think the reason why Ginsberg chose the ACLU as the focus for her advocacy on women’s rights – because there were organisations that were specifically and only dedicated to women’s rights – was she really wanted to be part of a general human rights agenda, and that’s how we had conceived our mission since 1918, ‘defending all fundamental freedoms for all people’, regardless of who you are or what pigeonhole society puts you in; regardless of what you believe, we’re gonna defend your rights. Some of our very earliest [members] – first of all, we had founding mothers as well as founding fathers, including some pretty famous women like Jane Adams, Margaret Sanger was one of our early clients, Emma Goldman – they were obviously prosecuted for advocating women’s rights including women’s reproductive freedom. So there was a long history that we benefited from. Ginsberg was really the person who put my sights on the ACLU, she came to speak when I was a student at Harvard Law School, and then she had just founded the ACLU Women’s Rights Project and that really put it on the map for me. I do see all rights as being interconnected and I think that your advocacy in any area, on behalf of any particular right or the rights of any particular group of people, is enhanced if it is part of a general human rights agenda.”

From my biographical reading about Ms Strossen,  I knew that she had been named twice by the National Law Journal as one of the ‘100 Most Influential Lawyers in America’, quite an accomplishment. I asked what exactly that meant to her; what does it mean to be an influential lawyer?

“I really want people to have a respect and appreciation for human rights, and to again put them in a larger context, so in any particular situation they won’t be thinking ‘oh I don’t like what that person is saying, therefore they shouldn’t be allowed to say it’, but to understand that the freedom of anybody to express any idea depends on the equal freedom of somebody else to express exactly the opposite idea. And it’s a rather abstract notion, right, because people say ‘oh, you’re defending the Nazis'”, she says indignantly, “but no, we’re not, you have to look through the immediate client to the underlying issue. So my priority has always been to educate in that sense – through my teaching and my speaking, I’m often just presenting the information and principles and not trying to indoctrinate or preach because I think the principles are so powerful, so persuasive, that if people understood them better there would be a lot more support.”

We moved on to talk about her book, HATE: Why We Should Resist It With Free Speech, Not Censorship, and how essential free speech is in an era where campuses are political in new, exciting but also worrying ways.

“As an activist, I’m generally an optimist – I’m always glass at least half-full”, as she picked up the glass of water from the table in front of her with a smile, “you know, in the United States – and I’ve read a lot of the press here, it seems very similar – it’s very fashionable to denounce students and deplore them and they’re ‘coddled’ and they’re ‘snowflakes’ and they’re ‘cry-bullies’, you’ve heard all the negative terminology, but for me it’s exactly the opposite. I am so heartened by the enormous activism on campuses in your country and in my country, on behalf of all kinds of justice causes. I know some people use the term in my country ‘social justice warrior’ as an epithet: to me, that is an absolute compliment, and that’s what I considered myself as a student way back when. Since then, in the interim, there were decades when students were quite apathetic and not even paying attention to political issues, let alone becoming involved themselves, running for office. So for me it’s just absolutely thrilling to see this upsurge of commitment to human rights. What has been worrying to me, and I see it not only from students but from people of all ages and all walks of life, is this understandable tendency to want to suppress ideas that are antithetical to whatever your own ideas are. That is just a common, human instinct!…I feel so passionately that the most effective way to advance these causes to which I’m obviously completely committed – equality, dignity, diversity, inclusivity, societal harmony, individual mental wellbeing – that censorship does more harm than good. And precisely because I want to advance all of those goals, as effectively as possible…”

Ms Strossen breaks off her sentence abruptly, to clarify: “I blame myself, and others who have my position, who clearly have not done a good enough job of persuading and educating students and others who think that there is a conflict between free speech and equality.”

“My goal, as an educator and as an advocate, is can I be more informative, can I be more persuasive in making that case? So at least in the long run, vigorous free speech for hated ideas is actually going to foster the other goals that we all care about.”

One idea that seems to crop up globally – and particularly on university campuses in recent months – is the idea of the ‘line in the sand’ when it comes to free speech: at what point does speech start to cause harm? At what point does your defensible right to speech become punishable?

“First of all, speech is always causing harm – my case does not at all rest on the completely preposterous notion that speech does no harm. Absolutely everything that anybody says can and does do some harm. So we lawyers use a phrase which perhaps sounds a little bit counter-intuitive, “that proves too much” – if we said that speech could be punished because it causes harm, then that would certainly justify censoring just about everything that comes out of Donald Trump’s mouth, but I don’t mean to single him out – it’s every politician. Because in a democracy, and the Supreme Court has repeatedly said, we protect speech precisely because it is so powerful. It has power to do a lot of harm as well as a lot of good, and we say the lesser of two evils is to depend on counter-speech and other non-censorial measures rather than entrusting the government to make those delicate decisions. But that said, our law does draw a wonderful line between speech that’s protected and speech that is punishable. Having taught free speech law for many years, I nonetheless gained an enhanced appreciation by doing the thinking for my book because what I had to do was take this huge body of law which is very amorphous and chaotic and inconsistent – it’s like your system, it develops in a common law approach. So a case here and a case there are not necessarily consistent with each other. But there are two broad, overall patterns – one is that speech may never be punished solely because we object to its content; its message, its ideas, its viewpoint. If that’s what we object to then we can respond with counter-speech and anti-discrimination laws and laws against hate crime and so forth. But – moving to from content to context – if in a particular context speech with a hateful content or any other content directly causes certain, specific, serious, eminent harm then it can be punished. And that’s quite a strict test – it’s often called ‘The Emergency Principle’, that you can only silence speech as a last resort. Sadly, a lot of examples of hate speech do satisfy that test, and the Supreme Court has created sub-categories that satisfy it, that are examples of ‘The Emergency Principle’: a true threat, where the speaker intends to instil a reasonable fear on the part of the audience member, so those demonstrators in Charlottesville who are brandishing lighted torches and firearms en masse, clearly that means to instil a fear and clearly that is punishable. When they were just marching and saying horrific things, “you will not replace us”, “Jews will not replace us”, that’s protected speech.”

My final question concerned the broad spectrum of the roles of the internet in this debate – as a place where billions of millions of words and a massive amount of communication is said or typed every day, free speech is a major concern. Having watched Mark Zuckerburg speak in Congress (amusingly, via Facebook), I wondered what Ms Strossen’s view was on this development.

“As with every medium – and that’s all it is, a medium – people can use it for good or for ill. Obviously, it’s much easier to disseminate hateful messages but it’s also much easier to disseminate counter-speech. Many people have gone online specifically to seek out hate-mongers and dissuade and redeem them and those efforts have been very successful. What’s really worrying is the content-monitoring that’s going on increasingly by those companies themselves, and they are as arbitrary and discriminatory in enforcing their so-called ‘standards’ as governments have ever been. So civil rights and human rights activists are complaining that their messages are being taken down as hate speech – Black Lives Matter, and so forth.”

Find Ms Strossen’s book, HATE: Why We Should Resist It With Free Speech, Not Censorship, here!