Freedom of Speech

If there was one thing that my father managed successfully to drum into me (through repeated harangues on the topic throughout my adolescence, particularly during the Nixon years), it was the notion that our American way of life rests on the sacred task of maintaining the four freedoms articulated by FDR in his 1941 State of the Union Address. Roosevelt actually called them “the four essential human freedoms,” but the shorter name seems to have stuck and they are, even to this day, known by that name. And known they are, even though the two “of”s and the two “from”s derive from totally different spheres of reality, freedom of speech and freedom of religion being constitutional rights guaranteed in law and freedom from want and freedom from fear being existential ideals towards which a society of decent, moral people should obviously strive.

There are, obviously, other freedoms that characterize our American way of life too, freedoms that together with FDR’s four create the foundation of free choice with respect to any individual’s course forward through life that truly is the basis upon which the republic rests philosophically as well as legally.  Today, I would like to write about the interesting question of whether those freedoms constitute moral obligations as well as legal ones.

Freedom of speech has always struck me as something basic and non-complex. And, indeed, the basic idea—that the free citizens of a free society should be free to speak their minds openly and without fear of reprisal on the part of the government—does seem simple enough. It seems even less difficult to decide whether freedom of speech should entail the right to express extremely unpopular views, as opposed to mildly idiosyncratic ones shared by few. When put that way, in fact, the automatic response of most would be that the essence of the concept pertains specifically to unpopular views, to opinions that one may personally wish to espouse but which a large majority of one’s co-citizens will hold in contempt. And when the speech in question has to do with religious beliefs, and particularly with unpopular religious beliefs, most would feel more, not less, sure of themselves: the right to preach the articles of one’s faith openly and without needing to care whether one’s view do or do not match the dogmatic principles of other people’s religions is at the very core of what it means to be free to practice one’s faith according to one’s own values and principles. Nor does it seem that difficult to find consonant with free speech the concomitant responsibility society bears to place limits on speech that risks to harm or defame others, or to betray secrets the public revelation of which would damage our national security.

What I would like to write about today, however, is how this should play outside the legal system and to ask whether the citizens of a free society personally have an obligation to tolerate in their midst people with whom they disagree vociferously and passionately.

We have just recently seen any number of cases in which people have paid extremely high prices for speaking out in public and expressing unpopular or offensive opinions.  First, let’s consider the case of Donald Sterling, the owner of the Los Angeles Clippers, an NBA franchise, who unleashed a firestorm of criticism when he was taped expressing overtly racist sentiments to a female friend. Four days later, NBA commissioner Adam Silver announced that Sterling was banned from the league for life and had been fined $2.5 million.  Silver also indicated that he would initiate action that could eventually force Sterling to sell the franchise, currently valued at $575 million. (Sterling paid $12.5 million for the Clippers in 1981 and will thus realize a profit of well over half a billion dollars, but that is apparently not the point.)

Legally speaking, this isn’t a freedom of speech issue. Sterling hasn’t been arrested, much less indicted. No one, including Adam Silver, has suggested that he committed any sort of crime by expressing sentiments privately to a friend merely because they are widely considered reprehensible. The police appear not to be involved. And yet, in a society that considers free speech to be one of its basic “four freedoms,” the man is paying an enormous price for having expressed an extremely unpopular sentiment in a private conversation. Surely, the NBA has the right to admit to the ranks of its franchise owners people whom they consider worthy and to expel those they consider unworthy. But I write today not to ask if they can, but if they should. Should the citizens of a free society feel as obligated morally as they actually are obligated legally to endure the company of people whose views they find repulsive? On the level of the individual household, the answer feels obvious: why in the world should Joan and I feel morally obligated to invite into our home people whose views on issues that are important to us we find repugnant? But when we move the discussion up to groups of citizens within society…and when the issue is further complicated by side-issues involving huge amounts of money, great dollops of celebrity, and the cachet of one of America’s most prominent sports leagues, things seem less clear to me.

To ask the same question in different words, should the right not to be arrested for expression a bigoted opinion be paired with the right not to be penalized by people who wish to punish those who hold opinions they find base and wrong? The right to associate with whom one wishes is, after all, also a human right enshrined in law in our country. And so, at least in a sense, the challenge is to find a way for those two values—the right to speak unpopularly without suffering recrimination and the right to disassociate from those who express obnoxious opinions with which one does not wish to be associated—to co-exist. Surely, the right to disassociate is part of the right to associate…but what about the right to impose crushing penalties on people who, having not committed any crimes, simply offend one’s sense of decency? Is may be legal…but is it the right path for the citizens of a free society to pursue?

Just a few weeks ago, Brendan Eich was promoted to CEO of Mozilla Corporation, the manufacturers of a very popular web browser called Firefox and any number of other computer and internet-based programs. Shortly after that, it became known that Eich was personally opposed to the legalization of same-sex marriage and had given $1000 to the 2008 campaign in California to promote Proposition 8, which proposition made same-sex marriage unconstitutional in that state until it was declared unconstitutional by a federal court two years later. By all accounts, Eich was hounded into resigning his position once his support for Proposition 8 became known. Making the soup even thicker is the fact that Eich was not accused by anyone of speaking ill of gay people or of discriminating against gay employees at Mozilla, simply of feeling, as do 47% of Americans, that same-sex marriage should not be legal. It amazes me—in a good way—that 53% of Americans support the concept of same-sex marriage. (For the results of the NBC/Wall Street Journal poll that yielded that number, click here. What amazes me is how quickly public opinion has changed, not that it has shifted in what seems to me personally to be the direction of fairness and reasonableness.) But 47% of the American population is still more than 149 million people…so one can hardly argue that being opposed to the concept is “like” espousing a racist worldview that has been roundly and totally rejected by society itself, even if not by every single member of it. The details obviously are quite different, but my question in this context is not that different from the one put forward above with respect to Donald Sterling. Clearly, a majority of board members at Mozilla found Eich’s views on same-sex marriage unacceptable and wrongheaded. And it is surely relevant that Mozilla is a private company run by a board that obviously has the right to fire any employee deemed more of a liability than an asset. But my question is not whether the board of Mozilla was acting legally, but whether they were acting morally.

In the first psalm, the Bible counsels strongly against sitting in a moshav leitzim. The term literally denotes “an assembly of buffoons” and the implication is clearly that one has a moral obligation to avoid the company of bad people and not to allow oneself to feel comfortable in their presence. Should that be the value that prevails here? Or should the citizens of a free society force themselves to tolerate people whose views about the world they find intolerable in their midst? Does it make sense to suggest that people should tolerate what they find intolerable? (Is that even possible without redefining either “tolerate” or “intolerable”?)  Where exactly is the line correctly drawn between making freedom of speech a social as well as a legal value, and enabling people to feel free to express hurtful, prejudicial attitudes without fear of reprisal?

And that brings me to J Street. As you are probably all aware, the Conference of Presidents of Major American Jewish Organizations voted on Wednesday to reject the application of J Street for membership. The vote was seventeen in favor and twenty-two opposed, with three abstentions. Nine members were absent for the vote. But even if all those absent and who abstained voted to admit, J Street still would have fallen short of the thirty-four votes it needs to join the organization.  

There is no possible explanation of the rejection other than as punishment for its views, deemed by many to be inimical to the best interests of Israel. Yet J Street self-defines as a pro-Israel organization whose stated aim is to encourage American efforts to end the Israeli-Palestinian conflict peacefully, diplomatically, and justly. I myself disagree with a lot of what J Street promotes. I think that many of their positions are naïve in the extreme, as do I also find their willingness to accept funds from people who are overtly hostile to Israel and their refusal publicly to disassociate from such people. But this too is one of those non-legal freedom-of-speech issues. No one is suggesting that J Street doesn’t have the right to exist or to put forth its views strongly or passionately. Nor does the Conference of Presidents have any sort of moral obligation to admit anyone at all who applies for membership. But for the Conference of Presidents to turn away an organization that has acquired a reputation as a major lobby group with 100 chapters (sixty of which are on college campuses) and whose constituency is made up almost exclusively of Jewish Americans merely because more than a third of its members do not approve of this or that policy J Street espouses or affirms—that puts it in the same basket as the others I’ve been writing about. We are not talking about legal obligations here—as noted just above, the Conference of Presidents has the right to admit to its ranks whom it wishes. But the right, even when self-arrogated, to speak for the American Jewish community has to entail a certain basic willingness to admit members from all across the spectrum, including those with whom sitting members disagree passionately. Nor is passionate debate with opponents fiercely loyal to their own opinions necessarily something to avoid. To obey the injunction not to sit in a moshav leitzim obviously points to the right to exclude leitzim from one’s personal ambit. But to define as leitzim any who hold differing opinions, including differing opinions with which one disagrees forcefully and strongly—that seems more than a bit of a stretch. The Conference of Presidents decided incorrectly in denying J Street membership.  Indeed, by inviting J Street into the tent, the scene would have only been set for J Street’s leaders too to learn from those who disagree with them, including those who disagree strongly and loudly, through dialogue, debate, and impassioned discourse.