Sacrificing free speech to the heckler’s veto

The defacement of anti-Muslim ads on the New York subway was not an act of free speech - it was an act of censorship of offensive views.

Wendy Kaminer

Topics Free Speech

‘New Yorkers Resist Islamophobic Ads.’ So said a caption on ThinkProgress, a liberal blog produced by the Center for American Progress, in a report about the defacement of ‘racist’ anti-Muslim ads on the New York subway.

The ads, placed by the American Freedom Defense Initiative, declare: ‘In any war between the civilised man and the savage, support the civilised man. Support Israel, Defeat Jihad.’ They have been attacked and defaced, including by the American-Egyptian journalist Mona Eltahawy. The post on ThinkProgress, written by Ben Armbruster, didn’t explicitly endorse vandalism as a response to offensive political messages, but the caption, which was later changed, made its implicit approval clear: describing vandalism as ‘resistance’ ennobles it.

I’m not deriding the anger or anxiety provoked by the ads: Muslims have suffered repression and discrimination at the hands of private groups and government officials since 9/11. The hesitancy of progressives to defend ‘Islamophobic’ speech from vigilantism reflects, in part, the time and energy they spend defending the rights of Muslims. Standing up against vandals who ‘stand up’ to hate must feel like switching sides – unless you habitually take the side of free speech, regardless of who’s talking.

The original American Freedom
Defense Initiative campaign

But, as I frequently lament, American progressives are abandoning the First Amendment in favour of regulating whatever speech they deem hateful, discriminatory or merely uncivil. Eric Posner made a familiar case for censorship at Slate, in response to the recent unrest provoked by the anti-Muslim film Innocence of Muslims, in which he stressed that free speech is not a universal value – as if that were a good reason for discarding it in favour of a heckler’s veto. ‘Try explaining [First Amendment guarantees] to the protesters in Cairo or Islamabad’, he concluded triumphantly, as if we should allow their sensibilities to define our rights.

I doubt that Posner and other aspiring censors would consistently apply the general proposition that speech should be repressed if it provokes protests, including some that take the form of riots. If a group of agitated free-speech advocates picketed outside his office to protest against his dangerously anti-libertarian views, I doubt he’d agree to stop disseminating them.

Posner’s column merits mentioning not because he raises any interesting new arguments that call for interesting new responses (he doesn’t), but because his credentials as a University of Chicago law professor enhance the old arguments and reflect the increased respectability of censorship among educated elites. ‘There is a distinction between unpopular and unwelcome political views’, Harvard professor Diana Eck nonsensically declared last year, in an effort to justify cancelling the courses of an economics professor whose op-ed about terrorism offended a group of Harvard students. What precisely is the distinction between unpopular and unwelcome political views? I think it’s the distinction between speech Professor Eck likes and speech she doesn’t like – in this case speech against beleaguered religionists.

Sympathy for the downtrodden too often translates into sympathy for violence or vandalism on their behalf against particularly ‘unwelcome’ speech. Indeed, vandalism is perversely defended as a form of free speech: ‘I am proud that I spray-painted that racist piece of shit poster’, Mona Eltahawy tweeted after her arrest for defacing the subway ads she found offensive. ‘It’s protected speech and what I did us [sic] also protected speech.’

Eltahaway is a journalist; she should understand the obvious – that the principle she espouses would give people offended by her work equal rights to destroy it. But maybe she doesn’t believe her principle should be consistently applied. Maybe she hopes to outnumber, out-manoeuvre, or out-brutalise her opponents. Maybe in her view, the sword should be mightier than the pen.

Of course there’s a difference between acts of vandalism and violence; there’s a difference between sympathising with people who deface subway ads and people who attack human beings. But it is mostly a difference of degree. And while solicitude for the targets of hate speech rarely translates into explicit endorsements of violence, in respectable circles it often produces calls for censorship that blame the speech for the violence, more than the people who engage in the violence.

You can’t ‘yell fire in a crowded theatre’, we hear incessantly, as if that hoary phrase sufficed for argument. ‘Three generations of a hackneyed apologia for censorship are enough’, Ken at the Popehat blog protested recently, in an essential takedown of the Oliver Wendell Holmes ‘fire in a theatre’ proverb. Holmes first used it to justify the criminalisation of dissent and uphold the conviction of Charles Schenck for condemning the draft during the First World War.

One person’s hate speech or threat to national security is another person’s dissent. Who knows whether the New York subway ads would have struck Holmes as the equivalent of falsely yelling fire. (And, really, who cares?) People who share their anti-Muslim sentiments probably regard the ads as essential political speech and, not sharing their sentiments, I’d still have to agree.

Wendy Kaminer is a lawyer, writer and free speech activist. Her most recent book is Worst Instincts: Cowardice, Conformity, and the ACLU. (Buy this book from Amazon (UK).) A version of this article was first published at

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Topics Free Speech


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