How Free is Our Speech?

By Jonathan Wallace

It is easy to forget that "freedom of speech", as a reference to a system of regulation and protection, refers only to the interaction between the speaker and a government. When we hear a story about someone punished for speaking up on the job, or ostracized by neighbors, someone blurts out, "What about the First Amendment?" and must then be reminded that it only protects us against our government, not our fellows.

While I have said elsewhere that all speech is free, society provides a strong countervailing force, enwrapping us in a web of obligations and concerns which encourage us not to speak too freely. The same social forces that restrain us from violence also restrain us from speech.

I first became aware of the web of social obligation as a limit of freedom when I established a solo law practice in 1981 and invited another young attorney to join me. "I would like to," she said, "but I owe $7,500 on credit cards and I can't take the risk." Credit itself is a web which holds us in place in society, ensuring that we don't stray too far from the role--stable homeowner--which best ensures the quiet continuation of our society.

Fear of one's employer is probably the greatest damper on speech. Most of us must work to live, and the fear of harming our own advancement by espousing disfavored ideas must prevail in many people who would never admit to it. Ironically, the advent of unions provided greater protection for the speech of blue collar employees, but only so long as that speech was within the confines favored by the union. White collar employees, defined generally as those with discretion in the selection and order of their tasks, have no speech protection and are considered "at will" employees in most American states: they can be fired if the boss doesn't like the color of their tie or of their opinions. Only public employers, such as state governments or public universities, have any First Amendment restrictions on this kind of termination.

Universities, even private ones, with their concept of tenure, have provided a sanctuary for the expression of opinions which will never be heard elsewhere. Ask yourself why the only expressions of Marxist ideology heard in this country in decades are from academe, while France and other countries have a strong tradition of socialism and communism in all walks of life. The answer is that in the U.S., the university is the only employer who will not fire you for professing these ideas.

Another strong strand which discourages speech is an exaggerated respect for the attitude of one's neighbors. The experience of being whispered about or shunned in a public place is an eerie and powerful one, which has been surprisingly disregarded in literature. George Duhamel's novel, Le Combat Contre Les Ombres ("battle against the shadows") deals with a rumor campaign that all but destroys the protagonist, who does not find any justice at the end. By contrast, Hollywood is very fond of the story of the stubborn citizen who stands up to the community, only to be vindicated at the end. Possibly this is a wish fulfillment; I have said elsewhere that such films themselves form part of the social web because once we have watched someone else stand up, we leave the theater reassured that we ourselves will not have to.

A third strand is fear. The dark side of democracy is the tendency, so common in human nature, to enforce equality by preventing others, even one's closest friends, from rising. The message that we must not be different in any significant way is delivered so subtly that we may not remember that we have ever heard it. "I'm so glad I'm not smart," a number of girls said in my sixth and seventh grade classes. I am not talking here of political ascent, but of difference from others in any way, including intelligence. Many of these messages are reinforced most profoundly during childhood; children are a relentless pack of social animals, nipping and driving out anyone whose coat is of a slightly different color. Adults, themselves once children, most often tolerate this message when they do not actively reinforce it. Perhaps the last gasp of the sixties' revolt against this dreary sameness is the nineties idea that "infinite diversity in infinite variation" means drinking Dr. Pepper instead of Coke or wearing Old Navy instead of Gap.

A significant part of this training is that people in power must be making sense, because they are in power. A major part of my education was the revelation, which occurred at age sixteen, that the pricipal of my high school (for posterity: his name was Henry Hiltzik) was an idiot, even less mature than I was. Once you get in the habit, this "emperor's new clothes" phenomenon is quite liberating: one can approach the utterances of power from the other direction, the assumption that statements made by important people are arrant nonsense unless proven otherwise. Of course, this game can be enjoyed quite privately, as most people do, in conversations only with people they implicitly trust. By contrast, a public inability to suffer fools gladly is definitely a career-limiting strategy. I was threatened with expulsion from my high school; it certainly did not help that I had told the Dean of Boys "I don't like your attitude."

When you take a stand you must expect to be quite lonely, though of course you may be everyone's hero later, if you win. During the dark times, the greatest comfort (and a nice example of moderate human courage, from people who have nothing to gain) is the late night phone call, the private communication from those who cannot take a public stand but are telling you to "hang in there."

A second but closely related type of fear is that of violence from the marginal. If you speak publicly on gun control, you must expect someday to get mail from someone who tells you how many communists he killed in Viet Nam, how he would put you under himself if his eyesight was still any good, etc. Anyone who reads the newspaper knows that it is law enforcement's job to catch such people after they kill you (a job sometimes done poorly for political reasons, more often from ineptitude, lack of resources, etc.) Contrary to the expectations of naive people, law enforcement is really not in the profession of preventing people who have written you such letters from showing up at your doorstep. (A topic for another essay: how such correspondents promote their own vision of the world. By threatening you they make you think about buying a gun, thereby sharing their perception that the world is a dangerous place where everyone should go armed.)

A similar danger is legal activity from which no-one can or will protect you. The Church of Scientology (COS) has a reputation, going back many decades, for relentless pursuit of its opponents, using private investigators, distributing leaflets to their neighbors, and bringing a variety of lawsuits against them, principally on libel and copyright grounds. While the Church in prior decades used illegal tactics, it has become very effective in silencing opponents in recent times without needing to do so. Sex, Laws and Cyberspace, which I co-authored with Mark Mangan, had a chapter on COS; after it was published, I received a phone call from a COS publicist who in a strange, ranting voice, read me passages from the book, shouting "False!" after each one. This was followed up by a more civilized letter from an attorney, copied to my publisher, referring to unspecified factual errors and requesting a chance to assist in correcting them if there was ever a second edition. I did some research and discovered something my editor did not know: twenty years earlier, my publisher, Henry Holt, had withdrawn a book on COS as a result of a libel suit by the Church.

My editor took a courageous posture, to me, in response to the letter. The book never had a second edition: since it sold only moderately well, and the imprint which released it was soon after sold by Holt, there are reasons for this which have nothing to do with COS. But if the "COS cost of doing business" also came up in some conversation at Holt, I would never know about it.

COS is very shrewd. On the one hand, anyone who believes themselves libeled has a right to respond. The Church has also proved the point that it has a copyright in its secret scriptures by winning protection against their unauthorized distribution. On the other hand, COS knowingly raises the cost of writing about it: the message I derive from a phone call and letter like the one I got is to think twice. After all, COS is not really my battle, is it? I have other fish to fry.

Note the thought process I have just described. "I am a member of the mainstream, to whom COS is completely irrelevant, so I need never think about them. People who oppose COS are mainly its ex-members; marginal people who frequently present as obsessive and unbalanced in their pursuit of COS." In thinking this way, I have just woven a strand of the web of silence: those who are vulnerable to COS, or gun fanatics, or other attacks from outside the mainstream, are themselves marginal; they are not me. "We don't care what you do to each other, as long as you leave us alone," a policeman told me in 1971 when I asked him to stop a biker from punching a hippie.

Libel suits--a tool used not only by COS but by McDonalds' and most recently, even by Holocaust deniers--are an excellent tool to deter speech. You can lose the suit and still win the war by impoverishing your opponent. The consequences to the plaintiff of losing a libel suit are not very great, but the harm done the defendant even in winning it may be irreparable.

"If there are no consequences, people would just say anything they want." Principal Hiltzik said this at a meeting of parents to discuss his mismanagement of our school in 1970. I heard the same statement more recently in a discussion of business management styles, and found it last night in a discourse of Demosthenes to the Athenian council twenty-three hundred years ago. The most pervasive consequences of speech are not those of the state, against which the First Amendment and similar rulebooks grant us some protection: they are the actions of our neighbors, our employers, and the people offended by what we say. It is a deeply human situation, one we will always have with us. The only positive is that the necessity of a little courage before speaking is a beautiful thing, and at least a slight indication that the topic must be well worth it and that the speaker believes what he is saying.