Over the course of this month there are those who have been scheduled to make appearances on our campus who are not coming here for dialogue. These speakers are not using their right to speak merely to communicate, they are using speech carefully crafted to harm, to demonize, to disparage, to create a sense of fear about anyone they deem Other. Their speech is intended to provoke and to divide. Many of these speakers, who are coming under the guise of freedom of expression, publicly target specific groups and people from those groups, including transgender people, Muslims, women, people of color, people with disabilities, and their list goes on. They are exploiting democratic principles meant to protect and expand our communities. In doing so, they are attempting to co-opt and pervert the concept of free speech itself.
In thinking about free speech, we must first take a look at ourselves, understand who we are, who we should strive to be, and remember the core values we share as Americans, including justice, equality, and liberty. While there will always be disagreements, what we cannot do is deny the worth of any individual or our common, shared humanity.
A lot of the discourse around free speech has been predicated on the notion that speech doesn’t “really” harm. But freedom of expression, as well as liberty and equality, does not allow for total impunity when it comes to speech. There are reasons we have laws against libel and sexual harassment, both of which can take the form of speech.
We must not let the narrative about free speech itself be narrowly defined by a set of extremist viewpoints. There is an ongoing subtext in the conversation around speech today that if certain people are not welcomed in our public squares or in our public universities or in our communities, that they have been silenced. Yet these are people whose viewpoints and voices have been continuously validated, centered, and reinforced in our media and from our highest seats of power—who are supported by and aligned with a president who has equated the beliefs of white supremacists and neo-Nazis with those who protect justice and equality. The “freedom" to practice the discourse of Othering has rarely been less silent.
This is not about a simple disagreement between two equal but differing viewpoints. When we have right-wing, ethno-nationalist groups publicly calling for the expulsion of Jews, Blacks, and other groups, we must respond. There are people coming into our communities saying “You are not human. You do not belong.” We have people in power saying to members of our society, “Get out of our country. You do not belong.” Those of us who believe in equality will find it necessary to resist all attempts to institutionalize Othering, not only in speech but also into policy and law.
This doesn’t mean we should ban speech or silence those with views we may not like or agree with. We should not. But at the same time we must also recognize the need to protect those who are concerned for equality, free from harassment and intimidation. The concept of free speech is a critical topic, and the Haas Institute is committed to engaging in public dialogue about what the First Amendment covers and the evolution of the law on what is considered speech. Who would have thought that corporations giving money to political candidates was “protected speech” 10 years ago?
We are committed to elevating research and dialogue on how speech can injure. What is sometimes called by the name of speech could actually be called injurious speech acts. There is often an effort to ignore these harms by calling such speech offensive or hateful, but not injurious. Several of our faculty are studying the effects of stress on life outcomes, how the effects of institutionalized racism plays a crucial role in the lifespan of people of color, how trauma and isolation are directly connected to higher suicide rates, earlier deaths, addiction, and illness. All of these issues are deeply intertwined with speech and what is normalized in public discourse and practice—they do not exist on in a place outside of where free speech sits, protected.
The more we recognize that certain kinds of speech can not only offend but can cause mental and physical harm, and that the harm can be lasting, the more we will be able to properly protect the rights of all—not just of people to speak, but also of their very existence and right to survive and thrive. The exact boundaries for doing this may be difficult to determine, but we must not let that be an excuse to not engage. Nor should we put aside our core values as merely abstractions and only discuss free speech from the perspective of the strictest letter of the law as currently defined. The law evolves and is dynamic. What would we have said to the students that challenged the segregated lunch counter, or to the freedom riders—that segregation laws prohibited their actions? These laws proved to be not only legally wrong, but morally wrong as well.
Yet as we uphold and respect the law that protects freedom of expression, we also call for the resources of our institutions and the state to be directed towards the protection of those standing against organized hate and who advocate for justice for our most vulnerable communities. Those who participate in nonviolent demonstrations, who practice boycotts, who engage in civil dialogue, who create sanctuary cities, who are using their positions as faith leaders, engaged scholars, and community organizers to advance equality and justice—these are people helping America be its best self, who are claiming a more inclusive “we” in “we the people.”
Because we are moral beings, our actions cannot stand solely on legal footing. We must operate, teach, and practice from a set of shared beliefs that honor our commitment to a society built on belonging. The path forward will not always be straight, and there will be disagreement about the boundaries of our pluralism, but that must not stop us from working to secure an America that is moving towards, not slipping away from, a more inclusive society.
john a. powell is the Director of the Haas Institute for a Fair and Inclusive Society and Professor of Law, African American, and Ethnic Studies at UC Berkeley