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Free speech is about listening, not speaking

Welcome (back) to campus for the start of another academic year, a year I hope we start with open minds, open hearts, and open ears.

Like most college campuses, maybe throughout history, ours houses some memories, some recent memories, of pain and sorrow caused by closed minds, hearts, and ears.

For me, most recently, I was hurt when art created by my Summer Arts classmates was vandalized near the dining hall in July. I thought “Isn’t this entire campus a free speech zone? Haven’t we been reminded of that repeatedly of recent?”

Yes, it is.

Of course, being a free speech zone and having one’s speech always respected and protected are not the same things. The vandals weren’t justified in their vandalism, in their having silenced the expression of the artists.

Carolyn Cusick

As we begin this academic year, I want us to reflect on why this campus is a free speech zone, on why we value free speech, so that we can occupy and make use of this freedom as best we can.

When Supreme Court Justice Holmes first invoked John Stuart Mill’s and John Milton’s marketplace analogies for ideas, he was invoking their reasoning that we value speech for the sake of an informed citizenry listening to and learning from open discussion, not for the sake of the exercise of our voices or pens.

We value speech for the presentation and representation of the reasoning in support of true beliefs to ensure we hold them as true beliefs, not to repeat slogans of dogma. Speaking wouldn’t, couldn’t, matter if no one listened to it. And so speakers must be free to share their ideas so that listeners can hear all of them.

To be clear, it’s not even enough for there merely to be ears present, but the audience needs to listen and be able to comprehend the speaker’s content for the speech to matter, to be of value and use.

Worth noting is that this first legal reference to the marketplace of ideas was in a dissenting opinion, Holmes’ dissent to the Supreme Court upholding the Sedition Act of 1918.

That’s some risky speech!

In the Court’s Brandenburg decision 50 years later, a per curiam opinion with no dissenters, the standard that restricted speech presenting “a clear and present danger” was narrowed to assuredly protect “mere advocacy” and restrict only advocacy that incites, is likely to incite, or produces “imminent lawless action.”

Individual speaker’s expressions are also unprotected when they amount to serious threats or fighting words, and when, in some circumstances, they are outright false.

When and why false statements of fact are and are not protected speech matters, especially with a self-described liar as president, but could not possibly be the charge against any of the vandalized art displayed at Fresno State in July 2018.

None of those reasons above, or any of the limited reasons the court has granted to leave speech unprotected could have been invoked by the vandals. Even if they could, were the vandals in positions authorized to remove the art? To modify and destroy it? Those questions matter; I also want us to ask why the vandals wanted to ensure that the art was damaged in a way that made the art, as intended, unavailable to others.

I contend here that the vandals knew the artists successfully expressed something that could be comprehended by others. That’s what they wanted gone from our community, a message they didn’t like that they hoped few would have a chance to consider and possibly find persuasive.

They likely knew they were “abridging the freedom of speech” of another and there are laws that prevent such activities. They trusted that they wouldn’t get caught or wouldn’t suffer a great enough punishment if caught to outweigh what they took to be a social good of their own, to silence that viewpoint. We know the vandals wrongly silenced those artists, artists who risked themselves to put art into the community.

Many understand the fundamental protection of speech to be a protection for the content, that we cannot silence others whose content we disagree with, whose content we find morally or politically abhorrent.

That is right; that has been affirmed and reaffirmed many times by the Supreme Court. But again, it is not for the sake of the speakers but for the sake of the audience. The artists placed their artworks in public because they had something to say and hoped some people might hear it.

Those who try to, who too often succeed at, silencing others are denying the rest of us the opportunity to hear, to be in conversation.

To be sure, the first amendment does not provide a right to an audience, nor should it.

Nonetheless, freedom of speech is of value only when citizens are able to speak and be listened to. We need to value, to teach and practice, good listening, if we care about freedom of speech.

This does not require us to listen to everyone, though we ought to notice when we are in an echo chamber. Protecting speech might even require that there are some we don’t listen to. If a speaker’s ideas or modes of expression make listening overall harder, then they are effectively restricting access to and diminishing that marketplace of ideas.

I hope we can have tough conversations about what sorts of speech make other sorts of speech more difficult to hear. Those will take a while, probably more than the four or so short years you spend in college.

In the meantime, I hope we listen a little more carefully to a range of voices and viewpoints around us and to listen also for who is not speaking.

Carolyn M. Cusick, PhD, is an assistant professor of philosophy at Fresno State.