These remarks were delivered as the Stanley Feingold Lecture on American Politics at the City College of New York on November 8, 2023. They have been lightly edited for context.11. The author thanks Shanelle Matthews, Distinguished Lecturer at the Colin Powell School of the City College of New York, and Emerson Sykes, Senior Staff Attorney with the ACLU’s Speech, Privacy and Technology Project, who delivered responses to this lecture. Several of their points have been incorporated into this revised version.

Thank you, Dean Rich, and thanks to the accomplished and passionate cohort of students of the late Stanley Feingold for the honor of inviting me to give this lecture. I’ve read a bit about Professor Feingold, along with a number of his compiled writings, and it seemed a bit karmic to me when I learned that one of his rejected dissertation topics was “How Free Can Free Speech Be?” That could well be an alternative title for my remarks this afternoon, though I hasten to say that neither he or you bear any responsibility for the substance of the views I’ll set forth here.

I did not go to City College—50 years ago I was a sophomore at Columbia, 20 blocks to the south—but a big influence on me was another City College professor of Stanley Feingold’s vintage, who perhaps also taught some of you who’ve returned to campus today. His name was Bernard Bellush, a historian I met when we served together on the American Civil Liberties Union’s Academic Freedom Committee. Bernie and his wife Jewel, a political science professor at Hunter, took this then-long-haired, bellbottom-wearing Catholic school student from a small New England town under their wing, enriched my expressive skills with Yiddishisms, schooled me in the City College alcove debates between Schactmanites and Trotskyites, and honed my argumentative skills over many dinner parties at their Great Neck home, where guests ranging from federal judges to labor union leaders delved into Bernie’s table topics, which were in most cases some variant of “whither Israel” and “whither the Democrats.” One of the many reasons I am proud to be affiliated with this magnificent institution, which for 175 years has been a beacon for working class immigrant students who are the first in their families to go on to higher education, is that City College was Bernie’s intellectual home for many decades. He believed in it strongly, and I do. Though I hasten to say that, as with Professor Feingold, Bernie, who died in 2011, also bears no responsibility for my remarks today.

I guess that leaves me as the one who bears responsibility for my remarks, and on more than one occasion in the last few weeks, as I was trying to meet the challenge I had set for myself with this topic, I wondered what had possessed me to take it on. The country is now embroiled in intense debates over Israel and Gaza, and these have provided yet another living laboratory of free speech flashpoints, from the cancellation of literary events featuring Palestinian writers to donors pulling their support from Ivy League colleges they deem insufficiently supportive of Israel. The extreme volatility and heat of this moment is straining solidarities and testing many institutions—particularly those like universities and publishing houses for whom freedom of expression is core to their mission. As is often the case in times of conflict and stress, I fear it is causing some, blinded in their outrage, to forget core free speech principles.

I spent a good deal of the first half of my career, which began in the mid-1970s even before I graduated from college, crusading for free speech. I’ve spent much of the second half working to support those on the front lines for economic and social justice. Another way of putting it is that I saw the world primarily through a rights lens when I worked for such groups as the ACLU, Human Rights Watch, and PEN America, and through a power lens when I worked for the Open Society Foundations, Atlantic Philanthropies, and the Democracy Alliance. In all three of the latter institutions, I had the job of redistributing rich people’s money to leaders and groups fighting to change a status quo that had done its best to oppress and marginalize them.

I got tired of the free speech wars in which I had been a combatant by the mid-1990s, when I edited a book—in retrospect, a kind of swan song for my free speech advocacy—called Free Speech and Equality: Do We Really Have to Choose? (Spoiler alert: the answer is not really.) Indeed, by then, I was not only a bit bored by these debates and eager to work more directly on social challenges like mass incarceration, equitable schooling, and immigration, but I saw the main free speech questions that had preoccupied me as essentially settled. I have not had much to write or say about free speech—not that the world is clamoring for it—in the years since.

But I want to return to the question of free speech this afternoon. Like many, I have worried in the last few years that free speech is in danger from a variety of actors, from state houses to powerful corporations to activists across the political spectrum. In short, I’ve worried that I was wrong in my judgment that free speech was on fairly safe ground. I want to examine some of the many apparent threats to it as dispassionately as I can.

If all this sounds a little self-centered—looking at a major public question through a form of autobiography—I guess it is. I want to spend a little time first on my tour of duty in the free speech wars, and to make it more bearable, I’m going to try to transcend my 19th century attachment to words and also give you a few things to look at while I’m talking.

How did I get to be a free speech person? I seem to have been born with a visceral repulsion at attempts to control what I or anyone else had to say. I’d like to think that my commitment to free speech was grounded in something loftier, like its essential role in undergirding democracy and self-government, but that came later. Before I understood what they meant, my parents and other relatives were calling me a “Philadelphia lawyer” because I had a tendency to question everything, and the song I chose to represent me in the yearbook the Sisters of Mercy foolishly let me edit for my 8th grade graduating class at Immaculate Conception School was “It Ain’t Necessarily So (Sister).” [Figure 1] A few years later, at 15, without telling my parents I was doing it, I sent a letter to the editor of our small-town Rhode Island newspaper in defense of the right of our local theater to show X-rated movies, [Figure 2] and when it was published, my mortified father could only say, “Thank God your grandfather just died, for this would have killed him.”

In time I turned these contrarian and libertarian impulses into a job. In my freshman year at Columbia I got involved with the ACLU, and in my early 20s I went to work as associate director of its largest state branch, in New York, where I took on all manner of free speech cases—not as a lawyer, which I never became, but as a writer and advocate. I criticized Mayor Koch’s administration for abusing its control over the city radio station to read on the airwaves the names of sex workers’ customers—what they called “The John Hour.” [Figure 3] I defended the rights of Nazi marchers in Skokie, Illinois, in a debate at the Communist Party headquarters on West 23rd Street, under a picture of Lenin. I debated the head of the New York State Moral Majority one night at the Edmund Seergy Republican Club in Bay Ridge, Brooklyn, [Figure 4] where I got off on the wrong foot with the angry white men in the packed hall—MAGA country 35 years before Trump’s candidacy—by declining to take part in the Pledge of Allegiance.

A few years later, by now the executive director of the Texas ACLU, I debated another Moral Majority minister at the Austin convention of the Southwest Sunbathers Association, before an audience of nude nudists, a nude gavel-wielding moderator seated between us. Sorry, but no visuals for that one. I chaired the ACLU’s Free Speech and Association Committee and led the national board through a contentious policy process about whether the enhancement of criminal penalties for hate-motivated offenses violated the First Amendment [Figure 5]—I argued that they did not, and ultimately persuaded the board. When I ran the Freedom-to-Write Program at PEN America, I helped lead the group’s defense of Salman Rushdie’s The Satanic Verses when he went into hiding after a fatwa was pronounced, helping to organize a public reading of the book with prominent authors from Norman Mailer to Susan Sontag, even though the New York Police Department warned us to expect possible casualties. At Human Rights Watch, where I led its freedom of expression and U.S. work, among other things, the organization and I grappled with how to approach the question of hate speech in an international context like the genocide in Rwanda.

So I’ve been around the free speech track. But since 1996, I’ve ventured back just twice, both times in reviews for The Nation of books on free speech by two of its most iconic advocates of the last 50 years—Nat Hentoff, the late Village Voice columnist, and Floyd Abrams, the leading First Amendment lawyer. In most cases, I had little quarrel with the policy substance of their free speech absolutism, but as I wrote about Hentoff, I found it troubling that his “juices really start[ed] to flow only when the ‘censors’ in question are acting out of concern about racism, sexism or homophobia.”

And that critique brings me to the heart of what I want to talk about today. What we tend in America to call free speech disputes are with very few exceptions proxies for the questions that have roiled this country for 247 years, or if you prefer to date from 1619, 404 years: Who is a person? Whose voice can be heard? Whose stories are told? Questions of identity and power.

I teach an undergraduate course on human rights at City College. In broad terms, the theme of the course is that virtually all cultures and traditions can be cited both in support of human rights and as an obstacle to them, and that the story of human rights is in essence one of great lofty principles—the U.S. Constitution, for instance—that were initially applied to a small minority of elites but that have been made more inclusive over the centuries by the struggles waged by racial and ethnic minorities, women, the poor, LGBTQ people, and others. Freedom of speech, thought, and assembly, even when brutally suppressed, as they has been at many points in a history we work hard to forget, has been an essential tool in those efforts—a way of exerting leverage against dominant forces who try to discriminate, silence, and oppress.

Yet today it often seems not only that this history is fading from memory, but that many in the rising generation, in the words of Princeton Professor Wendy Brown, are understandably “outraged about a burning planet and grotesque inequality and murderous racial violence and gendered abuses of power … accompanied by disgust with the systems and rules of engagement that have brought us here.” Many appear to see free speech, and the American fetish about protecting it, as just one more failed institution. I don’t believe it is, but I do believe it is in need of repair and renewal.

I am aware that today I am dropping in for an hour or so to debates and controversies that used to be my bread and butter but that are today led and shaped by others on the frontlines, particularly in two of my former institutional homes: the ACLU, which among its many free speech cases is in court trying to strike down Florida’s Stop W.O.K.E. Act, and PEN America, which has been a critical source of policy development and advocacy on campus speech issues, disinformation, book bans, prison censorship, and a host of free expression issues. So I want to have some humility about this. I am not here to solve it all for us, to wrap these challenging matters up with a neat bow. What I do want to do is lay out six observations about our free speech wars, drawing a bit on history and my own experience.

1. Most free speech debates are in fact proxies for debates about identity and power.

The vague and imprecise but menacing language of Florida’s Stop W.O.K.E. Act and “Don’t Say Gay” laws make teachers and librarians worry about criminal liability for lessons on Reconstruction or Stonewall. J.K. Rowling loses fans and readers over her perceived transphobia. Critical Race Theory, queer studies, gender studies—all are on the chopping block, at least in red states. In 2021, the Oklahoma Legislature passed a bill, not unlike its Florida counterpart, prohibiting teachers in public school from suggesting that “any individual should feel discomfort, guilt, anguish or any other form of psychological distress” on account of their race or sex. According to The New York Times, “the vagueness of the law has caused teachers to censor themselves, for fear of losing their licenses or their school’s accreditation.” One high school teacher in Dewey, Oklahoma, stopped assigning Killers of the Flower Moon, the nonfiction book behind the recent film, for fear of running afoul of the law. Another teacher worried if she would violate it by referring to the settlers who murdered Osage as white.

I’ll return to these consequences a little later, but this is nothing new. In my lifetime virtually every free speech controversy has centered on race and other markers of identity. This includes many that, on their face, may not seem to be about equity or that in any case have not been characterized that way in constitutional history, like New York Times Co. v. Sullivan, the landmark 1964 case setting a high bar for libel suits by public officials, which was generated by an ad in The New York Times criticizing the Montgomery, Alabama, police for their treatment of civil rights protesters.

An important free speech case of the 1980s, which we brought at the New York Civil Liberties Union, sued the Island Trees, Long Island, school board over its removal of books they called “un-American, anti-Christian and just plain filthy.” It was a precedent against book-banning that I hope to see cited in the cases now making their way through the courts challenging the new laws in Florida and other states. But it’s striking that seven of the nine books the district removed were by Black and Brown authors like Richard Wright, Alice Childress, Langston Hughes, and Piri Thomas. I have always felt that Island Trees was in effect an exclusionary zoning case—the original developer of Levittown, from which many Island Trees students were drawn, had refused to sell houses to Black buyers, and here a white suburban school district not many years later continued to fence out images and voices of urban people of color.

In the 1990s, when I was at PEN, we had a wave of arts censorship, with the Bush Administration in D.C. and the Giuliani administration in New York City seeking to pull funding from projects they found offensive. But as Bill Rubenstein, then the director of the ACLU’s Lesbian and Gay Rights Project, and I wrote at the time, almost every one of these censorship incidents involved homophobia. Congress barred the National Endowment for the Arts from funding “homoerotic” works and required grant recipients to submit an oath to that effect. Worth noting is that the dreaded homoerotic art images, as in the targeted works of Robert Mapplethorpe and Marlon Riggs, often involved interracial couples. Around that time Black hip-hop music, which my City College colleague Shanelle Matthews notes “emerged in response to society’s rejection of oppressed people of African descent,” was often a target of national and local authorities, as when the FBI warned N.W.A.’s distributor, Priority Records, that Straight Outta Compton encouraged violence against police.

The fight for birth control and abortion rights has also been inextricable, particularly in the early 20th century, from the fight for free speech—Planned Parenthood founder Margaret Sanger was indicted for mailing birth control pamphlets, in an echo of the prosecution of abolitionist literature in the South in the previous century. And many of the current wave of anti-abortion laws passed since the Supreme Court’s Dobbs decision prohibit not only most abortions in a given state, but also many forms of talking about abortion, particularly counseling patients about their options in other states.

There’s a pernicious pattern here. In the 1860s and 1870s, Reconstruction began to right the systemic oppression of Black people, and the violent backlash that followed ushered in over 100 years of Jim Crow racism enshrined in statute books. The modest gains around policing reform or in removing some of the ubiquitous monuments to Confederate traitors that have taken place in the wake of the racial reckoning of the last few years have spawned a full-scale assault on diversity, equity, and inclusion that has at its root an assault on talking about and reading about race, as in the bans on teaching critical race theory. The 50-year backlash against Roe v. Wade, under a now securely right-wing Supreme Court, finally hit its target last year. And while the backlash against the recent gains for LGBTQ people has not yet rolled back marriage equality, it is notching its early victories supposedly protecting children from drag queen story hours and purging books with gay characters from library shelves. If your project is to keep people down, you work hard to control what is taught about them, what is said about them, and what they can say on their own behalf. In the fight for equality and power, words are a critical front.

2. Centuries of exclusion from public discourse constitute a severe form of censorship.

“Cancel culture” is a widely used term, like “identity politics,” and not one of my favorites, because again, it is usually weaponized against those who, perhaps at times misguidedly or overzealously, are trying to right what they see as a power imbalance. In common usage, it means when someone in public life—a comic, a writer, or a politician, for instance—says something found unacceptable and is ostracized, boycotted, or shunned. To judge from most coverage of cancel culture, those practicing it are usually on the left, though they can certainly be found elsewhere, to judge by those who in the past few weeks have been “doxxing” pro-Palestinian student protesters and trying to disrupt their employment opportunities or worse.

A good deal of cancelling is aimed at behavior like sexual harassment, not speech, and although at times it is possible to question methods and remedies, for the most part it seems appropriate—indeed, a small price to pay for abusive conduct. When it is aimed at speech—professors who use racially charged terms in the classroom, or writers who are thought to have written insensitively, or indeed at all, about a marginalized culture not their own—it often provokes a fierce reaction from those who see censorship at work. And at times, no doubt, particularly in the age of social media, where the stroke of a key goes instantaneously far and wide, a mob mentality takes over. My friend Sarah Jones, the writer and performer, has been trying to reframe the cancel culture debate, and this is long overdue. Sarah came up against a form of cancel culture when plans for a film version of her stage work, Sell Buy Date, was announced, and without having seen it, scores of activists who believed it might deal unfairly with sex workers, jumped all over it on social media, causing some of her producers to back out and impairing the audience for the film. This was particularly distressing for Sarah, a Black female artist who channels a lot of diverse voices in her work.

Sarah has drawn on this experience in a recent TED talk. What she has to say provides a fresh and important perspective:

Cancel culture actually hasn’t been sudden, and it is certainly not new. If the definition of being cancelled is being silenced, excluded, disempowered, and disinvited from the larger conversation, then for many of us, cancel culture has defined our lives for most of history … some of our experiences down through history have amounted to a kind of pre-cancellation. 

When overrepresentation has been the factory default setting, diversity can seem like exclusion to those who have benefited from the status quo. But not only do we need to reframe the debate over cancel culture as Sarah Jones suggests, we need to recognize that censorship in America has taken place not only when a book is removed from the shelves, or a speaker is shouted down, but when voices have been denied a presence and a platform in the first place. I grew up in a country where my local library had almost no books by Black people or about them; where virtually every face I saw on television or at the movies, or in the comic books I was addicted to was white, where nearly every visible face of power—in education, in politics, in business—was white and male. I’m not telling you anything you don’t know, and you also know that while this picture has changed considerably, we still have very far to go. But I’m encouraging you to think a bit differently about this familiar history, and its long tail. I’d like you to think of it as a profound and pervasive form of censorship. History did not start yesterday.

3. By far the most concerning censorship issues in today’s America involve the use of state power to suppress expression.

I’ve lived my public life, broadly speaking, on the American left. I’ve lodged plenty of criticisms at my ideological cohort, and I’m certainly aware that some on the left have some disturbingly censorious impulses.

And yet, can anyone have any doubt that by far the most serious assaults on freedom of speech in the United States today come not from the faculty lounge or the activist picket line, but from those who hold and aggressively wield state power in large swaths of the country whose borders largely and not so accidentally track those of the Confederacy? A slowly growing number of states have blue trifectas where all significant state power is held by the same party, not unlike Texas, Florida, and many states of the south and west. I see those states protecting abortion rights and trans kids, expanding the rights of labor, making it easier to register and vote. I don’t see them passing laws to curb the speech of their adversaries.

When the state moves to restrict expression, as Florida and others have, the fear is more tangible than that which can come from social or commercial ostracization, because it is backed by policing power. I chair the board of The New Press, a nonprofit publishing house that released The New Jim Crow, an anthology of writings on critical race theory, and numerous other books on race, education, and criminal justice. In the wake of the adoption of these state laws, we joined with the Zinn Education Project to give free New Press books to K-12 teachers affected by the bans. A number of them wrote to us. Here are just a few of their sobering responses:

Alabama: “We can no longer teach black history prior to 1970.”

Arizona: “We have a hotline for anyone to denounce any history that is not the mainstream history.”

Florida: “I have cleared my bookshelf for fear of felony charges.”

Idaho: “Our Holocaust education is being curtailed, and anything that can be interpreted as "social justice" is not allowed.”

New Hampshire: “The Commissioner of Education wants the power to subpoena teachers for breaking the divisive concepts law. Some right-wing groups in the state put on "bounties" for teachers who break the law.”

Oklahoma: “I have been told to STOP teaching Toni Morrison's Recitatif just this year by the principal. Also asked to take down small poster which 'dealt with race.'”

Texas: “We are legally not supposed to discuss slavery at all and I teach the Civil War. It’s mind-boggling.”

And let’s also remember that even when law enforcement is not involved, and even when, as they most often do, pronouncements fall short of any actionable incitement standard, the statements of public officials can have discriminatory and even violent consequences. I should not have been surprised, but I was nevertheless ashamed as an American, when I asked my City College students last semester for examples of hate speech and half of them cited the last president of the United States. I find it curious that we spend so much time fretting about cancel culture when in the last few years we’ve seen an alarming normalization of cruelty, with the boundaries of civil discourse steadily eroding and coarsening with slurs from the highest centers of power about “Mexican rapists” and “shithole countries,” when racist tropes like the “great replacement theory” are cited daily in the halls of Congress and on cable television.

4. Private actions can suppress speech. But maybe some speech deserves to be chilled.

In trying to focus our attention and outrage on the alarming rise in state censorship, I don’t want to be dismissive of the way in which private actors can have an effect on freedom of expression. Any woman in the public sphere who is online knows what a stream of violent vitriol awaits her. Doxxing actions like posting the names and addresses of pro-Palestinian student activists invites violent retaliation, and I was heartened to read that some Jewish Columbia students—themselves under increasing risk in the current atmosphere of sharply rising anti-Semitism and Islamophobia—banded together to block the names on the doxxing truck. Tearing down posters or shouting down speakers is wrong. Leave them up, or let them speak, and counter it with posters or speeches of your own—or at least understand your actions as civil disobedience.

I don’t want the events in Israel and Gaza, which erupted while I was in the middle of writing this talk, to overwhelm it, as I gave myself this task in the first place to try to take a broader view. But it should not be necessary to say that a Jewish student in Cleveland is not the Israeli government, that a six-year old Palestinian boy in Illinois is not a Hamas bomber, that opposition to Israeli policies is not anti-Semitism, and that support for Palestinian aspirations is not support for terrorism.

There are tougher cases, of course. There are some voices, including, regrettably, some in the academy, who justify the coldblooded mass murders of Jews on October 7, 2023. Some supporters of Israel want to reduce Gaza to rubble and view every human being there as a combatant. These views deserve vigorous moral condemnation, full stop. But it is not and should not be illegal to hold noxious views, even views that dehumanize others. The bar for restricting such speech should be very high, and involve direct and immediate incitement to violence.

Now what do I mean when I say that some speech deserves to be chilled?

To some degree, every individual act of expression involves self-censorship. We don’t say or write everything that comes into our heads, sometimes because we don’t want to hurt or offend people, sometimes because we don’t want to make fools of ourselves. Most of these decisions are no great loss for freedom of speech. Often, they are victories for common sense.

An expression we hear a lot in free speech debates is that whatever the degree of legal protection certain forms of controversial speech may enjoy—and by and large in America, judges and courts from the left to the right have over the last century been broadly protective of it—even unsuccessful efforts to suppress can have a deleterious “chilling effect.” I think this is undoubtedly true. And yet I am not so sure that is always a bad thing. A lot of our culture war debates today, for instance, are waged over the rights of trans people. Norms are changing rapidly, and many people—including many people who believe themselves to be inclusive and embracing of rights—are having a hard time keeping up with them. They get pronouns wrong, and feel victimized when younger people seem to have no shred of patience for their clumsiness, questioning, or slowness. I’ve been on the receiving end of this myself at times, and of course it is no fun. Why, you lament, aren’t people—usually younger people, sometimes your own children—less judgmental, more gracious and tolerant, more willing to discuss and debate?

But of course these debates have many antecedents, and too often our memories are short. Who today defends the racist stereotypes of Aunt Jemima, Black Sambo, or Amos and Andy—all of them part of the popular culture in which I grew up? Who insists on calling women Mrs. when they prefer Ms.? Who celebrates Columbus or buys their children an Indian headdress? Well, some still do. But I doubt they include the people listening to this talk, or the majority of Americans, or any significant institution of the mainstream media or culture. In my lifetime language and stereotypes most of us took for granted have been consigned to the dustbin, and is anyone lamenting that? They’re there because of concerted anti-defamation campaigns, and at the time the initial response even of many people who thought of themselves as progressive was to push back, to think of those fighting for language changes or against negative images as oversensitive or “politically correct.”

Not to put too fine a point on it, the campaigns they successfully led chilled speech and expression. Terms and images in widespread usage became unacceptable, and society is the better for it. I have every confidence that is what is happening with norms around gender identity today, and excesses and overreactions will in time sort themselves out. Change is messy and uncomfortable.

5. These are not primarily legal issues, but moral ones. But social movements depend on robust legal protections for freedom of speech.

I’ve referred a few times here to First Amendment case law, but am not primarily engaged in a legal or constitutional exercise. The settled law here is pretty clear, and I have no quarrel with it. Writing in The New York Times, David French said it pretty well when he wrote that the right to speak includes a right to offensive speech, and that the right to free speech does not include the right to harass or silence others.

French also referred to a landmark First Amendment case that I have often cited in trying to make the point about the legal indivisibility of free speech: Terminiello v. Chicago, a 1949 case involving a loathsome racist Catholic priest—a suspended one, my co-religionists will be relieved to know—who was charged with breach of the peace because of the unruly behavior of the crowd he was addressing, many of whom opposed him. In overturning his conviction, Justice William O. Douglas wrote for the Court that “a function of free speech under our system of government is to invite dispute.”

Twenty years later, in 1969, Dick Gregory led a group of marchers to the home of Chicago Mayor Richard Daley to protest segregation. The marchers were peaceful, but hostile residents came out in large numbers and sprayed the demonstrators with water, rocks, and eggs. The police arrested the demonstrators, and the courts convicted them, but the U.S. Supreme Court overturned the sentences—relying on the Terminiello ruling. The precedent set by a racist priest provided protection for civil rights marchers.

The issues we have been discussing today take up a lot of oxygen but are not even the most important ones having to do with freedom of speech in contemporary America.

As I near a close, I want to acknowledge that some who are listening may be disappointed that this talk was not more comprehensive. I haven’t dealt with a range of relevant issues, from the trivial question of the sanitization of classic children’s books by Roald Dahl or Dr. Seuss to the more knotty question of position-taking by universities and other institutions and the expectations and critiques that have grown up around it in recent years. I haven’t grappled with what newer technologies like artificial intelligence—which we are beginning to see used, according to the Brennan Center, to identify books and passages to ban—mean for a free speech regimen that has largely withstood, over time, the disruption of earlier new technologies like the telegraph, radio, television, and the internet. I haven’t talked about how speech has suffered from the invocation by governments of national security, from the Alien and Sedition Act to the imprisonment and deportation of war critics during the First World War so chillingly chronicled by Adam Hochschild in his recent book American Midnight, to the restrictions on the press and assaults on whistleblowers during the wars of the last several decades. Nor have I discussed the equation of money with speech under an increasingly conservative Supreme Court and the way it has distorted our political processes. Each of these topics could fit under the title I gave my talk today, as each involves questions of power and speech, but each could easily merit a talk by itself. I chose to focus instead on what I’ve found most personally difficult and uncomfortable and—let’s be real—what generates the most heat and noise in our moment. I’ve tried to do some sorting out of what is real and what is noise. I hope we do not look back years from now on the intensity of our current debates and wonder what we were doing worrying and arguing about the rights and wrongs of comedy routines, tweets, and campus protests when we lost what was left of our political discourse to Big Tech corporations or the national security state.

And undoubtedly I have not been as categorical as some of you may find warranted in my condemnation of what many of you here, and many outside this room, may see as free speech incursions carried out in the name of equity, inclusion, and empowerment. I confess that as I have aged, as I have read and listened, and as like many in my posture of relative privilege, I’ve reconsidered and rethought some of my cherished assumptions, I find that the zone of what I have deemed as certainties—not just about free speech, but about many other things—shrinks steadily. As a matter of law, there are no wrong ideas, no theories or ideologies that forfeit constitutional protection. But as a matter of morality, there is a profound difference between policies and practices that expand our understanding and embrace of who is fully human—who commands dignity, respect, power, and voice—and those that constrict it, working to suppress, marginalize, and repeal. In recent years, I have come to see the free speech questions of my early career through the power lens of my later career. It helps me when thinking about what to make of the Colorado baker who refuses the business of a lesbian couple or the Florida public school teacher who wants to give a lesson on the 1921 Tulsa race massacres.

I’ve sought here to take up the challenge of my friend the Harvard University scholar Henry Louis Gates Jr., who’s written that the strongest argument for regulating speech is the unreflective nature of most of the arguments on the other side—the tendency of those “who invoke the First Amendment mantra … to fall into a trance, oblivious to further argument and evidence.”

Whether in my remarks here today I have broken any trances, or confirmed or unsettled your own certainties I do not know. But in any case, I thank you for the honor you have paid me by listening.