Speech impediments.

It never quite added up: the tendency of modern liberalism to favor strict regulation of property rights, and absolute freedom of speech. Now the mask is off, and free speech is out.

J. DONALD SILVA is a Congregational pastor in New Castle, New Hampshire. He had also been a writing instructor at the University of New Hampshire for thirty years, until April 1993, when UNH suspended him, charging that he had created an "intimidating, hostile, and offensive academic environment." The evidence consisted of two offbeat remarks Silva had made in class - one comparing "focus" in the writing process to sex, the other illustrating the meaning of "simile" with a famed belly dancer's comparison of her profession to "Jell-o on a plate with a vibrator under the plate." After seven female students complained, UNH administrators suspended Silva without pay and told him to undergo psychological counseling before petitioning for reinstatement.

When Silva, unable to reach an accommodation with the school, filed a lawsuit, UNH hired one of New Hampshire's top law firms to mount a scorched-earth defense. (A year and a half later, Silva has been provisionally reinstated under court order.) Commenting on the case, NOW and academics of a similar stripe have maintained that there can be no justice for women unless we deal resolutely with characters like Don Silva. Barbara White, a women's studies professor at UNH, explained that "the First Amendment and Academic Freedom (I'll call them FAF [sic]) have traditionally protected the rights of white heterosexual men." For others, "FAF ... is just a yoke around our necks."

This unapologetic defense illustrates a sad truth: liberalism no longer stands unequivocally for free speech. Radical feminists like Catharine MacKinnon and Andrea Dworkin were the first to argue that Women's equality required the suppression of pornography and of "verbal conduct" that might give offense. Women's groups have waged an aggressive legal campaign to suppress pro-life protests - including peaceful sit-ins and civil disobedience - around abortion clinics. Other liberal constituencies have also latched onto the anti-free-speech agenda. Civil-rights organizations have lobbied successfully to expand civil-rights laws so as to prohibit not only discriminatory conduct but also offensive speech. "Hate speech" laws, stiffer penalties for crimes motivated by racial or ethnic animosity, and campus speech codes are among the best-known examples. And recently it came to public attention that federal housing bureaucrats, egged on by advocates for "the homeless," were investigating private citizens for speaking out against the placement of shelters and similar facilities for the "handicapped" in their neighborhoods.

Thinning the Ranks

Some on the Left have so far resisted the urge to suppress speech that certain groups find offensive. Traditional civil libertarians - perhaps best exemplified by columnist Nat Hentoff and ACLU President Nadine Strossen - have maintained an uncompromising stand on the First Amendment, even as many of their political allies have turned against it. But the civil-libertarian ranks have grown alarmingly thin, and they are confronted with an army of partisan agitators - on everything from racial justice to sexual equality to homosexual rights - who are far more ambitious. It is not a foregone conclusion that the civil libertarians will lose this battle. But it is not at all unlikely, and there would be a certain logic to it.

Liberalism (in the contemporary sense) has never had a fundamental problem with coercion. Since the 1930s, it has championed state power over "mere economic rights" to facilitate the collective pursuit of equality. "Personal" rights were held to be different; privacy (that is, abortion and non-marital sex) and free speech, liberalism held, must enjoy broad constitutional protection. Unlike property rights, these liberties did not seem to threaten the pursuit of equality. But this dichotomy was never totally secure. In many settings, speech is as much an instrument of power as money is. It may therefore raise the same egalitarian concerns that, from a liberal's perspective, require expansive regulation of business. And in fact, New Deal liberals advocated government regulation of speech in areas such as broadcasting, advertising, and political campaigns.

So liberalism's support for free speech was always more selective and instrumental than its absolutist rhetoric implied. Its tendency was to turn the First Amendment into a citadel for academics, advocates, and progressive social constituencies. As long as they could speak in a robust and wide-open debate, reason would triumph over prejudice, enlightened public opinion over entrenched political and economic power.

This confidence in the harmony of civil-libertarian values and egalitarian aspirations is a thing of the past. Progressive opinion has come to doubt that free speech and debate will cure an irredeemably racist, reactionary society; and once this doubt seeps in, it is not so easy to explain why the pursuit of equality should stop at the water's edge of speech. University professors, including many legal scholars, now stress that speech can be an instrument of oppression as well as of liberation; that it may cement existing "power structures"; and that powerless minorities should receive special protection from offensive speech. This view of the First Amendment is no longer marginal within the academy (consider, for example, Democracy and the Problem of Free Speech by Cass Sunstein, a widely respected legal scholar), and it has begun to make its mark on the law.

During the civil-rights era, the Supreme Court's jurisprudence reflected a faith in the congruence between social equality and free speech. The Supreme Court defined "speech" very broadly, so as to include preferred forms of leftist activism such as demonstrations, pickets, boycotts, and litigation. At the same time, it insisted that the state must not regulate speech on the basis of its content, for only government neutrality would protect social reformers from officials bent on preserving the old order. But more recent decisions undermine the traditional approach to free speech, especially the neutrality principle. The Court has opened the door to egalitarian inroads on the First Amendment.

In a 1993 case, Wisconsin v. Mitchell, the Justices examined a hate-crime law that significantly increased criminal penalties if the defendant "intentionally select[ed] the [victim] because of the race, religion, color, disability, sexual orientation, national origin, or ancestry of that person." The Court unanimously upheld the statute on the grounds that it was directed not at expression but only at "conduct unprotected by the First Amendment."

It is not at all clear, however, that this is so. The Wisconsin statute subjects defendants to increased penalties solely on the basis of their motives and beliefs. In this critical respect, it raises First Amendment concerns that would ordinarily give the Justices pause. Even in the extremely cursory Mitchell opinion, the Court acknowledged these concerns. But it responded that a discriminatory motive "plays the same role under the Wisconsin statute as it does under federal and state discrimination laws"; and these, the Court said, had always been upheld against constitutional challenge.

The Wisconsin statute indeed follows the pattern of many civil-rights laws, in that it punishes the "arbitrary selection" of crime victims. The comparison, though, is preposterous. The employer who refrains from "arbitrarily selection" of crime victims. The comparison, though, is preposterous on account of their race is praised as an equal-opportunity employer. Are we now supposed to celebrate "equal-opportunity criminals" who kill and maim indiscriminately? This obvious absurdity, if nothing else, shows that the statute was not a content-neutral regulation of conduct. In contrast to employment laws that prohibit discriminatory conduct irrespective of the employer's motives, it is aimed squarely at motives and beliefs. By likening hate crime to employment discrimination, and hate-crime laws to civil-rights laws, the Court suggested that just about any speech regulation is constitutional if it is written as, and officially declared to be, a "civil rights" law.

Civil-rights regulators, especially in higher education, drew precisely this conclusion. In trade publications such as The Chronicle of Higher Education, university lawyers cheerfully explained that campus speech codes (most of which had been scuttled by an earlier Supreme Court decision, RAV v. St. Paul) could be reinstituted if they were rewritten as regulations of "verbal conduct" and prefaced with some general anti-discrimination incantation. Federal agencies reacted with equal swiftness. In July 1993, the Equal Employment Opportunity Commission proposed new rules that defined "workplace harassment" so as to prohibit speech (or "verbal conduct") that "denigrates or shows hostility or aversion toward an individual because of his/her race, color, religion, gender, national origin, age, or disability, or that of his/her relatives, friends, or associates." Epithets, slurs, and "negative stereotyping," along with all "written or graphic material" that displays "hostility or aversion," would provide disgruntled employees with a federal cause of action.

Guidelines published by the Education Department's Office for Civil Rights (OCR) this March go even further in defining "harassment." They seem to subject anything a professor or student might write or say to official oversight. When legal commentator Stuart Taylor asked a high-ranking OCR lawyer whether a law professor's classroom discussion of a controversial subject such as affirmative action might violate the guidelines, the lawyer in effect admitted it could.

One would hope that the Supreme Court would not tolerate the enforcement of these regulations in a context such as Stuart Taylor's hypothetical or Don Silva's actual case. But one can no longer be entirely sure. This June, in Madsen v. Women's Health Center, the Justices upheld a trial court's injunction that, among other things, barred anti-abortion protestors from entrances to abortion clinics. The bar applied not only to identified individuals who had arguably violated an earlier, similar injunction but also to all individuals acting "in concert" with them. Yet demonstrations in favor of abortion were still permitted. Amazingly, the Court held that the injunction was nonetheless content neutral.

If there is some solace, it is that the Supreme Court has endorsed egalitarian restraints on heretofore protected speech with grudging pragmatism rather than enthusiasm. Madsen invalidated portions of the trial court's sweeping injunction, and Mitchell at least paid lip service to the principle that government must not regulate speech directly on the basis of its content. The opinions - both written, in an ostentatiously statesmanlike tone, by Chief Justice Rehnquist - do not embrace the egalitarian agenda; rather, they read like tactical concessions to shrill constituencies, intended to lower the temperature of overheated controversies.

False Hope

It might be tempting to think, then, that the damage has been limited. One might even be inclined to welcome the demise of First Amendment absolutism and liberalism's newfound concern with the harmful effects of certain forms of speech. We need not be so alarmed by decisions that, in the end, restrict speech only at the margin, or weep over the racist diatribes that may be lost in the wake of Mitchell. And the pro-life movement will survive Madsen.

But dismissing this as judicial pragmatism and tactical games fails to recognize that the egalitarian agenda is the most serious and thoroughgoing assault on free speech in decades. McCarthyism, which arose with the Communist threat, disappeared long before it. The egalitarians will not be tamed so easily. And unlike the Religious Right - which, far from being able to censor anybody, has to suffer the expulsion of its speech from many a public forum where it might make a difference - the egalitarian censors occupy the command posts of government, universities, and other elite institutions. They are already well positioned to suppress speech.

The egalitarian enthusiasm for regulating speech is particularly pernicious because it strikes at the heart of free speech without tempering the excesses of First Amendment absolutism. Conservative scholars such as Walter Berns and Robert Bork always wanted to protect rational discourse; they simply doubted that the same protection should be extended to "expression" such as nude dancing or Nazi marches. This perspective has struck libertarians as unduly narrow. But it does have the virtue of extending the most categorical constitutional protection to speech that is eminently worthy of protection and unquestionably at the core of the First Amendment. Egalitarianism, in contrast, would protect speech not according to its intrinsic value or its value to democratic government but according to its contribution to the quest for equality. The same ACLU that supported the state of Wisconsin in Mitchell and shamefully sat out Madsen still defends panhandling as free speech and insists that a bum with a very bad body odor and a habit of accosting female patrons must be given free access to a public library in Morristown, New Jersey.

Like the Supreme Court, the ACLU has made tactical concessions to the egalitarian agenda, while still trying to maintain its historic commitment to free speech. For example, it has supported hate-crime laws but opposes codes that would regulate speech directly. But such nice distinctions miss the point of the egalitarian agenda, which is to prohibit hateful speech not because it is worthless or not really speech at all but because it offends the sensibilities of women, racial minorities, and other preferred constituencies. This logic does not stop at regulating "hate" speech, however broadly defined. Since a scholar's argument can be far more painful than a drunkard's epithet, government on this reasoning could and perhaps should ban Charles Murray's or Thomas Sowell's books from college campuses.

At the same time, others must endure and, indeed, embrace the "speech" of oppressed minorities, no matter how raucous. The members of ACT-UP demand their right to flaunt their lifestyle on the steps of St. Patrick's Cathedral. Yet a professor who utters two slightly off-color remarks in class can be summarily suspended and declared a mental case. In short, the animating principle of egalitarianism is not moderation or civility; it is thought control and coerced sensitivity toward professional victims.

This agenda may still look like a fringe concern, and it may still seem unlikely that mainstream liberalism will jettison its long-standing commitment to free speech. But this would not be the first time liberalism has sacrificed high principle for expediency. In the late 1960s, the civil-rights movement discarded the ideal of color blindness like so much useless baggage and turned to quotas. The liberals who held onto the ideal found a home in the pages of Commentary but lost any connection to a real political constituency. The civil libertarians who still defend free speech as a matter of principle may soon find themselves in the same position. Much as quotas became part of the fabric of American politics, the suppression of speech may soon become an integral part of the welfare state's agenda.

The egalitarian assault on free speech can still be arrested. Liberal institutions are no longer as self-confident as they were when they managed to ram quotas down our throats. Liberalism has lost public support even in its original domain of economic regulation. Voters have just about had it with a government that treats their property as a collective resource to be doled out to favored constituents. They aren't quite ready to dismantle the bureaucratic state, and they are still reluctant to oppose anything that sails under the banner of equality and civil rights. But they can be persuaded that liberalism should not be permitted to renege on its promise to exempt speech from its meddling. They can be persuaded, that is, that a government which mucks around in every other corner of the marketplace must at least steer clear of the marketplace of ideas. Rallying the fairness and good sense of the voters in the fight against the leftist censors will be a big task. But it would be a grave mistake to wait for the Supreme Court to carry the main burden of that fight.