ANAHEIM, Calif. (CN) – When legal scholar Jonathan Turley visits a college campus, he often asks the students whether they would be willing to sell him their freedom of speech for $150,000.
“I used to say a million dollars and it was terrible,” he said. “They couldn’t really get the million dollars in their head. If you say $150,000 they say, ‘That’s four years of college.’ Usually about half of them would raise their hands and you can see why, because they really don’t see what free speech does for them, what impact it has on their lives.”
Turley kicked off the Ninth Circuit’s annual judicial conference Monday by telling a Marriott ballroom full of judges that America has a big free speech problem.
“Polls indicate that 40 percent of millennials favor speech codes and government sanctions for offensive speech. And what really worries me the most is we’re losing this coming generation,” he said. “If the next generation views free speech as such an abstraction that it’s not even worth 150 grand, we have a serious problem of whether free speech will continue in this country the way that it has.”
The George Washington University law professor and self-proclaimed free speech nut said he thinks Western democracies are “falling out of love with free speech.” While this may not be so surprising in Europe, which has criminalized forms of offensive or harassing speech since its recovery from World War II, the First Amendment shields its citizens from the specter of government prosecution.
But constitutional protections may not be enough. In his keynote address at a conference that this year centers in large part on free speech rights, Turley said he’s grown ever more concerned about free speech erosion in American society.
“We’ve seen an astronomical increase in the number of employment actions for exercising free speech on social media,” he said. “The result has been quite remarkable. Regardless of the protections we have for free speech in the First Amendment, it may prove for naught.”
In other words, you cannot be jailed for exercising your free speech rights, but you can still lose everything. And nowhere is the threat to free speech more prevalent than on college campuses, according to Turley, where vaguely worded speech codes and obscenity-laced protests intended to shut down campus speakers are becoming more common.
Penn State, for example, prohibits “taunting language.” Texas A&M’s speech code bars “any conduct or speech that does not respect personal feelings or the freedom from indignity of any type.”
Turley said that by defining speech on how it is received, “it creates a chilling factor that is perfectly glacial.”
He pointed to one incident at Northwestern, one of his alma maters, where students disrupted a sociology class because a representative of U.S. Immigration and Customs Enforcement had been invited by a professor to speak alongside a person who shared her experience of being undocumented.
“We’re not interested in having those types of conversations that would be like, ‘Oh let’s listen to their side of it’ because that’s making them passive rule-followers rather than active proponents of violence,” sophomore and protest organizer April Navarro told the student newspaper.
This, Turley said, is a perfect example of the generational divide over free speech.
“We’re seeing the mantra appear more and more that the First Amendment doesn’t protect hateful speech, when in fact that misses the point. You don’t need a First Amendment to protect popular speech. You need it protect speech that we despise, that we find hateful or wrong,” Turley said. “We’re seeing a significant rise of students who view free speech in a less robust way than the generations that came before. They don’t see what free speech does for them, and that’s really what worries me the most.”
But what can be done? U.S. Magistrate Judge James Donohue posited that millennials may have lost faith in the system. He pointed to Citizens United v. FCC, a U.S. Supreme Court decision that essentially granted corporations the same free speech rights as people, as a possible cause of generational disillusionment.
“Millennials are perhaps valuing the rights of free speech less because of the sense that they have little control in light of decisions such as Citizens United. We grew up believing there was a marketplace of ideas and that the answer to bad speech was more speech,” Donohue, of the Western District of Washington, said.
“But there’s also this sense a lot of people have that the system is rigged. Congress enacted restrictions on campaign financing to try to even the playing field, and the court dismissed all of the concerns by Congress. And it seems all those concerns are coming true. So there’s a lot of disillusion.”
While Turley said he agreed with the Citizens United decision in terms of free speech, he agreed with Donohue’s point on disillusionment and corporate involvement in politics.
“I do think part of the problem we’re having with millennials is that there is this sense that they are no longer in control of their determination,” he said. “But there is something much more fundamental with this generation. I think we win them over by convincing them that they can still have a voice.”