Nadine Strossen is a remarkable author and passionate civil liberties activist whose profound influence extends across the realms of literature, academia, and the pursuit of fundamental rights. As the first woman to lead the American Civil Liberties Union (ACLU) from 1991 to 2008, she played a pivotal role in advancing the organization’s mission to protect and uphold civil liberties, particularly First Amendment rights, LGBTQ+ rights, and various critical social justice causes. Strossen’s extensive contributions to legal scholarship and her thought-provoking books, including the influential “Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights,” have left an indelible mark on the discourse surrounding free speech, gender equality, and social justice, establishing her as an esteemed authority and an inspiration to activists and advocates worldwide.
With an unyielding commitment to justice and civil liberties, Nadine Strossen continues to be a formidable figure, tirelessly challenging legal conventions, advocating for the rights of marginalized communities, and underscoring the paramount importance of safeguarding individual liberties in a rapidly evolving society. Her life’s work reflects a profound dedication to advancing human rights and an unwavering belief in the transformative power of open dialogue, empathy, and the enduring struggle for a more equitable and inclusive world.
As the daughter of a Holocaust survivor and the first woman national President of the American Civil Liberties Union, how do you come to defend free speech for neo-Nazis? Do you think anti-hate-speech laws could have potentially prevented the rise of Hitler and thus, the Holocaust?
As someone who has personal reasons for opposing discrimination, and as well as principled reasons for doing so, I am convinced that the viewpoint-neutral defense of free speech for all people and all perspectives is the most effective way to counter discrimination of all sorts, including against Jews and women. Historic and current experience, in the US and worldwide, have demonstrated that censorship of hate speech, no matter how well intended, is at best ineffective and at worst counterproductive for actually countering discriminatory attitudes and promoting equal human rights. Robust free speech protection is especially important for Jews, women, and other groups that have traditionally been disempowered, because government officials naturally tend to be responsive to majoritarian pressures and preferences. Therefore, exercising free speech to persuade, petition, lobby, and litigate constitute the only dependable means for these groups to influence public policy.
As for the argument that anti-hate-speech laws could have prevented the rise of Hitler and the Holocaust, it is refuted by the historical record. During the Weimar Republic in Germany (1918-1933), which is when the Nazis rose to power, there were not only anti-hate-speech laws, but also other laws that strictly barred anti-Semitic and other hateful expression. These laws included measures against insults, group defamation, and disparagement of religion, and they specifically extended to Jews. Under these laws, such expression was subject to both criminal prosecution and civil injunctions. Moreover, the laws were strictly enforced, according to the major Jewish organization at the time. Dozens of prosecutions and civil actions were brought, leading to the conviction of Nazi leaders, the suppression of Nazi newspapers, and the confiscation of Nazi pamphlets. Hitler himself was banned from all public speaking from 1925 to 1927. The Nazis themselves, as well as historical experts, concur that these speech restrictions constituted a net benefit to the Nazis, because the trials served as propaganda platforms for them, garnering attention and sympathy they otherwise would not have received. They claimed to be free speech martyrs and that the silencing efforts substantiated Jews’ alleged undue power.
To this day, Germany has very strict anti-hate-speech laws, which are very strictly enforced, yet it has witnessed rising levels of anti-Semitism, including violence against individual Jews and synagogues. Many German critics of these laws make the following points: that discriminatory attitudes may well be reinforced, rather than reduced, by suppressing their expression; that the laws have too often been enforced against Jews and anti-hate advocates, because they often quote hateful speech in an effort to demonstrate that discriminatory attitudes persist, and to rally opposition to it and support for the disparaged individuals and groups; and that the more effective strategy is education and the inculcation of pro-human-rights and pluralistic values.
Are there any historical figures or thinkers who have particularly influenced your views on free speech?
Particularly influential to me is the classic 1859 essay “On Liberty,” authored by John Stuart Mill, with the active collaboration of his wife Harriet Taylor (some experts maintain that she should actually be given co-author credit). I re-read that essay periodically, and continue to find it of timeless and enduring importance, directly relevant to today’s challenges to free speech, and directly responsive to current arguments against free speech. Of great current significance, “On Liberty” specifically focuses on the problems that we now label “cancel culture”: not government measures that restrict speech, but rather social and peer pressures that impose various costs on speakers who utter unpopular ideas – ranging from shaming and shunning, to calls for professional and economic penalties, including being fired from one’s job. The fear of being subject to such “cancellation” leads people to engage in self-censorship, refraining from candidly discussing their views.
“On Liberty” is also of key importance because it persuasively explains why every idea should be open to discussion and debate, even – indeed, especially – those ideas that we most cherish. There are only three logical outcomes of such discussion/debate, all of which are positive: either we will be persuaded that the idea is outright wrong; or we will be persuaded that the idea is partially wrong; or we will be persuaded that the idea is correct. In the first two cases, the discussion will have brought us closer to the truth, and in the last case, we will have a deepened appreciation of the reasons why our view was correct, and hence be able more effectively to advocate it; the idea becomes renewed and reinvigorated, rather than being rotely recited as dead dogma.
In your book, you discuss various challenges to free speech. What are some of the most pressing threats to this fundamental right today?
Public opinion surveys and other evidence indicates that public understanding of and support for free speech is not so strong. This is of concern because without public support for free speech, ultimately we cannot expect elected officials – or the judges they appoint – to support it. As Judge Learned Hand famously stated in a celebrated 1944 speech, “If liberty lives in the hearts of men and women, it needs no court, no Constitution, no law to save it; if it does not live in the hearts of men and women, no court, no Constitution, no law can save it.”
Another great threat to free speech comes from powerful private sector forces, with great power over speech, which have had a strong speech-suppressive impact. One such force consists of social media platforms, which enforce their content moderation policies to deplatform or suppress certain expressions and speakers. The other major example of such a force consists of “Twittermobs” and other groups of community members who impose and advocate various negative actions toward unpopular expression, including shaming and shunning, firing employees, and suspending students. In all such cases, the result is that many speakers are silenced, thus also depriving their audience members of the right to hear their views. Another result of these speech-suppressive practices is the “chilling effect,” deterring countless other individuals from expressing certain views, or discussing certain topics, for fear that they too will be subject to social media or cancel culture penalties.
Public opinion polls have consistently shown that substantial majorities of the public, including all demographic groups, engage in substantial self-censorship for fear of “cancel culture” repercussions, therefore not expressing certain perspectives on sensitive, controversial issues, and even not discussing such issues at all. Most troublingly, survey data consistently show that this kind of self-censorship occurs on campus, where free speech should be especially vigorous. For example, a recent extensive survey by FIRE (the Foundation for Individual Rights and Expression) and College Pulse (published in September 2023), showed that more than 25% of college/university students engaged in self-censorship “often.” The upshot is that even though our legal free speech right is strong, we are not actually freely exercising and enjoying that legal right, due to social pressures. As a practical matter, freedom of speech will not be strong until we supplant the prevalent cancel culture with a free speech culture.
In your view, what is the most important lesson or message that readers should take away from your book?
The most important take-away is how essential freedom of speech is for all readers, no matter who they are, and no matter what they believe, and that modern free speech law in the US has been carefully developed to protect that freedom while also protecting all of us against speech that directly, imminently causes or threatens specific harm; readers should also understand the “Free Speech Golden Rule”: that if you want freedom for the speech you love, then you must defend freedom for the speech you loathe.
Relatedly, readers should appreciate how hard-won their current robust free speech rights are: the rights to convey and to receive information and ideas, no matter how unpopular or marginalized the ideas or speakers might be. Around the world and throughout history, countless people have sought and fought for such rights, even sacrificing their lives in the process. Even in the U.S., despite the First Amendment’s free speech guarantee that dates back to 1791, for most of our history, that guarantee was under-enforced or completely un-enforced, leading to suppression of advocates of equal rights and dissidents of all stripes. Freedom of speech has only been promoted through its exercise: as a result of people’s speaking, writing, demonstrating, protesting, lobbying, and litigating. The only way to maintain this freedom is by continuing to exercise it.
Do you have plans for future writing projects or advocacy work related to free speech?
I am the Host and Project Consultant for a new 3-part documentary film series, Free To Speak, released on public TV nationwide in October. It is a fascinating, stimulating exploration of free speech and censorship, exploring dozens of incidents from many countries, on every continent. It also describes some key historical incidents. It vividly highlights the universal, enduring nature of human beings’ striving for free speech – and of the countervailing censorial pressures – by including incidents that involve would-be speakers with multiple identities, ideologies, and types of expression. It also embodies the free speech value of critical inquiry and debate/discussion by presenting expert commentators and others with divergent perspectives on whether particular speech should be permitted or not.
The Website for the films contains links to many different clips and educational resources, including discussion questions and reading lists, so that these can be used in schools and colleges, and for community forums. In short, the film series and accompanying materials constitute an exciting, interesting vehicle for promoting the understanding and exercise of free speech. You can find out more about the film series on our website FreeToSpeakSeries.com, and here is a link to the community engagement page.
I will continue my intense speaking schedule, on campuses, schools, and in many other venues all over the US and beyond, both in-person and remotely. Among other things, I am part of the Speakers’ Bureau for both FIRE (the Foundation for Individual Rights and Expression) and the Voices for Liberty Initiative (VFLI), based at Scalia Law School, George Mason University. The VFLI promotes education and scholarship about the interrelationship between free speech, civil rights, and social progress.
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