Taking the temperature of our democracy is always a tricky business. The surest way to see how we're doing is to see how willing we are to tolerate obnoxious speech.
The latest poster child for the cause of unpopular free speech is a Colorado academic named Ward Churchill. A left-wing extremist and Native American activist, Churchill earned his proverbial 15 minutes of fame by writing shortly after the Sept. 11 terror attacks that the thousands of murder victims who were slain by Islamic radicals deserved to die. For him, they were corporate tools who were "little Eichmanns" because they were complicit in sanctions against Saddam Hussein's Iraq.
Later, he added that another possible justification for the Al Qaeda attack was the plight of the Palestinians.
Few outside of Colorado University, where he teaches, had ever heard of him; even fewer had read the essay in which he made this astonishing and utterly vile statement.
But following his being tapped as a guest speaker at Hamilton College, he was outed as a wacko on Bill O'Reilly's Fox News cable show, and an ocean of protest swept over the school's upstate New York campus.
At first, the school booked a larger hall for Churchill's speech. Then, realizing that giving a lunatic a platform was hurting fundraising and the ability to recruit students, they canceled him. The attention focused on Churchill's loony radicalism also forced him to resign as head of his department.
All of which makes Churchill a victim in the eyes of some. They blame O'Reilly for serving as the ringleader of a mob that sought to extinguish free speech.
THE NEW MCCARTHYISM?
Others denounce those who are offended by the abusive language used by radio "shock jocks" like Howard Stern. The right of the federal government to fine stations that broadcast smut is more than debatable. But protests that seek to shame stations into upholding decency standards are not attacks on free speech; they are merely attempts to hold the sponsors of programming accountable for their product.
The same allegation of "McCarthyism" has been applied to JWR columnist Daniel Pipes, the think-tank head who created a Web site devoted to monitoring anti-Israel extremism on American campuses. When Pipes' Middle East Forum produced its Campus-watch.com, those involved in Middle East Studies, where such extremism flourishes, roundly denounced the site as an assault on free speech and academic freedom.
What some of us seem to forget is that there is a difference between squelching the right of others to speak out and merely pointing out what it is that they are saying. Holding institutions or individuals accountable for the things said in their name is not an attempt at repression. It's democracy.
That doesn't excuse the threats and abuse that were subsequently thrown at Churchill or Hamilton College by outraged viewers, who quickly sank in their reactions to the radical's level.
Maybe Hamilton shouldn't have invited him. But had the school chosen to go through with the event, no one would have had the right to try to push him off the stage.
Ironically, that is not a right that's always respected by Pipes' critics. When that redoubtable scholar speaks on certain campuses, his appearance has been greeted with attempts to suppress his right to speak because some Arab-Americans and their sympathizers think anyone who supports Israel, or who properly identifies radical Islam as a threat, shouldn't be allowed to talk. And that is part of the problem that many of us have with free speech. As civil libertarian Nat Hentoff has put it, most of us are for "free speech for me, but not for thee."
Even more troubling is when groups that are themselves often marginalized resort to the same sort of heavy-handed tactics that were once used against them.
WHERE'S THE ACLU?
Here in Philadelphia last fall, a gay-pride street fair called the "Outfest" was the scene of an instance where the dividing line between permissible protest and criminal behavior may have been crossed.
At the Outfest, a handful of evangelical Christians who go under the name "Repent America" attended, carrying bullhorns they used to spout anti-gay slogans. After a confrontation with police, they were arrested.
But rather than just slap them with disorderly-conduct charges, as has been the case with other protesters in this city (such as those who attempted to disrupt traffic during the Republican National Convention in 2000), the district attorney pressed felony charges that could land Richard Marcavage, the leader of this radical-right splinter group, in jail for years.
Ominously, the local American Civil Liberties Union refused to jump to the right-winger's defense. That's inconsistent with the ACLU's history, since this is the same group that defended the right of American Nazis to march through a neighborhood full of Holocaust survivors in spite of arguments that such an action was also an invitation to mayhem.
For the ACLU, and for a Philadelphia District Attorney who is up for re-election this year, the need to protect free speech doesn't extend to cranks if they offend the sensibilities of their current donor base.
Defenders of these draconian charges which the courts are all but certain to eventually dismiss will claim that Marcavage's appearance at Outfest serves as an example of what U.S. Supreme Court Justice Oliver Wendell Holmes was talking about when he wrote in 1919 that "the most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theater and causing a panic."
But the chances of proving that even Marcavage's unwelcome presence was, to use Holmes' dictum, "of such a nature as to create a clear and present danger" are virtually nil. The point of the prosecution is to deter future protest something that might be good for domestic tranquility but a clear violation of Marcavage's right to have his say, even if most of us believe he would be better off keeping quiet.
All of which leads me back to Hentoff's rule about tolerance. We have the right to expose to the light of day things we oppose. But we don't have the right to silence our opponents. Too bad that's a simple rule that some in academia, and even the legal profession, are still tripping over.