Free Speech

Free Speech Has Become Confusing And Chaotic

People should be free to express an unpopular opinion without having to worry about being cancelled.

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Freedon of SpeechFor the 10 people who read my columns regularly (five of them being ATL’s editorial staff), they might know it is now my eighth year writing for this website. So today, I think I can get away with writing about a topic that makes no sense. On that note, I want to write about freedom of speech.

In the past few years, most people’s thoughts about freedom of speech have changed to some degree. The topic has become confusing, divisive, and at times, contradictory.

One problem is how to handle two opposing groups who both claim to be exercising freedom of speech. For example, at least once a year, I hear about a protest at a college or law school because a controversial figure was invited to speak there. Some of the students disrupt the event by making noise or preventing people from entering the venue. Sometimes, they succeed in getting the event cancelled. The event organizers claim that the disruption or cancellation violates their right to free expression. But the protesters justify their action as protected speech.  

So were the organizers or the protesters morally and legally correct? It depends on who you ask although I believe that in general, the group that resorts to fear and intimidation are likely in the wrong. But it doesn’t matter because one day, events with controversial speakers will be conducted virtually. The speakers can stay at their home or office. It will be almost impossible to disrupt these events and attendees can feel comfortable attending anonymously if they choose to.

The second issue involving free speech is allegations of censorship or deplatforming by the major social media platforms, primarily to conservatives. Defenders say that they are private entities who should be allowed to moderate their platforms to combat misinformation and to protect the safety of their users.

The most well known example of censorship was when Twitter and Facebook fully or partially blocked the New York Post’s coverage of Hunter Biden’s laptop left at a computer repair shop. That laptop contained emails that suggested that the Ukrainian company Burisma was paying Hunter to get access to his father, Joe Biden, before he was president. Twitter later reversed the ban, with then CEO Jack Dorsey calling the ban unacceptable. Recently, the New York Times confirmed that the New York Post’s coverage of the laptop was true.

Most would agree that social media platforms like Facebook and Twitter are private entities that should not abide by First Amendment rules. In Manhattan Community Access Corp. v. Halleck, a recent Supreme Court case, the five conservative justices ruled that an organization “merely hosting speech for others is not a traditional, public function and does not alone transform private entities into state actors subject to First Amendment constraints.”

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Also, users have the choice to use less censored/moderated social media platforms. They are out there and will likely gain more attention and users during the 2024 election year.

And the final modern free speech issue is cancel culture, or as some call it, accountability. The idea is that if you are caught in a compromising position (usually saying or doing something offensive) and it goes viral online, the internet mob will destroy you. If you have a job, your boss will be pressured to fire you and you will be unemployable for the foreseeable future. If you own a business, it will be deluged with negative reviews in the hopes of driving away customers and shutting it down.

Cancel culture has been praised because it allowed ordinary people to take down or influence powerful people who are normally untouchable because of their influence or wealth. But it has been criticized for chilling speech on controversial topics, punishing past behavior that may have been socially acceptable at the time, the social punishment being excessive to average people and being inconsistently applied, usually with punishments being harsher to conservatives.

Cancel culture is also affecting the legal profession as some law firms must think about the negative public consequences of taking on an unpopular client. While representing unpopular people is something that lawyers must do from time to time, existing clients have been more vocal about threatening to stop doing business with the firms. While some firms can take the financial hit, others will get around this by working behind the scenes through a lesser-known law firm, or limiting the work to a few trusted partners on a very confidential basis.

But this can be troublesome in the criminal defense setting where this could bring up due process and right to counsel issues. Yes, the Sixth Amendment guarantees the right to competent counsel but not the counsel of your choice. Will the threat of cancel culture negatively affect a lawyer’s professional judgment that can result in deficient performance, thus raising a Strickland claim of ineffective assistance of counsel? It may result in retrials or even conviction reversals. But, in response, the internet mob might try to cancel culture the judge by encouraging a recall or impeachment campaign.  

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Today, due to excessive tribalism, freedom of speech seems to be used ironically as a sword rather than a shield. When I first started writing for Above The Law, I wrote anonymously for a number of reasons, one of them being so that I would be able to say what I wanted without worrying about the consequences. I know that most regular readers have a certain viewpoint and some of the writers here cater to it. But people should be free to express an unpopular opinion without having to worry about being “moderated” or cancelled. Because once in a while, the popular ideas are stupid.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at stevenchungatl@gmail.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

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