It was a headline that felt like a distinct artifact of the Trump era: Devin Nunes, a Republican congressman from one of California’s less glamorous districts and a dedicated member of Trump’s fan club, sues a cow for defamation. Nunes, last seen carefully and deliberately ignoring the mounting evidence of Trump’s corruption, had finally had enough of a Twitter account that was purportedly run by Nunes’s cow and that regularly posted tweets mocking him. So in epic sue-your-haters fashion, Nunes claimed defamation and libel and all sorts of other unpleasant torts against the cow, along with a Republican consultant named Liz Mair who had also said mean things about Nunes online and Twitter itself for facilitating it all.
Legal analysts generally agree that Nunes’s suit has little chance of succeeding in the courts of law. The court of public opinion has already rewarded the fake cow’s Twitter account with hundreds of thousands of new followers, and Mair is raking in money for her legal defense. But the suit is less about winning a settlement and more about sending the message that all criticism will be met with time-sucking and potentially ruinous legal action.
Nunes is not alone in using lawsuits (or the threats of lawsuits) to silence criticism. In May 2018, President Trump sent a tweet praising Candace Owens (a spectacularly inane grifter who spends half her days accidentally telling her true feelings about Hitler and the other half attempting to walk it back). The Guardian newspaper published an article about Trump’s tweet (which also feels like an artifact unique to the Trump era), with a sub-headline reading, “Owens was thrust into the spotlight after defending neo-Nazis.” Owens responded with a tweet of her own:
“Excuse me, @JamilesLartey but when did I ever “defend neo-nazis”? I suggest the @guardian lawyer up ASAP. I will make suing for libel a sport, and your publication will be ground zero. This is not a game you will win.”
(We should reflect at this juncture that a sport usually does not have a ground zero. There’s a whole other essay to be written on right-wing grifters producing heinously incoherent and mixed metaphors.)
Jordan Peterson, a Canadian psychologist and professor who ribbits out strong opinions about Disney’s rendition of the Snow Queen and the proper role of lipstick in the workplace, is also embroiled in several lawsuits over whether he is, or is not, bad. (He is.) Ben Shapiro, the cool kids’ philosopher voted most likely to suffer a permanent wedgie, recently threatened to sue the Economist for calling his fans “alt-right.” Dave Rubin, too, lives his life in a state of high dudgeon for being variously labeled alt-right, far right, and a toxic, poisonous idiot who tripped over his own hunger for fame into a lucrative grift separating aggrieved racists from their money.
Of course, the United States produces more than its fair share of angry, litigious people; plaintiffs are merely living the American dream. What makes it so interesting, at least to me, is that plaintiffs happen to be the loudest defenders of free speech. Whether you agree with the merits of any particular libel suit (and just to be clear, all of these, at least under US law, are frivolous, vexatious, and utterly without merit), all libel suits are an attempt to silence speech. You can agree that some speech should be silenced — I, for one, am fully on board with the suit brought by the cave diver whom Tesla CEO and recent discoverer of marijuana Elon Musk called a pedophile — but a libel suit is an attempt to silence speech nonetheless.
So what’s going on? Is this mere hypocrisy on the part of people who, like Peterson, are only in the public eye because of their loud claims of dedication to free speech? Is this just an instance of the free speech for me but not for thee phenomenon? Or does it say something deeper about the nature of free speech that its loudest proponents are also the most likely to bring a strategic lawsuit against public participation?
If free speech jurisprudence has a birth year, it is 1919. In that year, as the United States extracted itself from the first World War and the legal system worked through lingering prosecutions of anti-war dissenters, the Supreme Court issued a series of four opinions that, while upholding the convictions of protestors, nevertheless set the foundation for what we now think of as freedom of speech. Three of these cases are famous. Schenck v. United States, written by Oliver Wendell Holmes Jr., laid out the clear and present danger standard, which restricted the government’s ability to punish speakers unless the speech posed an imminent threat to public safety (while upholding Schenck’s sentence to prison). Debs v. United States concerned the criminal prosecution of Eugene Debs, whose conviction was also upheld and who later ran for president from prison, receiving almost a million votes. Most famously, in Abrams v. United States, Holmes wrote a dissent that mapped the way forward for a speech-protective interpretation of the First Amendment that the Court finally embraced in the 1930s.
But largely forgotten to the popular imagination is Frohwerk v. United States, concerning the conviction of Jacob Frohwerk under the Espionage Act for publishing a newspaper critical of the US war effort. The opinion in Frohwerk was also authored by Holmes, and it gave us a rather tantalizing idea: Not all “speech” is indeed speech. Holmes writes that the First Amendment “cannot have been, and obviously was not, intended to give immunity for every possible use of language.” In other words, there is speech that nonetheless falls outside of “the freedom of speech.”
“The freedom of speech” is, after all, not a self-defining phrase. If the First Amendment read, “Congress shall make no law prohibiting speech,” things might be a little clearer. Speech has a dictionary definition; at least, in theory, we can identify it and, maybe, agree on its contents. Instead, the First Amendment reads, “Congress shall make no law … abridging the freedom of speech.” The freedom of speech acts as a container: Some stuff goes inside of it; some stuff goes outside of it. Not every possible use of language goes inside; indeed, not everything that is inside is a use of language. (Famously, flag burning, certainly no use of language, goes inside the freedom of speech box; also famously, defamation, a use of language, goes outside the freedom of speech box.)
What we argue about when we argue about free speech isn’t whether speech ought to be protected. Of course, “speech” should be protected. What we argue about when we argue about free speech is what belongs in the freedom of speech box.
This is all to say that when people call Nunes, Rubin, Shapiro, Owens, and Peterson hypocrites for loudly declaring their love of free speech out of one side of their mouths and announcing yet another defamation suit out of the other, they’re missing an important point. To the Nuneses of the world, criticism just doesn’t belong in the freedom of speech box. It isn’t really speech at all.
Now, that’s pretty silly. Criticism of elected officials is the paradigmatic example of protected speech. It is exactly what we need a First Amendment for. But if you can trick yourself into thinking that not only are your ideas correct, but unassailable, then it’s easy to believe that any attempt to assail them is a vicious assault undeserving of the label “speech.”
This may seem like an obvious point or (alternatively) a distinction too subtle to make a difference. But in reality, it’s the most important point to make about speech. If you get to define what is speech and what isn’t, you get to define the content of the First Amendment. In the last few decades, corporate advertising, unlimited money in politics, and the billboards and pamphlets printed by anti-abortion scam artists have become speech. Meanwhile, union organizing, advocacy of Palestinian rights, and left-wing college protest have become not-speech. They are, at least in the minds of those whose minds matter, outside the freedom of speech box.
So what Nunes et al. are saying is that criticism of them personally is not speech. It may be a possible use of language, but it goes outside the freedom of speech box. That argument is expected to fail in the courts of law, and it should fail. But because the right wing has been so effective at redefining every other term of debate, we should be on the qui vive for attempts to define our speech as simply one possible use of language. And it would be a much better use of everyone’s time to be declaring, loudly and clearly, that Nunes is, in fact, a Trump toady than trying to explain that declaring that Nunes is a Trump toady is in the freedom of speech box.