You can’t say that anymore

Utah Valley University’s Center for Constitutional Studies hosted a two-day conference on September 16-17 themed around free speech entitled “You Can’t Say That Anymore.” Panel topics ranged from free speech in the media and the workplace to free speech in universities, with question and answer sessions after each panel. Guest speakers and panelists included Eugene Volokh, Jonathan Turley, Richard Epstein, Lindsay H. Hoffman, Deborah Peel, Stanley Fish, Barbara Lee and Robert O’Neil.

Volokh, a University of California, Los Angeles professor, opened the conference with a keynote address, “Freedom of Speech and Antidiscrimination Law,” and then joined Turley and Epstein for a panel on free speech in the workplace.

The first amendment does not directly protect free speech from private employers, but from Congress – “Congress shall make no law respecting an establishment… or abridging the freedom of speech.” Volokh explained the history of discrimination and state laws that do protect employees’ free speech.

The benefits of having these laws are that the marketplace of ideas thrives, and a democratic government is encouraged. The cons are that the free speech might become a tense point with customers, employees may have to associate with those they find repugnant and firing someone becomes more difficult. He believes that current anti-discrimination laws are sufficient.

“My tentative sense it that I don’t think we need further anti-discrimination laws and further limitations on an employer’s ability to decide whom to hire and whom to fire, especially because of this – these laws do more than just protect against political-based firing. They also interfere with the ability to fire employees who should be fired by those who have the power to fire without fear of a lawsuit,” said Volokh.

Turley, a George Washington University Law School professor, spoke about the “little brother problem,” the disintegration of free speech by the private sector – especially with the elimination of specific phrases. Political correctness has eroded language. Turley spoke against governmental bodies ruling phrases as offensive and brought up the example of a patent office taking away the Washington Redskins’ trademark. The problem isn’t what conclusion is drawn but who is drawing it, regarding what is offensive.

“Universities are so important in terms of free speech because they help shape the values of people in a very important way. The most important value we have to depart to students at great universities like this one is to say that we live in a pluralistic society, that we want to engage ideas, that we want to be exposed to different ideas,” said Turley. “But more importantly, the one article of faith that we have in common, the one covenant of faith that we have particularly as academics, is this tolerant of ideas, even offensive ideas. Unfortunately, universities have led the trend against those values.”

Fish, a New York Times columnist, said that if there is a definition of free speech, there has been a logical commitment to censorship; there is some information that does not deserve to be tolerated. Truth requires exclusion of untrue claims.

“There is no such thing as free speech. Any free speech regime is actually formed by exclusions it does not acknowledge, usually under the rubric of ‘it goes without saying.’ You can’t find a free speech regime; it’s just a question of what exclusionary structure will not be called ‘free speech,’” said Fish.

Epstein, an author and New York University professor, spoke about unions and the ramifications of compelled speech. Peel, a doctor and founder of Patient Privacy Rights, spoke about the leak of and lack of privacy for health data. She is concerned because of the lack of a trail that shows where data came from and where it is accessible. Hoffman, an associate professor at the University of Delaware, asked the question of what media should disclose.

Professor Rick A. Griffin of the Center of Constitutional Studies organized the annual event.