A Chilling Effect on Freedom of Speech

It has become clear to me I could never be appointed to a federal office. Why not? Because I’m a teacher, and I talk too much.

I couldn’t get elected to federal office for the same reason Larry Summers got shot out of the presidency of Harvard like a circus clown out of a cannon: because I prefer to think about issues from several angles and points-of-view. When you’re a teacher, you want to get students thinking, and one way of doing this is by posing hypothetical examples. “What if…?” “Consider how things might have been different if….”

Any one of these mental explorations could certainly be used to defame and destroy me if I were up for a public office. Almost anything anybody says can be turned into something stupid if it is taken out of context and edited a certain way.

John Stewart on “The Daily Show” specialized in this sort of thing. He would show a clip of a politician speaking, cut it at just the right moment to make the speaker look stupid, then raise an eyebrow, look at the camera with a puzzled expression and say, “Huh?” to the uproarious laughter of his young adult audience. The implication was clear: “We know from our spot on high that this guy is a scoundrel or an idiot.” Senators, congressmen, and others with decades of experience can all be dismissed, not with an argument or a deep dive into the data, just a roll of the eyes.

I won’t deny Stewart could be funny. But I hated the habits he was teaching America’s youth. His show could have been titled: “How to Be Self-Righteously Hypercritical About People Actually Trying to Do Something About Society’s Problems.”

I mention all this because there is a decent Catholic gentleman named Gordon Giampietro, whom Hadley Arkes wrote about here last week, who has been nominated for a position on the federal bench. This man is currently being labeled “racist” and “unqualified to be a federal judge” because he (a) expressed his agreement with the standard Catholic position on marriage on a local Catholic radio show, and (b) appeared to question (in an off-hand way in a very brief comment to an article by Hadley Arkes) whether addressing what he called America’s “original sin” of slavery by the use of racial quotas was the best approach. Both positions are of course heretical from the point-of-view of the contemporary liberal intelligentsia.


The Catholic Church is forbidden to label as “dissenters” those who expressly deny and defy the Catholic Church’s firm and irrevocable teaching about abortion, and yet those who dare to even question the current wisdom of the liberal elite are labeled “morally unfit” and shunned.

You get a pass if you’re a Catholic “of the right sort,” like Diane Feinstein or Nancy Pelosi. But if you’re a Catholic “of the wrong sort” – remember the “dogmatic” circuit court nominee, Amy Barrett – then you become “intolerable to the tolerant.” And since “the tolerant” understand themselves to be “the good guys” fighting the forces of ignorance and intolerance, any means is justified by the end they seek.

Did you know – and this might be worth keeping in mind – that in today’s world, if you write a quick comment on a The Catholic Thing article some morning as you’re about to get on the road to work, some sleazy political operative receiving a hefty fee for “opposition research” might dredge it up, selectively edit it, and use it against you to keep you from getting a job? This is what has happened to Giampietro.

The Supreme Court has frequently (and rightly, in my view) bent over backwards in their First Amendment jurisprudence to repel any cases of what they have termed a “chilling effect” on the freedom of speech. The speech-Nazis now patrolling our every written word and verbal utterance are silencing freedom of expression as surely as any of the laws ruled unconstitutional by those courts.

I sometimes ask students to consider how things might have been different if, instead of the Supreme Court deciding to desegregate the public schools in Brown v. Board of Education, the nation had been able to find a way of desegregating the schools without this sort of judicial intervention. Am I opposed to Brown? No. But it is worth asking whether the tendency toward judicial imperialism that has followed in its wake is entirely healthy for a constitutional republic of the sort the framers of our Constitution envisioned. So I ask them to consider, “Was there a better way?”

If someone were to post an article accusing me of “questioning the decision in Brown,” (even though I don’t), this would likely be enough to get me banned from any federal office. Who knows? Depending upon the furor, and regardless of the truth of the matter, my university might decide it is no longer in their financial interest to have a “controversial” theologian like me teaching here.

Over 65 percent of our students are minorities, and they might not want to take classes from a notoriously “racist” and “bigoted” professor now that my “sordid” record has been revealed. If recent experience with the media is any guide, all of us are one wayward comment away from a firestorm we won’t be able to put out no matter how hard we try, no matter how unfair.

Gordon Giampietro appears to be a fine man who would interpret the law, not make it, which is likely one of the things that makes him so unsuitable to his opponents. I hope he gets his appointment to the federal bench. But whether he does or doesn’t, we have to stop policing people’s every word as if this revealed everything we need to know about their character.

This form of “gotcha’ journalism” cheapens public discourse and makes it harder for people, whether liberal or conservative, to speak the honest words we need to hear from each other, especially those with whom we disagree.


*Image: Freedom of Speech by Norman Rockwell, 1943 [Norman Rockwell Museum, Stockbridge, MA]

Randall B. Smith is a Professor of Theology at the University of St. Thomas in Houston, Texas. His latest book is From Here to Eternity: Reflections on Death, Immortality, and the Resurrection of the Body.