What’s the state of free speech in America?
Sanford Ungar, who teaches about it at Harvard and Georgetown, has a simple, depressing answer.
“It’s a mess,” he says.
It’s not just the problems on college campuses where high-profile speakers haven’t been allowed to talk. It’s not just what happened in Charlottesville, Virginia, where a counterprotester was run over and killed. It’s not just President Donald Trump’s insistent call for the firings or suspensions of NFL players who take a knee during the national anthem to protest police violence.
An insidious problem also is developing in dozens of states where legislatures are considering - and sometimes approving - new laws that restrict free speech.
“They are criminalizing things that are pretty routine,” Ungar told me. “Much of the activism of the Vietnam and civil rights era would be completely illegal” under the new laws.
The lunch-counter sit-ins that were a staple of civil rights protests in the ’60s would, under some new legislation, be punishable because they “disrupt commerce.” And the demonstrations that brought thousands into the streets of major cities to protest the Vietnam War would be a crime because they blocked traffic.
Twenty-seven states have considered such legislation, he said. Twelve bills have become law, and many others remain under consideration.
Some of the bills sound perfectly acceptable at first because their purported aim is tranquility.
But here’s the problem: Meaningful protest isn’t always as mild as milk. The new laws have little tolerance for the tumultuous reality of dissent.
In Iowa, for example, the legislature considered a bill to punish protesters who block highway traffic with up to five years in prison.
In North Dakota, the governor signed a bill that would punish masked individuals in any public forum who are trying to conceal their identity.
In Arizona, the state Senate approved a bill that would add “rioting” to organized crime statutes, making participation in a protest that turns into a riot a possible criminal racketeering offense.
Florida even considered a bill that, in some cases, would exempt drivers from liability if they struck a protester.
Traci Yoder, National Lawyers Guild director of research and education, predicts that whether this wave of bills ends up passing or not, the effect may be the same - to tamp down dissent.
“Few people would be as willing to protest if they thought they could easily be arrested, fined, imprisoned or even killed,” Yoder wrote. And most regular citizens aren’t keeping track of the details, she said, but may know that the penalties have been vastly toughened.
It amounts to a nationwide movement to chill speech.
And while it might be convenient to blame it on Trump’s hard-line views on law enforcement, much of this movement predates the Trump administration. A substantial amount of the proposed legislation stems from protests over the Dakota Access pipeline and from the Black Lives Matter movement.
While countering this trend won’t be easy, Ungar is making a start with the Free Speech Project, based at Georgetown, with funding from the university and the Miami-based John S. and James L. Knight Foundation. (The former president of Goucher College in Baltimore, Ungar is a journalist, a former host of “All Things Considered,” and the author of an acclaimed book on the Pentagon Papers.)
One element is a Free Speech Tracker, which has more than 50 entries for troubling incidents or legislation around the country. That’s likely to grow dramatically over the next few months, he said.
A journalistic reality is part of the problem: There are far fewer state-government reporters around the nation than there were a decade ago. A Pew Research study showed a 35 percent decline from 2003 to 2014; it’s undoubtedly worse now.
That means that some state legislatures are freer to act at will without the watchdog function - and the public reaction to it - that once was routine.
At the root of these laws, Ungar believes, is a false narrative: “Spoiled students and liberal faculty shutting down speech because they don’t want to hear and confront the truth.” And, at the same time, the idea that protests of various kinds are “getting out of hand.”
So conservative lawmakers are stepping in to, in their view, fix it.
It’s not so simple, he says, and the stereotypes translate quickly into a political diatribe about free speech in which nobody wins.
His effort will not only keep track of what’s happening - useful in itself - but find ways to promote civil discussion across political divisions.
Protecting this basic American right sounds like it should be simple enough, but it’s often a minefield. (Or, at the moment, a football field.)
“Everybody believes in free speech,” Ungar notes, “until you get to the topic on which they don’t.”