The phrase "the spirit of the First Amendment" often signals approaching nonsense. So, regrettably, does the phrase "free speech" when uncoupled from constitutional free speech principles. These terms often smuggle unprincipled and internally inconsistent concepts — like the doctrine of the Preferred+ First Speaker. The doctrine of the Preferred First Speaker holds that when Person A speaks, listeners B, C, and D should refrain from their full range of constitutionally protected expression to preserve the ability of Person A to speak without fear of non-governmental consequences that Person A doesn't like. The doctrine of the Preferred First Speaker applies different levels of scrutiny and judgment to the first person who speaks and the second person who reacts to them; it asks "why was it necessary for you to say that" or "what was your motive in saying that" or "did you consider how that would impact someone" to the second person and not the first. It's ultimately incoherent as a theory of freedom of expression.These are good points, particularly the idea of the Preferred First Speaker. So the following isn't meant to be critical.
But what does it mean that so many people really seem to believe that private retaliation -- whether in tangible forms such as economic boycotts or firing someone from a job, or even intangible form such as overly vitriolic responses -- poses a threat to free speech on par with government censorship? Does that mean we have to maybe reevaluate the concept a bit?
After all, if the issue really is just a problem of "chilling", private actors can do that nearly as well as the government. Maybe not quite as efficiently -- the government's power to imprison you is difficult to top -- but most people would view the loss of their job or even the loss of fraternity as a sufficiently grave deterrent to avoid voicing certain opinions. And as everything from the continued worries over "cyberbullying" to my own "Criticism as Punishment" post indicate, people seem to perceive these sorts of private sanctions as punitive in nature.
Again, none of this is to say that we should actually treat hostile private reactions to speech as on par with government censorship of speech. A functioning public sphere requires that we be able to criticize, sometimes harshly, and requires that we be able to react negatively towards the speech of others, even stridently. But again, the fact that there is such a large popular consensus that is a real and genuine problem does counsel that this is a problem that requires deeper thoughts than just drawing a line between public and private and leaving it at that.