Everyone Has The Right To Free Speech!

I've written on this before but it's an issue which is worth revisiting. The University of California at Berkeley, which is a public university, has gotten something of a reputation as ground zero for battles over free speech in the past and the present. University students and others have used the threat of violent reactions or actual violent reactions to prevent or shut down speeches by conservatives such as David Horowitz, Milo and others. The latest skirmish in this battle involves conservative writer and provocateur Ann Coulter, who had planned to speak at Berkeley on April 27. Berkeley required a number of conditions for this speech to proceed, all of which Coulter claimed she followed. Nonetheless  UC Berkeley said that it simply could not guarantee Coulter's safety nor that of its students or other people so they cancelled the April 27th speech. After some negative reaction UC Berkeley backtracked and stated that an early May date at a different venue might be possible. That also happens to be when many students would most likely be in finals or off campus, so the possible audience for Coulter's speech would be much smaller. At the time of this writing Coulter is stating that she will give a speech on April 27 as originally planned. Period.This sets up a possible showdown between Coulter and campus or city police. This is of course probably exactly what Coulter wants.

As part of this generalized controversy over conservative "hateful" speakers being prevented from speaking at public universities, former Vermont governor and DNC chairman Howard Dean tweeted that "hate speech" was not protected by the First Amendment. Some writers and intellectuals that I otherwise appreciate and respect actually agreed with him. 

Hate speech is not protected by the first amendment. https://t.co/DOct3xcLoY

— Howard Dean (@GovHowardDean) April 21, 2017

I am no lawyer. Some lawyers whom I know have stated that there are no constitutional rights which don't have exceptions in some cases. I don't know about that. As mentioned I'm just an IT project manager. But I do know that whatever exceptions currently exist to your First Amendment rights, saying something "hateful" isn't one of them. There is a pretty detailed article on this by the admittedly conservative law professor Eugene Volokh which you can read here. 

This leads me to repeat what I’ve said before: There is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn, for instance, Islam — or Muslims, or Jews, or blacks, or whites, or illegal immigrants, or native-born citizens — as one is to condemn capitalism or socialism or Democrats or Republicans. As the Supreme Court noted in Christian Legal Society v. Martinez (2010), the First Amendment’s tradition of “protect[ing] the freedom to express ‘the thought that we hate’ ” includes the right to express even “discriminatory” viewpoints. (The quote comes from the four liberal justices, plus Justice Anthony Kennedy, but the four more conservative justices would have entirely agreed with this, though also extended it to university-recognized student groups’ freedom to exclude members, and not just their freedom to express their thoughts.)

To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible.

Of course, one can certainly argue that First Amendment law should be changed to allow bans on hate speech (whether bigoted speech, blasphemy, blasphemy to which foreigners may respond with attacks on Americans, flag burning, or anything else). I think no such exception should be recognized, but of course, like all questions about what the law ought to be, this is a matter that can be debated. Indeed, people have a First Amendment right to call for speech restrictions, just as they have a First Amendment right to call for gun bans or bans on Islam or government-imposed race discrimination or anything else that current constitutional law forbids. Constitutional law is no more set in stone than any other law.

But those who want to make such arguments should acknowledge that they are calling for a change in First Amendment law and should explain just what that change would be, so people can thoughtfully evaluate it. Calls for a new First Amendment exception for “hate speech” shouldn’t rely just on the undefined term “hate speech” — they should explain just what viewpoints the government would be allowed to suppress, what viewpoints would remain protected and how judges, juries and prosecutors are supposed to distinguish the two. And claiming that hate speech is already “not protected by the first amendment,” as if one is just restating settled law, does not suffice.

But as the Chomsky quote shows as well as the recent petition signed by progressive professor Cornel West, devotion to freedom of speech is something that is or should be cherished by progressives, liberals and radicals as well as conservatives or reactionaries. The problem is that post sixties many people started to believe that the problem with constitutional rights wasn't so much that they weren't extended to all regardless of race or gender but rather that certain rights were limited from inception by having been codified in the US by people only of one particular race and gender. So everything could now be up for debate. I have no problem with having robust discussions about exactly which positive or negative rights should be constitutionally recognized now that everyone regardless of race or gender can vote and have full citizenship.

I do have a problem when people attempt to beg the question by calling someone else's pov "hate speech" and suggesting that it deserves no constitutional protection. Volokh's articles go over all the reasons why that premise is legally shaky. I would just add that no matter what position you may hold on an issue there will be someone else out there who thinks not only that is your position illogical but that you are a bad person and probably need to be prevented from expressing your position. The whole point of living in a post-Enlightenment society is that the government does not regulate our thoughts or ideas or speech, just our behavior. If I want to say something nasty about the majority religion I can do so. If I want to to write something mean about a minority group I can do that as well. If I want to poke holes in a widely accepted scientific theory there's nothing stopping me.  If I want to make fun of your deeply held moral and religious beliefs because I hate people who have them I can do that. There are no blasphemy laws here nor should there be. 

If you don't like Coulter, don't go listen to her speak. Or if you think her statements and beliefs are ludicrous then debate her and make her look like a fool. But I want Coulter to have the right to speak in the public square. I also want people diametrically opposed to Coulter and even further from the mainstream to have the right to speak, to assemble, to protest, to have their books in public libraries. Speaking of "hate speech" anyone can currently order Mein Kampf if he wants. Should that be illegal? I think not. The way to deal with public speech you don't like should be to ignore it or to engage it and show the audience and/or speaker where the flaws exist. We may agree that various people on the right are hateful people. But would we also agree that some people on the left should be shut down? Once you accept the idea of censorship and prior restraint because of threats of violence it's a guarantee that those actions won't be limited to people or works you despise. 

None of this applies to private/personal spaces. You get to decide who enters your home, what they say while there, who comments on your blog, what words can be said at your company and so on. But I don't think anyone's freedoms or rights are protected by trying to prevent your opponents from entering the public square. This just feeds the right's martyr complex. Worse, it enables lazy thinking. If you can only scream the 21st century equivalent of "heretic" at opponents you will slowly lose the ability to engage in critical thinking. You won't be able to articulate WHY an idea is wrong. You'll just be part of the mewling mob yearning for the next bad thinker to be burned at the stake.