Friday, March 27, 2015

Free Speech 101

Edit: Hello fellow Popehat fans! Please check out my other posts as well! Many thanks to Popehat for the link.

Once again, the fair weather friends of the First Amendment are out in force. Following the racist chant at the University of Oklahoma, there has been the typical swarm of fallacious commentary and downright stupid attempts to justify the University's unconstitutional expulsion of the leaders of the chant. I'm not going to be as thoughtful as the nation's leading First Amendment and Free Speech scholar or the internet's most prolific Free Speech legal defender, and generally I do try to limit my writing to original thought and ideas.

But there isn't a point in the free speech debate where repetition becomes redundant. So here are the important points:

1) Hate speech is protected speech.

There is no "But that was really mean" exception to the First Amendment. If Nazis can march through a Holocaust survivor community, people cannot be punished by the government for speech. Even all the exceptions to speech protection are based on the subsequent action, not the speech itself. Yes, that means even ugly, racist speech gets protection. In fact, all free-speech advocates agree; if the ugly speech that a large majority dislikes is not protected, we do not have free speech at all.

2) "Fire in a crowded theater" doesn't mean what you think it means.

That phrase was not used to justify penalties for causing a panic or inciting a riot. It was used to justify felony convictions for a group of antiwar pamphleteers opposing US entry into World War 1 and the draft.

Yeah, under the "Crowded Theater" standard, Code Pink and the entire antiwar movement should be in jail. Oops.

Obviously, the Supreme Court has gutted the cases that used the standard exemplified by that phrase. The Court has instead found that all kinds of expression, including expressive conduct like flag-burning are protected. People who quote the "Crowded Theater" doctrine are really calling for a cleaner, simpler time, where being peacefully critical of the government was a felony and the First Amendment was a dead letter.

When someone quotes that line, they reveal a basic ignorance of First Amendment jurisprudence and unintentionally support making criticism of the government a felony.

3) The "Government" includes all of its subsidiary organizations, including state colleges and universities.

State colleges and universities are bound by the First Amendment and cannot grant punishments or rewards for expressing certain opinions or beliefs. Private universities are still, well, private and are not bound.

That means that expelling students for unpleasant speech is not constitutional.

4) Yes, there is speech that is unprotected, but not because you don't like it.

There's an exception for extreme pornography, and for words that inspire immediate violence. In short, if the speech isn't going to get someone punched in the face or something set on fire in the next few minutes, it's protected.

So, if you want to make the argument that racist speech on a state university should result in expulsion, your first step is to repeal the First Amendment. And it's time to be honest; most of the people who make the argument "Free Speech, except" are actually making the argument "Popular speech only". Public repeal of the First Amendment is now on the table. Where do you stand?


  1. Where does Michael Brown's stepdad's famous "Burn this bitch down" inciting of the Ferguson riots fall according to this definition? I don't see the Justice Department going after him.