There Have Been So Many Bad Lefty Free Speech Takes Lately

The existence of white nationalist Richard Spencer, and other bigoted far-right figures like him, poses a genuine challenge to public universities. Conservative student groups invite these sorts of figures to speak fairly often, and the courts have consistently held that public universities can’t really interfere with such events. So-called viewpoint discrimination is, even when the viewpoint in question is odious, almost always prohibited on public university campuses on First Amendment grounds. (Private universities are a different, somewhat more complicated matter.)

This is a firmly established, uncontroversial reading of the law — a consensus among both legal scholars and the organizations that study this issue the most closely. “Hate speech is protected speech,” notes the Anti-Defamation League. “A university’s ability to limit a speaker based on the content of the speaker’s message is extremely limited.” In its guide for students hoping to respond to the alt-right’s recent mobilizations on college campuses, the Southern Poverty Law Center explains that “[a]s outrageous as their comments may be, they are protected by the First Amendment, except in extreme cases in which a speaker incites violence, for example … No matter how repugnant one may find a speaker’s views, as long as the college has a policy of allowing student groups to invite people from outside their campus to speak, university administrators cannot pick and choose based on the views the speaker holds.”

It isn’t fun to have a white nationalist spew racism on your university campus. It upsets students, reflects poorly on the university itself, and sometimes draws far-right activists who can be dangerous and violent (as well as counterprotesters, who, while in no way morally equivalent to white supremacists, can also be dangerous and violent in their own right). Because of all of this, the question of how a university, or student groups, should respond to a Spencer invitation is fairly complicated. Depending on one’s politics and assessment of the situation, one could conceivably argue that a university should simply deny the speaking request anyway; or students should try to physically prevent the event from occurring; or allow the talk to proceed but schedule counterprogramming dedicated to fighting bigotry; or ignore the speaker and hope the media does the same. More broadly, one could also argue that it would be worthwhile to launch an effort — one that would surely be time and resource-intensive, to be sure — to get the courts to eventually redefine things so that speakers like Spencer don’t have a right to free speech, perhaps by carving out in court rulings some sort of First Amendment exception for “hate speech” (many liberals seem to believe such an exception already exists, but it doesn’t).

None of these approaches is perfect and all have downsides, in some cases potentially severe ones. In my view, for example, it isn’t worth it to ask students to risk arrest or physical harm just to physically prevent Spencer from speaking, when 20 minutes later he could post a video giving the exact same speech and draping himself in sanctimony over having been “censored” (though I understand that there are good-faith disagreements with this position, and that many students find it understandably frightening and upsetting to have someone like Spencer on campus). But at least these views acknowledge the simple fact that as far as American courts are concerned, in this sort of situation, Richard Spencer has a right to speak on a public campus he has been invited to.

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Unfortunately, there has emerged a subgenre of left-of-center punditry which, rather than grapple with the complicated ramifications of this reality, instead pretends difficult free-speech questions can be “resolved” by simply swapping them out for a set of different, much less interesting questions. This commentary focuses on questions like “Is Richard Spencer a bigot?” (yes) or “Is bigotry morally acceptable?” (no), and “Does Richard Spencer engage in what could be considered ‘hate speech’?” (yes). But what you never learn from reading these pieces is that none of these questions has any bearing on what a real-life public university should do when real-life Richard Spencer is scheduled to give a real-life talk. Distressingly, even academics who should know better are playing this game.

An article that recently ran in Vox headlined “There is no 1st Amendment right to speak on a college campus” is a stunning example. Written by Robert C. Post, a legal scholar (!) at and former dean (!!!) of Yale Law School, the article simply doesn’t acknowledge the very real legal landscape that dictates the terms of this debate, and instead, in a woolly and morally righteous way, takes the reader on a meandering tour of various non sequiturs pertaining to Robert C. Post’s personal values and philosophy and opinions on what universities are — none of these thoughts and opinions having much to do with what a public university in the crosshairs of Spencer and his ilk might actually be able to do.

In a section subheadlined “There are many arenas in which all ideas are not considered equal” — whoa! — Post points out that “[w]e do not apply to doctors sued for malpractice the core First Amendment doctrine that ‘there is no such thing as false idea.’” Then he notes that universities have an obligation to teach their students stuff that is true, and that they judge faculty members on the quality of their ideas. Even setting aside the fact that people disagreeing about what’s true is one of the principle reasons the First Amendment (and universities!) exists, none of this has anything to do with campus-free-speech issues as they exist in the real world. Most bizarrely, Post argues that “universities can and must engage in content discrimination all the time. I subject my students to constant content discrimination. If I am teaching a course on constitutional law, my students had better discuss constitutional law and not the World Series” (emphasis his). But when people reference “content discrimination,” they are very obviously not talking about a professor keeping a class on track. They are talking about areas in which First Amendment law, as interpreted by the courts, is applicable — one of those areas being the question of whether administrators can step in to block controversial or bigoted speakers invited by student groups.

Post continues (unfortunately):

Another “bedrock principle” of the First Amendment is that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Yet no competent teacher would permit a class to descend into name-calling and insults. Even if the object of classroom education is to expose students to ideas that they might find disturbing or threatening, it is nevertheless inconsistent with learning for students to experience this encounter in settings where they are personally abused or degraded.

No one anywhere is claiming that a teacher maintaining control of a disorderly classroom has anything to do with the First Amendment. But again, that question — What should universities do about Richard Spencer? — is difficult and involves trade-offs and the morally unsatisfying reality that the law says Spencer gets to speak. So why not swap it out for a much more obvious question: “Does the First Amendment prevent professors from maintaining order in their classrooms?” (Thankfully, it does not.)

The article goes on for a while in a similar vein. Post eventually gets around to campus speakers, but things don’t get any less strange:

As universities clarify why they support student-invited outside speakers, they will at the same time clarify the circumstances in which the communication of such speakers can be regulated. I very much doubt that the First Amendment rights of invited speakers will be of much weight in this process. Instead judgment will turn on how supporting or not supporting a given speaker, or a given policy of supporting student groups to invite speakers, fulfills the articulated mission of the university [emphasis his].

It’s unclear whether Post is talking here about public or private universities, because he never even makes that vital distinction. But still — huh? Post, a legal scholar, is suggesting that university administrators should get to determine whether speakers invited by students fulfill the “articulated mission of the university”? What does this mean? What if students disagree with that mission and want to express that disagreement? The potential for abuse and confusion in such a system is, on its face, rampant. It’s also strange for a legal scholar to say that he “very much doubt[s]” that the First Amendment applies in a situation in which the courts have loudly and repeatedly stated that it does.

Post’s article may be one of the worst in this subgenre, particularly given the author’s credentials (to its credit, Vox also ran a much saner piece by another legal scholar on the same subject at the same time), but it’s just one of many deeply bad, recent left-of-center takes on free speech.

It’s understandable why the subgenre is peaking at the moment: After all, white nationalism is scarily salient, and many of the same people who support it do so under the guise of pretending to be “free-speech activists,” and so on. More broadly, both the right and the far right have generated scads of hypocritical, ill-thought-out opinions on free speech. In one breath they’ll complain about how campuses are stultifying indoctrination camps where no one can openly challenge anything, and in the next they will call for a blanket suspension of “social-justice courses” on college campuses, without even bothering to define that phrase clearly. For every bad free-speech take from the left that’s out there, it would be easy to find several from the right.

But progressives and leftists should be better than that: Just because those on the right, some of them very literal Nazis and white nationalists, promote their ideology by contorting free-speech arguments into pretzels doesn’t mean those who oppose them should follow suit. Unfortunately, this conversation is getting so muddled and confused, and the ratio of righteous anger to actual knowledge of how the First Amendment works so high, that it’s getting harder and harder to even understand the arguments being made.

Major outlets are publishing arguments nominally about free speech that don’t even have a coherent point. Here’s Ulrich Baer, an NYU professor of German and comparative literature, as well as a vice-provost there, on the New York >Times website back in April:

The idea of freedom of speech does not mean a blanket permission to say anything anybody thinks. It means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community. Free-speech protections — not only but especially in universities, which aim to educate students in how to belong to various communities — should not mean that someone’s humanity, or their right to participate in political speech as political agents, can be freely attacked, demeaned or questioned.

The shift from the first half of the paragraph, in which Baer purports to be stating what freedom of speech “means” (and offers a description that is quite wrong, legally speaking), to the second, in which he discusses what free speech “should” mean, is subtly revealing: Again, the author is simply swapping out a set of complicated, tough questions guided by current jurisprudence for a far easier one: “What would I, Ulrich Baer, like free speech to mean, setting aside everything the law actually has to say about this question?” In real life, of course, all sorts of viewpoints that could be fairly described as dehumanizing others — not just Richard Spencer’s, but even, for example, opinions about wonky zoning decisions that could lead to a neighborhood’s residents being evicted — are very much protected speech. What good does it do anyone to write a column in a major publication saying, in effect, “I wish ‘free speech’ meant a thing different from what it really does” — especially when you don’t go on to actually lay out that view with any complexity, or to grapple with how you would square it with the law as it stands?

It’s no surprise that these half-baked free-speech takes often swing the door open to outcomes that many progressives would find outrageous. Post apparently wants campus administrators — a famously corporate-minded, risk-averse group — to tell student groups who does and doesn’t get to invite speakers based on vague criteria pertaining to a university’s values or mission. Good luck getting Black Lives Matter speakers onto certain southern campuses. Baer, similarly, seems to think that speech in which “someone’s humanity, or their right to participate in political speech as political agents, can be freely attacked, demeaned or questioned” is a separate, not-quite-free category. The more hard-line factions of the Palestinian liberation movement dehumanize Jews and Israelis. Would Baer be happy with an outcome in which Palestinian activists were banned from speaking at a public university on these grounds? For that matter, should Zionist activists be banned because hardline Zionists have the exact same tendency, just pointed at Palestinians and Arabs instead?

The point here isn’t to offer trollish hypotheticals — and I would argue that the specter of powerful figures banning BLM or Palestinian activism is quite real, anyway — but rather to point out that when you don’t talk about free-speech issues in a rigorous way, when you chase ill-defined terms and moral feel-goodery rather than something more concrete, you will inevitably wander into a tar pit. Over and over and over.

The biggest such tar pit I have come across recently appeared in a >Pacific Standard article by Noah Berlatsky, who wrote about a late-September incident at the College of William and Mary in which BLM protesters were able to scupper an ACLU event by loudly protesting inside the venue. This led to a wave of articles denouncing the shutdown, and Berlatsky’s article serves mainly to denounce the denouncers for, in his view, misunderstanding what free speech is.

[T]he incident at William and Mary does not directly involve the First Amendment; the protesters who interrupted the speech are not deputized government agents. “We’re talking about two people in the same space in the same moment who are both trying to speak, and they can’t both speak at the same time in the same place,” Angus Johnston, a historian of student activism at the City University of New York, tells me. Civil liberty organizations often don’t have a lot to say about that situation, he adds, while individuals generally “have a moral intuition in that context which is ambiguous and complicated.” Free-speech principles are relatively easy to apply when the government tries to shut down an individual’s expression. But when you simply have two people talking at once, civil libertarians don’t necessarily have a clear way to choose between them.

Johnston points out, for example, that if a street preacher were haranguing passersby, and a group got together to shout him or her down, most people wouldn’t see that as a problem. Institutions may have rules to grant invited speakers more protection, and may choose to have security remove hecklers. “It’s more of a ‘being gracious to your guest’ kind of an argument, being gracious to the audience, letting the audience hear what they came to hear,” Johnston says. “But I’m not sure that that’s a free-speech argument.”

The level of wrongness contained in these two paragraphs is astounding. The wrongness starts with the first-sentence claim that “the incident at William and Mary does not directly involve the First Amendment [because] the protesters who interrupted the speech are not deputized government agents.” But BLM exercised what is known as a “heckler’s veto” — disrupting an event so much that it cannot go on — and as Zach Greenberg of the campus-free-speech organization the Foundation for Individual Rights in Education explains on a page dedicated to this important concept, the courts have ruled that such vetoes do, in fact, violate the First Amendment, whether the disruption is merely verbal (as it was in this case) or physical:

[T]here is no First Amendment right to shout down a speaker. If a governmental actor, such [as] a public university, sides with the heckler by canceling the event or refusing to protect the speaker against use of force, it has failed to uphold the speaker’s free speech rights. In Forsyth County v. Nationalist Movement (1992), the Supreme Court held that the First Amendment protects “[t]hose wishing to express views unpopular with bottle throwers … Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”

The College of William and Mary is a public institution, so all of this stuff applies. Later on in the above excerpt, Johnston explains that in these cases, “We’re talking about two people in the same space in the same moment who are both trying to speak, and they can’t both speak at the same time in the same place.” Maybe this is about civility or manners, but Johnston is “not sure that that’s a free-speech argument.” I promise you, this is quite wrong, and is a very easy thing to Google!

But again, it’s that same formula: Johnston is apparently uninterested in answering questions pertaining to this actual incident and how the law would view it from a free-speech perspective, so instead he swaps out a different, easier question: “Setting aside, you know, the well-defined legal aspects of this, what do I, Angus Johnston, think about it?” (For those who want to know more about the heckler’s veto, which as it turns out is a very interesting subject, Ken White has a very good explainer on his legal blog Popehat.)

And yet again, this sort of meandering shruggery leads us to a dark place: Johnston very much seems to be endorsing the view that on a given campus, whoever can muster the muscle to shut down an event gets to determine the bounds of acceptable speech. This is a pretty bad opinion. Not to beat up too much on the South, but there are many southern campuses that would benefit greatly from more pro-choice speakers and events, and in Johnston’s model, it’s fine for the Campus Crusade for Christ to march in and protest these events until they get shut down. After all, “We’re talking about two people in the same space in the same moment who are both trying to speak, and they can’t both speak at the same time in the same place.” If only there were some system that guaranteed the rights of a speaker at a given event …

All of these bad takes arise from the same place: At root, people deeply want it to be the case that Richard Spencer doesn’t have a right to speak in public, let alone on public university campuses, so they contrive really silly reasons why, in their imaginary world, actually he can’t. Nor do some left-leaning pundits and academics want it to be the case that sometimes a protest put on by a sympathetic group like BLM really does violate someone else’s free-speech rights. So these pundits and academics just make something up about how “No, no, no, you see this isn’t really about free speech” — when it very clearly is!

It doesn’t help students to falsely tell them that Richard Spencer doesn’t have a right to free speech on public campuses — when the law says otherwise. And it doesn’t help society to spread further misinformation about the First Amendment — a widely misunderstood topic as it is. If you care about fighting hateful ideas, you should make arguments that are at least a little bit connected to reality.

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