By Connor Gorman
At this point there have been numerous pieces written about “free speech,” both as a legal concept and as a principle, as a result of controversies over scheduled public appearances by Milo Yiannopoulos, Ann Coulter, and other similar speakers. But one piece, written by an ACLU Senior Staff Attorney and posted by The Davis Vanguard on April 28, 2017, raises some new points (and plenty of old ones) that should be addressed.
I’d like to start off by saying that, given legal and structural restrictions within our current society, the ACLU does plenty of good work defending people’s rights and I’ve been donating to them monthly for quite some time now, but something the organization as a whole (and quite possibly many of their members, lawyers, etc. as individuals) doesn’t seem to fully appreciate are the nuances around both the principle and the legal extent of free speech (in the case of legal matters it’s highly probable that their lawyers do understand such things but have a very particular interpretation of them which isn’t shared by everyone).
For instance, they abide by a fairly strict interpretation of the Constitution when it comes to gun rights and the Second Amendment, stating that while “particular federal or state laws on licensing, registration, prohibition, or other regulation of the manufacture, shipment, sale, purchase or possession of guns may raise civil liberties questions” it’s still their position that “given the reference to ‘a well regulated Militia’ and ‘the security of a free State,’ . . . the Second Amendment protects a collective right rather than an individual right.”
However, a strict interpretation of the First Amendment would seem to imply that only the government is legally prohibited from engaging in censorship (and even that has been interpreted by many to include certain exceptions) while private citizens and communities have every right to restrict speech that occurs within their purview, often using their own free speech rights to do so. In fact, one could easily argue that it would be a violation of the First Amendment for the police (government agents) or public universities to prevent private citizens and communities from taking such actions. But the problem with this simplistic, liberal analysis of free speech goes beyond the law and gets into the broader ideas and philosophy behind it.
For example, the common claim that “truly free speech means the best ideas will win out” might make sense in a vacuum but fails to hold in a society full of preconceived ideas, cultural norms, and 
social pressures. Essentially, people are often inclined to readily accept things that reinforce what they already believe and quickly dismiss things that challenge their current beliefs. When one combines this fact with a society, like ours, that’s rooted in oppression, bigotry, and the dehumanization of certain groups it becomes clear that using “discourse” to effectively counter arguments which feed into such violence is far more difficult than many people would like to think.
Additionally, in both school settings and society at large we must ask ourselves who gets to determine “when speech crosses the line into targeted harassment or threats or creates a pervasively hostile environment for vulnerable students.” This goes back to questions of power and where the free speech line should be drawn as I and others have discussed previously (see several of the links above and two below). These are important questions that deserve rigorous debate but we must resist the urge to defer automatically to the opinions of those with very particular, limited, and privileged perspectives on such things (like the Supreme Court).
It should also be acknowledged that regardless of one’s position on the larger issues at play here, even by more conventional, restrictive definitions Milo’s public appearances are notorious for “targeted harassment [and] threats” against students and faculty, including trans and undocumented students.
On the specific topic of schooling, students’ rights are regularly infringed upon from “kindergarten to post-graduate studies” in a multitude of ways, not least of which involves the so-called “discipline” process. This doesn’t just occur in the younger grades, though it’s extremely prevalent there, but happens in high school and college as well. I won’t spend any more time discussing this subject because the examples are plentiful, the problems are intersectional (and sometimes subtle), I don’t have much knowledge or personal experience with these things, and it’s worthy of its own article(s) (or book(s)) but it’s a relevant point that I felt should at least be mentioned in this context.
A related point is the patronizing and inaccurate notion that college exists before “true adulthood.” College is certainly a transition period for many but there are a variety of experiences both during and after college which makes it ridiculous to assert, as so many do, that there’s a stark difference between one’s life just before and just after graduating. Furthermore, part of being an adult (in America and elsewhere) is having difficult and nuanced discussions about important political and philosophical topics that aren’t restricted to binary dichotomies.
As a self-described “college professor and university administrator with over two decades of direct experience of campus politics,” someone who I would have expected to embrace a more surface-level understanding of free speech as countless university administrators across the country have done, said in a New York Times op-ed “it has been regrettably easy for commentators to create a simple dichotomy between a younger generation’s oversensitivity and free speech as an absolute good that leads to the truth. We would do better to focus on a more sophisticated understanding, such as the one provided by Lyotard, of the necessary conditions for speech to be a common, public good.
“This requires the realization that, in politics, the parameters of public speech must be continually redrawn to accommodate those who previously had no standing.” The author of this piece is “not overly worried that even the shrillest heckler’s vetoes will end free speech in America. As a scholar of literature, history and politics, [they’re] especially attuned to the next generation’s demands to revise existing definitions of free speech to accommodate previously delegitimized experiences.”
Perhaps it’s the ACLU that needs to rethink its stance on the nature of free speech and analyze the subject in a manner fit for a critical college classroom. I await their assignment.
Connor Gorman is a fourth year graduate student in physics at UC Davis and a head steward in the Davis chapter of UAW Local 2865, the union that represents Academic Student Employees across the UC system
I will not be signing up to live in Connor’s “Benevolent dictatorship” just yet. https://en.wikipedia.org/wiki/Benevolent_dictatorship
But, but they know what’s best for you.
No, they don’t care about “you” – they are worried about a very specific population
So David, as an example are you for shutting down Palestinian speakers on campus who denounce Israeli’s and their occupation? I mean after all, it could lead to a vulnerable Jewish population being vulnerable to people acting out based on the Palestinian speaker’s message.
I’m not advocating the position, I’m explaining theirs
At the same time, the groups advocating would view the Palestinians to be the far more vulnerable population than the Jews. I’m not saying I agree with that conclusion, but that’s why I think they would come down
So you can see the slippery slope their position creates.
I think it would be more a case that the groups advocating agree with the Palestinians and are willing to look the other way.
Ah, yes, the slow boil of the “common, public good”. Common to whom? The Davis bubble? Milo must be truly self loathing as a Jewish, homosexual, immigrant. Notorious or the crowds being played? So much irony in the characterization of this individual as a basis for the article. This is how echo chambers are created and maintained. Do you then become only interested in perspectives that fit within the bounds of the locally accepted narrative? While I think this is a well-written piece, it strikes me as just a more nuanced approach to shutting down voices that don’t conform with locally popular views.
The quote attributed to Aristotle that “It is the mark of an educated mind to be able to entertain a thought without accepting it” comes into play here. Is it possible that there is an unacknowledged fear that some of the messages behind Milo’s antics are impinging upon these educated minds and causing some cognitive dissonance?
“Is it possible that there is an unacknowledged fear that some of the messages behind Milo’s antics are impinging upon these educated minds and causing some cognitive dissonance?”
I sense a different fear, that vulnerable populations are vulnerable to the Milo audience acting out on his message.
There are unstable actors across the spectrum that will be easily incited, e.g. antifas. Given Milo’s demographics, why wouldn’t his core supporters be turning on him? I think what you refer to is a larger choice between tolerance or hate that will be there regardless of Milo or similar characters and a choice of tolerance cuts both ways. That’s the point I’m getting at here. Danger can manifest in many forms and responding from a place of fear can have unintended consequences.
I think you’re right, and just to be clear, my position is a free speech position almost an absolutist position. I believe the greater danger lies in the authority to shut down unpopular speech than to allow “dangerous” to come forward.
Btw, I would like to make clear that I don’t view this as a left vs. right issue. That is an artificial overlay to all this that serves to perpetuate a this-or-that dichotomy. This is about a fundamental right of free speech free from “well-intentioned” censors imo.
But it is a ” left vs. right issue”. It’s been the left shutting down the right’s free speech. I haven’t seen any recent examples of the right shutting down the left.
Keith, I would agree with that assessment in the present case. Part of what I’m saying is that when the question of free speech becomes a political football or weapon it is actually hurting the cause of democracy that those wielding it claim to be protecting.
It’s significant that you say “recent” examples because, in fact, the pendulum has swung back and forth on this issue over the years. In the 60’s and 70’s Vietnam and social protest era, it was liberal protesters whose speech was suppressed by conservatives, particularly on university campuses. Now it’s conservatives who feel suppressed and have relatively recently become avid First Amendment advocates. Kudos to the ACLU for remaining consistent and principled on this issue.
There are signs (i.e., recent examples), by the way, that the First Amendment pendulum may be swinging back in the other direction. We have a president who incited violence against protesters at campaign rallies and, as president, has referred to the press as the enemy of the people. I don’t see a lot of conservatives coming to the defense of the First Amendment in those instances.
David… you wrote,
Key word is highlighted… ‘authority’ could mean “the man”, or as the author notes, ‘the privileged’… it could also mean ‘hecklers’ who use the 1st amendment/free speech (‘tyranny of the masses’) to effectively drown out the information and/or free speech provided by others… proximate example… when a Minneapolis official was trying to hold a press briefing, and was pretty much ‘drowned out’ by an obviously organized group of folk who would not let her be heard, by loudly chanting out demands for the police chief’s removal, although that chief was not present at the ‘event’, which appears to be an unjustified shooting by a police officer (black officer, white woman… but from what has been released so far, would have been equally unjustified had it been a white officer and a ‘woman of color’… or white, or male… a bad “stupid”/wrong).
So, the question we have to ask is, is it just the ‘State’ that is the problem, or ‘have we met the enemy, and is it ourselves’?
The issue gets messier when you go from government censorship to private censorship as you go from the realm of the First Amendment to a broader question about speech. I would perhaps amend “authority” to “ability” in retrospect.
You always bring this up while ignoring the fact that Democrats were caught red-handed on video admitting that they hired activists to incite violence at Trump rallies.
I’ve wondered why David hasn’t covered this. An obvious case where the shooter cop was totally in the wrong and both cops failed to turn on their cameras. Sounds like this would be right up the Vanguard’s alley.
Somali born black Muslim officer who has had several complaints lodged against him in his short (less than 2 year) career and an Australian white woman.
I’ve tweeted on it three times, but have been busy on other stories lately. Clearly a very bad shooting.
Yes Chuck, the left will try to rationalize and legitimize their shutting down of free speech by any means possible.
What specifically is Connor doing to make amends to marginalized communities for his taking of a physics program slot that could have been better utilized by a more deserving person?
[moderator] Please don’t do this kind of thing. It’s off topic and we want to encourage guest authors.
noted
Free speech has never been unlimited. The Founders themselves acknowledged the government’s legitimate interest in limiting seditious speech and protecting state secrets – both of which substantially curtail an individual’s right to free speech. Statutes criminalizing incitement to riot and bullying are consistent with the 1st amendment. Common law and case law have established that yelling “Fire!” in a crowded theater is not protected speech. Either we pass a law against “hate speech”, or we wait until a case like ‘Yiannopoulos vs. The Regents of University of California’ makes it to the Supreme Court for resolution. Until then, it is one group of citizens’ free speech rights vs. the free speech rights of another group of citizens. The proper role of government is to keep the peace when these groups meet in the streets – that’s all.
Given your remarks why do feel it possible to ‘pass a law against “hate speech”’.
Certainly the “loyalists” believed the declaration of independence to be “hate speech”.
” I believe the greater danger lies in the authority to shut down unpopular speech than to allow “dangerous” to come forward.”
That describes my position pretty well, too.
I often express myself bluntly, almost always with intent and always prepared for the objects reaction. What fascinates me about those who exercise their freedom of expression in an extreme manner is how so many of them are unwilling to accept the predictable consequences. For instance, an unkempt stranger decides to express his distaste with a politician by pushing a pie tin in his face from ambush and then feels abused when his victim responds by punching him. I would have been smart enough to duck.
I agree that it is patronizing to imply that college students are not true adults.
Beyond that, agree with Gelber, “Kudos to the ACLU for remaining consistent and principled on this issue.”.
sometimes they get learn something in college,
http://www.dailybulletin.com/general-news/20170721/5-claremont-mckenna-college-students-suspended-for-role-in-protest
Hooray, finally.
Only commenting on the cartoon here:
IF (big IF) this depiction is correct perhaps it’s because college students have used violence to shut down peaceful conservative speakers on regular basis. We all saw what happened in Berkeley and many other colleges. Remove the violence and the police protection will follow suit.
Of course this started to happen once our Orangutan-in-chief won the White House but they say correlation doesn’t always imply causation.