The Threat to Free Speech is Real. But It Isn’t Coming From Where You Might Think.

BY DAVID SNYDER–Critics of Donald Trump don’t have far to look for evidence that he is hostile to free speech and a free press. Trump has called for criminal prosecution of those who burn the American flag, has declared a “running war” with the media, and routinely derides the press as uniformly “dishonest” and “disgusting.”  

But the most alarming immediate threats to free speech in this new era aren’t coming directly from Trump.  

More than 100 UC Berkeley professors recently demanded that the administration silence a speaker whose extreme views they find abhorrent.  Republican state legislators around the country have recently floated bills that would essentially authorize police brutality against protesters, authorize “unintentional” civilian violence against protesters, and make some forms of unlawful protest a felony.

These may just be idiosyncratic tactical battles in and of their moment — one-off political spats. But they suggest something much deeper, and are potentially more dangerous, than the bluster emanating from the White House.  

They are evidence of a collective forgetting of the core principles underlying the First Amendment. They suggest that, when hyperpartisan push comes to shove, even the most educated and enlightened are willing to cast aside the First Amendment’s most important lesson: that the substance of speech, and the act of speaking, are sacrosanct, with some narrow exceptions, whether the majority agrees with the speech or not.

By design, the First Amendment protects minority voices and viewpoints; popular views have little need for constitutional protection.  As a result, efforts like those of the UC Berkeley faculty and those state legislators in Indiana, North Dakota and Washington state may well fail in the long run. Indeed, some already have.

But if it becomes the accepted norm — socially, legally — for a political majority to exercise its inherently superior political muscle to silence minority voices based on political differences, America will have entered dangerous territory.  

Just in the first few weeks of the Trump Administration, the spate of Constitutionally dubious efforts to silence or punish speakers for the content of their speech — or for the very act of speaking — has been disturbing, to say the least.  

Home of the Free Speech Movement?

The Berkeley case is telling, and perhaps the most alarming of the lot.  More than 100 faculty members at UC Berkeley penned a letter demanding that the administration cancel a speech by the right-wing extremist Milo Yiannopolous.  What the letter demands is a truly extreme remedy under First Amendment law — the silencing of speech by government before that speech occurs.  

The letter was signed by highly educated academics at the pinnacles of their respective fields.  If any group should have a grasp on the principles underlying the First Amendment, this would be it. And yet the letter is, frankly, stunning in its fundamental misconception of First Amendment values and rights.

“We support robust debate,” the faculty members wrote, “but we cannot abide by harassment, slander, defamation, and hate speech.”  The letter  continues:

Yiannopolous’s views pass from protected free speech to incitement, harassment, and defamation once they publically target individuals in his audience or on campus, creating conditions for concrete harm and actually harming students through defamatory and harassing actions. Such actions are protected neither by free speech nor by academic freedom. (Emphasis added.)

The faculty letter, and the above statement in particular, is a First Amendment mess.  First, it confuses two aspects of First Amendment law — post-speech sanctions and pre-publication censorship, also known as prior restraint.  The difference is crucial.  While the Berkeley faculty are correct that defamation, for example, is not protected under the First Amendment, that does not mean that government may prevent the utterance of defamatory statements before they even occur.  With some extremely narrow potential exceptions that would not apply here, government cannot do that.  What government can do is punish defamatory speech after it is uttered.  A court may find that a speaker defamed someone, and then award damages to the defamed person.  

But the faculty letter isn’t interested in post-speech sanctions.   It asks UC Berkeley to do something that the U.S. Supreme Court has described as “the most serious and least tolerable infringement on First Amendment rights” — preventing speech from occurring.  

Second, the faculty letter is simply incorrect that “harassment” and “hate speech” are not protected by the First Amendment.  As constitutional scholar Eugene Volokh has eloquently pointed out, there is no “hate speech” exception to the First Amendment. There also is no “harassment” exception to the First Amendment.   Hateful, harassing, hurtful and derogatory speech are all protected under the First Amendment, again with a few narrow exceptions.  

But even if those exceptions applied to Yiannopolous–and they well might–they almost certainly do not justify a prior restraint.  At most, they might apply to justify post-speech sanctions.  

Punishing the Act of Protest

On the conservative side of this disturbing trend are Republican efforts in North Dakota, Indiana, Washington state and elsewhere to punish protesters and/or the act of protesting.  In North Dakota, Republicans introduced a bill that would authorize motorists to “unintentionally” injure or potentially even kill protesters blocking traffic.  In Indiana, one Republican legislator has proposed a bill authorizing police to use “any means necessary” to “clear the roads” of “persons unlawfully obstructing vehicular traffic.”  

The “any means necessary” language, whether a conscious echo of Malcolm X’s incendiary words or not, is chilling in its implication that police can do anything up to and including killing protesters for the act of blocking traffic.

In Washington state, legislators proposed legislation reclassifying as a felony civil disobedience protests that are deemed “economic terrorism.” Republicans in Michigan introduced an anti-picketing law that would increase penalties against protestors and would make it easier for businesses to sue individual protesters for their actions. And in Iowa a Republican lawmaker has pledged to introduce legislation to crack down on highway protests.

All of these efforts, conservative and liberal alike, suggest a collective unmooring from the principles of individualism and individual rights that form the foundation of our Constitutional democracy.  That we live, increasingly, in a nation of majoritarian bubbles only heightens the risk.  The chance that someone living in deepest-blue Berkeley has the opportunity, much less the inclination, to meet and understand even a moderate Republican (much less a Yiannopolous) is vanishingly remote.  And in crimson North Dakota, Democrats (and, thus, protesters in that state of virtually uniform Republican rule) are about as common as palm trees.

Above this all is a President who appears to delight in fomenting just the kinds of tribal political divides that threaten individual liberties by stripping people of common sense, common decency and a common understanding of what it means to be American.  

Trump’s rhetoric isn’t helping matters.  Indeed, there can be little doubt that the tone set from the top–of total hostility to opposing viewpoints and a disrespect for even the idea of principled disagreement–has encouraged this collective Constitutional amnesia.  But Trump will certainly not be the only one to blame if we decide, as a nation, that it is better to stop speech we disagree with than to let it go forward and then, in the best American tradition, counter it with our own.

David Snyder, a lawyer and journalist, is executive director of the First Amendment Coalition. The views expressed here do not necessarily reflect the opinions of the FAC Board of Directors.

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