Daily Archives: July 18, 2017

James Madison, prime drafter of the Bill of Rights, would be appalled to find marauding mobs curbing speakers, but not surprised. This and much more that illuminates todays struggle over freedom of speech is the subject of a compact volume, The Soul of the First Amendment, by legendary First Amendment constitutional scholar Floyd Abrams.

Abrams traces the two-century history of the First Amendment, from its creation in the Bill of Rights, ratified in 1791, three years after ratification of the Constitution (which took nearly a year after its publication by the Framers of Philadelphia), The Framers were disinclined to adopt a Bill of Rights, whose protections they regarded as implicit in the text of the Constitution. Framer Roger Sherman of Connecticut said of bills of rights: No bill of rights ever yet bound the supreme power longer than longer than the honey moon [sic]of a newly married couple. Fortunately, Mr. Madison prevailed over such skepticism.

Abrams cites the mid-century historian Clinton Rossiter, who described the 1787 Constitution as plain to the point of severity, frugal to the point of austerity, laconic to the point of aphorism. Madison stated that the great object of bills of rights is to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode. Madison believed courts would act as an impenetrable barrier to infringement of speech. But speech is now under a sustained assault not seen since the 1798 Sedition Act saw more than 20 newspaper editors jailed by President John Adams.

Because Abrams covers only the First Amendment, he ignores the Courts seminal Bill of Rights case prior to 1925, the year the Supreme Court began to selectively incorporate clauses, thus applying them to the States. Until then the case that defined its ambit was Barron v. Baltimore (1833), in which Chief Justice John Marshall, our most influential Justice, authored the Courts opinion holding that the Bill of Rights limited only the powers of the federal government. Indeed, it was not until 1939 (NOT a misprint) that the final trio of the original 13 colonies Massachusetts (Mar. 2), Georgia (Mar. 18) and Connecticut (Apr. 19) ratified the document many consider our true fundamental charter. This view is widely held because the Constitutions text focuses on definition and distribution of powers, many arcane to non-lawyers; the first ten amendments collectively called the Bill of Rights is a charter that mostly defines substantive constitutional rights, to many our secular Ten Commandments.

Abrams offers six chapters: (1) the history of free speech and the First Amendment over the past 226 years; (2) comparison of free speech protection between America and the other Western democracies; (3) how English free speech law was explicitly rejected by the Supreme Court in a landmark decision; (4) comparison of relative protection of a right to be forgotten; (5) comparison of regulation of spending in political campaigns; (6) free speech issues that evade legislative and jurisprudential solution.

Abrams notes two emerging, divergent views on free speech protections. Justice Stephen Breyer wrote in his dissent as to free speech protection in the landmark 2010 Citizens United decision: The First Amendment advances not only the individuals right to engage in political speech, but also the publics interest in preserving democratic order in which collective speech matters. (Italics in original.) As rebuttal, Abrams cited Chief Justice Roberts in a later election free speech case, that the will of the majority plainly can include laws that restrict free speech. The whole point of the First Amendment is to afford individuals protection against such infringements. The case for new curbs on speech was carried further by former Harvard Law School Dean Kathleen Sullivan, who identified opposing visions of free speech: one protects only such speech as is perceived to advance political equality by protecting designated rights holders; the other is negative, and bars the government from restricting speech, with a few very narrow exceptions. Sullivan supports the former, while Abrams supports the latter. Abrams follows the Framers; Sullivan, postmodern jurisprudential values.

The dominant limitation of speech from the founding into the 1920s was censorship. Only with the jurisprudence of Justices Oliver Wendell Holmes and Louis D. Brandeis did protection of free speech, however unpopular, came to the fore. It was only in 1925 that the Frist Amendment was applied to the states; and not until 1965 NOT a misprint did the Supreme Court rely upon the First Amendment to strike down a federal statute.

Abrams is very effective in contrasting the great degree to which speech remains protected in America, versus its creeping strangulation in Europe. Prime culprits are rulings by national courts and administrative tribunals, plus pan-European international bodies. He cites several recent decisions that would not have been made on our side of the Pond. Speakers have been convicted for such offenses as calling for an end to Muslim immigration (Britain, Belgium); for putting ones country first (Britain and Belgium again); and attacking Christianity (Poland). But it is criticism of Islam that is most ferociously punished today. Dutch parliamentarian and unsuccessful candidate for prime minister Geert Wilders was convicted for giving speeches calling for an end to Islamicization in Holland. This is the steep price of multicultural political correctness.

Another landmark protection for American speakers and writers came with passage of laws preventing enforcement against Americans of libel judgments issued by European courts; militant Islamist plaintiffs had targeted authors whose works sold only a few copies overseas, suing in England rather than in the U.S., to take advantage of European speech laws. Abrams counts 23 nations in the European Union that have criminal libel laws, with 20 of them including imprisonment penalties; several have laws calling for greater punishment for libeling public officials.

In one major area even a free speech libertarian like Abrams draws at least a partial line: national security. He recounts that during the 1971 Pentagon Papers case (in which a massive archive of Vietnam war decision-making was published by the New York Times and the Washington Post) the Times withheld certain classified details. Earlier, in the 1950s the Times learned that the CIA was conducting secret reconnaissance overflights of the Soviet Union, and elected not to publish. Rampant disclosure of sensitive classified information is now close to a journalistic norm. While such may prevent abuses, which undeniably exist, they can also damage national security sources and methods regarding intelligence collection, for example.

Perhaps most dangerous of all is the growing trend towards suppressing speech by resort to mass violence. Violence is contagious, if unchecked. Democrats were silent when Madonna said on Inauguration Day that she imagined the White House exploding; when a rapper posted a video imagining President Trump being assassinated; and some even defended the profanation of a Julius Caesar Shakespeare in the Park production in which Caesar dressed as Trump was stabbed to death. Such attitudes spawn violence not only against the right. California Democrats, much to their surprise, have received death threats from members of their hardcore leftist base, warning them not to cede to President Trump on health care.

Many remember vividly the tragic and terrifying events leading up to November 22, 1963, when President Kennedy was gunned down. For at least a year before that ghastly Friday of November 22, right-wing extremists had openly preached violence against the president. The contagion had spread, but a radical leftist was the assassin. Violent and hateful rhetoric, far from being tamped down, escalated though the massively destructive race riots of 1964-1968. The wave crested with the spring 1968 murders of Martin Luther King by a white racist, and of Senator Robert Kennedy by a Palestinian terrorist.

In what Abrams terms an historical irony the protections of the Bill of Rights have most often been invoked on behalf of leftist dissenters, yet it is the hardcore left that today aggressively moves to curtail such protections for speakers on the right. It was said of the French Revolution that in the end it, like the Roman deity Saturn, ultimately devoured its own children. Todays myriad leftist practitioners and the few of their ilk on the right of intellectual thuggee might do well to ponder this.

The death of free speech would mark the demise of the American republic, tossing the Constitution into historys ash heap. It would be a terrifying triumph for totalitarians everywhere. Either we let speech run free, or we let the sensitivities of listeners (and readers) delimit what we may lawfully say. To prefer the latter is to empower most those who will most vociferously impose their sensitivities to silence others. They will always be the most extreme among us. And then we will have the least freedom of speech when we need most the broadest freedom to speak.

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Free Speech 2017 At War With the Framers of 1787 - American Spectator

MSU graduate Alex Bissell protests convervative columnist George Wills commencement address in 2014.(Photo: Max Ortiz / The Detroit News)Buy Photo

A pair of bills introduced in the Legislature that seek the suspension or expulsion of outspoken students are causing a stir at Michigans universities.

Critics say the proposed measures could hinder student activism. However, the main sponsor, state Sen. Patrick Colbeck, R-Canton Township, says the Campus Free Speech Act ensures invited campus speakers have their voices heard.

It makes sure they arent able to shout down the speaker, he said. Ideally, I think it would be nice to have engagement in debate if they are willing to have a civil debate on the topic. ... If that doesnt happen, they could hold their own forum.

The legislation would apply to Michigans 15 public universities and 28 community colleges. Institutions would be required to suspend for one year or expel students who have twice been found responsible for infringing upon the expressive rights of others.

The measures also would eliminate free speech zones that designate where students can engage in expressive activity on campus.

Opponents say the proposals would infringe on free speech, not protect it.

This is a very tricky situation, said Vikrant Garg, 21, a graduate student studying public health at the University of Michigan. What this does is criminalize people for expressing their freedom of speech.

Garg, a co-founder of Students4justice, a coalition for students of color, said the legislation could drive away any kind of dissent.

Theres so many applications of this bill, its so far reaching it could apply to almost everybody, he said. Thats what makes it even more dangerous.

Dan Hurley, CEO of the Michigan Association of State Universities, said the measures are intrusive and unnecessary.

Its a solution in search of a problem, Hurley said. The freedom of speech and expression are not an issue at Michigans post-secondary institutions. There have been some anecdotal incidents that youve probably read about that proponents would refer to. These are often incidents that are intentionally set up by individuals who are not students, not affiliated with the university.

Fostering discussion

Colbeck pointed to the cancellation earlier this year of a planned speech by conservative commentator Ann Coulter at the University of California at Berkeley. University officials said threats of violence made it impossible to guarantee security at the event.

A Philadelphia-based group called the Foundation for Individual Rights in Education, or FIRE, has found that Michigans public universities already have speech code policies that substantially restrict freedom of speech or have the ability to result in restrictions on protected expression because of their vague wording or for other reasons. The group annually rates the speech codes for the 400 of the nations largest universities and colleges.

FIRE found problems with protecting speech at all 15 Michigan public universities. Six universities, including the University of Michigan in Ann Arbor and its Dearborn and Flint campuses as well as Wayne State, had at least one policy that substantially restricts the freedom of speech, according to FIRE.

The other nine universities, including Michigan State and Oakland universities, had policies that restricted a more limited amount of free speech or whose vague wording could easily be used to restrict protected expression, the nonprofit said.

Grant Strobl, a 21-year-old international studies and political science major at UM, supports the legislation, saying it would require universities to remove protesters who interfere with events.

Its something that needs to be addressed not only in Michigan, but across the country, said Strobl, chairman of Young Americans for Freedom, a campus conservative group. Its not a perfect bill. Im sure there will be changes. ... I think its a step in the right direction.

He concluded: Its unfortunate that some students have the mentality that if they dont agree with certain speech, they can shout down the speaker and silence them.

As an example, Strobl said he saw hundreds of shouting protesters stop a debate last September at UM about whether the Black Lives Matter movement harms race relations. The event was hosted by Michigan Political Union, an independent student organization.

I feel like a lot of what is important in the democracy was lost that day, he said. We werent able to have a discussion on relevant political issues. Theres no better place to do that than the university.

The legislation in Michigan follows action by Republican lawmakers in several other states to crack down on protesters who disrupt speakers at post-secondary institutions.

In Wisconsin, for example, lawmakers are weighing a bill that would penalize protesters who disrupt speakers. The issue is now before the state Senate.

UMs student newspaper, The Michigan Daily, wrote an editorial last month opposing Colbecks legislation. Officials at some state universities also have expressed reservations.

Targeted limits

Michigan State University spokesman Jason Cody said that while the school has not taken an official position on the legislation, officials are concerned about the bills and share the some of the objections raised by MASU.

Here at MSU, we encourage our students and faculty members to bring in speakers and events, regardless if they are deemed controversial by some, Cody said. By the same token, we encourage our campus community to make their viewpoints known on issues they are passionate about. In all of that, though, we ask both sides of any issue to be respectful and follow MSU ordinances.

Oakland University officials say campus policy has always protected the rights of student groups and outside organizations that gather in a peaceful manner.

Our student affairs office works hand in hand with the Oakland University Police Departments chief of police and group leaders to ensure access and safety in organizing such events, said Nancy Schmitz, assistant vice president for student affairs and dean of students. In addition, we always comply with all federal and state laws on the matter and will follow developments with this latest legislation being proposed.

Free speech expert Gregory Magarian, a law professor at Washington University in St. Louis, said he doesnt mind the parts of the bills that reiterate the values of the First Amendment. However, he considers certain areas problematic.

Why single out protests and demonstrations? he said. If I recall correctly, those terms arent even defined in the statute. So this bill, which is supposed to be a free-speech bill, is putting a particular kind of limit on certain kinds of free speech, so-called protests and demonstrations.

Magarian said the legislation could be interpreted as banning all forms of protest.

The effect of that passage would seem to be that a protest or demonstration can be shut down if it interferes with any other kind of expressive activity, he said. I dont know of any kind of protest that doesnt interfere with other kinds of expressive activity.

Magarian said the bills mandatory penalties of a one-year suspension or expulsion for second-time offenders create a conflict for universities. He said hes inclined to think its better for universities to figure the issue out themselves.

One thing that might backfire about the provision is that its a pretty severe sanction, he said. The mandate of that sanction might well encourage universities in disciplinary proceedings to go easier on disruptors than they would if they had less severe penalties to dish out. ... That would cut against what this legislation is trying to do.

cwilliams@detroitnews.com

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Campus free speech bills: Restrict or protect rights? - The Detroit News

Writing in the New York Times Sunday Review, Professor Lisa Barrett of Northeastern University posed a question this weekend:

"When is speech violence?"

Barrett, who specializes in psychology, tries to answer the question with two key points.

First, "Offensiveness is not bad for your body and brain. ... When you're forced to engage a position you strongly disagree with, you learn something about the other perspective as well as your own. The process feels unpleasant, but it's a good kind of stress temporary and not harmful to your body and you reap the longer-term benefits of learning."

No problem there. Stress is something we can internalize and compensate for.

But then Barrett warns against "long stretches of simmering stress. If you spend a lot of time in a harsh environment worrying about your safety, that's the kind of stress that brings on illness and remodels your brain." What kind of stress is Barrett talking about?

Milo Yiannopoulos.

The professor explains that "it's reasonable, scientifically speaking, not to allow a provocateur and hatemonger like Milo Yiannopoulos to speak at your school. He is part of something noxious, a campaign of abuse. There is nothing to be gained from debating him, for debate is not what he is offering."

Conversely, Barrett says, Charles Murray is worthy of our ears because he offers meaningful debate.

In this juxtaposition of Milo and Murray, Barrett wants us to regard her argument as nuanced and intellectual.

We should not do so.

After all, there's a moral and intellectual rot at play here. While Barrett might deride Yiannopoulos as a "hatemonger" who has no interest in the exchange of ideas, his supporters clearly believe the opposite. Whether defending Donald Trump or challenging college campuses to allow controversial speakers, to them, Yiannopoulos does serve social debate.

And that speaks to the broader issue here.

At its most basic level, Barrett's argument is neither intelligent nor constructive. It is simply hyper-arrogant. The professor believes her viewpoint of stress and speakers should be a guide for all society.

The opposite is true. Indeed, Barrett is exactly why the Constitution grants such latitude to the conduct of free speech. If not, a speaker's appeal or discomfort will be viewed subjectively by each individual. The Constitution represents the truth that the more individual viewpoints exchanged, the more opportunity for worthwhile social discourse.

Barrett concludes with a call to action "we must also halt speech that bullies and torments. From the perspective of our brain cells, the latter is literally a form of violence."

Well, from the prospective of my brain cells, Barrett's argument is a form of violence. Not because it threatens me, but because its arrogant idiocy causes me painful stress.

Yet unlike Barrett, I believe freedom of speech is too important to be subjugated to my misplaced emotions.

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The latest idiotic attack on free speech: Opinions as violence - Washington Examiner