Monthly Archives: August 2017

The events in Charlottesville last weekend have provoked understandable fear and outrage. Potential sites for future alt-right rallies are on edge. Texas A&M University, the University of Florida and Michigan State University have all decided to cancel or deny prospective events by white nationalist Richard Spencer. All cited safety concerns. All raise serious First Amendment issues.

Even though weve been called free speech absolutistssometimes, but not always, as a complimentwe will not pretend that Spencers speaking cancellations make for a slam-dunk First Amendment lawsuit. Yes, hateful, bigoted and racist speech is fundamentally protected under the First Amendment, as it should be. However, if were honest about the law, we have to recognize that Spencer faces toughthough not insurmountablelegal challenges.

Story Continued Below

First, he is not a student at any of the aforementioned universities and was not invited to the campuses by students or faculty. He was seeking space on campus that is available to the general public to rent out. In at least some cases, courts have found that public colleges have a somewhat freer hand to regulate the speech of non-students on campus who are not invited by students or faculty.

Second, although a general, unsubstantiated fear of violence is not enough to justify cancelling an approved speaking event, recent violence in Charlottesville and the fact that one of the organizers of the Texas A&M rally used the promotional tagline TODAY CHARLOTTESVILLE TOMORROW TEXAS A&M make security concerns more concrete, at least in the short term. The more concrete the security concerns are, the easier it is to justify the cancellation or denials.

Third, as David Frum, Dahlia Lithwick and Mark Joseph Stern point out, judges might decide cases differently when protesters are liable to show up brandishing guns, as happened in Charlottesville. Bad facts make bad law, so the saying goes. The general legal standard now is that if a public college opens itself up to outside speakers, it cannot engage in viewpoint discrimination. Most cases of prior restraint censorship will fail in court under this standard. But in the immediate aftermath of the tragedy in Charlottesville, judges may look differently at these facts.

And that should trouble us: If a court decides in favor of the prior restraints, it could set a precedent that would do considerable harm to the free speech rights of speakers, students and faculty far beyond Spencer.

But what happens in a court of law is one thing. What happens in the court of public opinion is perhaps more important. As the famous jurist Learned Hand once said, Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.

And, unfortunately, there is evidence that freedom of speech needs a pacemaker.

If your social media newsfeed doesnt provide ample anecdotal evidence that free speech is suffering a public relations crisis, look to the polling: A recent Knight Foundation study found that fewer than 50 percent of high school students think that people should be free to say things that are offensive to others.

The New York Times opinion page, for its part, has run three columns since April questioning the value of free speech for all, the most recent imploring the ACLU to rethink free speechthe same ACLU that at the height of Nazism, Communism and Jim Crow in 1940 released a leaflet entitled, Why we defend civil liberty even for Nazis, Fascists and Communists. The ACLU of Virginia carried on this honorable tradition of viewpoint-neutral free speech defense in the days before the Charlottesville protests. However, the Wall Street Journal reported this week that the ACLU will no longer defend hate groups seeking to march with firearms.

And how is the birthplace of the 1960s free speech movement faring? In the wake of the riots that shut down alt-right provocateur Milo Yiannopoulos speech at the University of California, Berkeley on February 1, multiple students and alumni wrote that the violence and destruction of the Antifa protests were a form of self-defense against the violence of Yiannopoulos speech. Watching videos of the protest, it is fortunate nobody was killed.

Whats to account for this shift? One of our theories is that this generation of students comprises the children of students who went to college during the first great age of campus speech codes that spanned from the late 1980s through the early 90s. This is when colleges and universities first began writing over-broad and vague policies to regulate allegedly racist and sexist speech. Although that movement failed in the court of law, these codes have stubbornly persisted, and the view that freedom of speech is the last refuge of the three Bsthe bully, the bigot and the robber baronfound a home in classrooms.

When we speak on college campuses, our explanations of the critical role the First Amendment played in ensuring the success of the civil rights movement, the womens rights movement and the gay rights movement are often met with blank stares. At a speech at Brown University, in fact, a student laughed when Greg pointed out that Supreme Court Justice Thurgood Marshall was a steadfast defender of freedom of speechas if it were impossible for a black icon of the civil rights movement to be a free-speech champion.

However, we dont fault students for holding these opinions. The idea of free speech is an eternally radical and counterintuitive one that requires constant education about its principles. Censorship has been the rule for most of human history. True freedom of speech is a relatively recent phenomenon. It perhaps reached its high point in the United States in the second half of the 20th century.

Most Americans claim that they venerate free speech in principle. So do most world leaders. Even censorial dictators like Turkeys Recep Tayyip Erdogan sometimes feign support for it. Despite this, its common for people to have their exceptions in practice: their I believe in free speech, but responses. But even the free speech, but responses seem to be falling out of favor. In the last few yearsand especially after Charlottesvillewe have observed increasing squeamishness about free speech, and not just in practice; also in principle.

So how do we respond to the calls for censorship after Charlottesville?

For most of our careers, the charge what if the Nazis came to town? has been posed as a hypothetical retort to free speech defenses. (Godwins law extends to free speech debates, too.) But the hypothetical is no longer a hypothetical: In Charlottesville, neo-Nazis carried swastikas through the streets and revived the Hitler salute.

If you were to listen to scholars like Richard Delgado, the response should be to pass laws, to put people in jail, to do whatever it takes to stop the Nazi contagion from spreading. Its a popular argument in Europe and in legal scholarship, but not in American courts.

There are a few problems with this response that free speech advocates have long recognized. For one, it doesnt necessarily work; since the passage of Holocaust denial and anti-Semitism laws in Europe, rates of anti-Semitism remain higher than in the U.S., where no such laws exist. In fact, the Anti-Defamation League found that rates of anti-Semitism have gone down in America since it first began measuring anti-Semitic attitudes in 1964.

Whats more, in the 1920s and 30s, Nazis did go to jail for anti-Semitic expression, and when they were released, they were celebrated as martyrs. When Bavarian authorities banned speeches by Hitler in 1925, for example, the Nazis exploited it. As former ACLU Executive Director Aryeh Neier explains in his book Defending My Enemy, the Nazi party protested the ban by distributing a picture of Hitler gagged with the caption, One alone of 2,000 million people of the world is forbidden to speak in Germany. The ban backfired and became a publicity coup. It was soon lifted.

We cannot forget, too, that laws have to be enforced by people. In the 1920s and early 30s, such laws would have placed the power to censor in the hands of a population that voted in large numbers for Nazis. And after 1933, such laws would have placed that power to censor in the hands of Hitler himself. Consider how such power might be used by the politician you most distrust. Consider how it is currently being used by Vladimir Putin in Russia.

What does history suggest as the best course of action to win the benefits of an open society while stemming the tide of authoritarians of any stripe? It tells us to have a high tolerance for differing opinions, and no tolerance for political violence. What distinguishes liberal societies from illiberal ones is that liberal societies use words, not violence or censorship to settle disputes. As Neier, a Holocaust survivor, concluded in his book, The lesson of Germany in the 1920s is that a free society cannot be established and maintained if it will not act vigorously and forcefully to punish political violence.

But we should not be so myopic about the value of freedom of speech. It is not just a practical, peaceful alternative to violence. It does much more than that: It helps us understand many crucial, mundane and sometimes troubling truths. Simply put, it helps us understand what people actually thinknot even if it is troubling, but especially when it is troubling.

As Edward Luce points out in his excellent new short book The Retreat of Western Liberalism, there are real consequences to ignoring or wishing away the views that are held by real people, even if elites believe that those views are nasty or wrongheaded. Gay marriage champion and author Jonathan Rauch reminds us that in the same way that breaking a thermometer doesnt change the temperature, censoring ideas doesnt make them go awayit only makes us ignorant of their existence.

So what do we do about white supremacists? Draw a strong distinction between expression and violence: punish violence, but protect even speakers we find odious. Let them reveal themselves.

As Harvey Silverglate, a co-founder of our organization, the Foundation for Individual Rights in Education, says, its important to know who the Nazis are in the room.

Why?

Because we need to know not to turn our backs to them.

Greg Lukianoff, an attorney, is president and CEO of the Foundation for Individual Rights in Education.

Nico Perrino is director of communications for the Foundation for Individual Rights in Education and host of So to Speak: The Free Speech Podcast.

Follow this link:
Why Even Nazis Deserve Free Speech - POLITICO Magazine

Following the violence in Charlottesville, Internet businesses have been disassociating themselves from far-right political groups. PayPal decided to prohibit users from accepting donations to promote hate, violence and intolerance; 34 organizations were affected by the ban. Earlier, both GoDaddy and Google refused to host The Daily Stormer, a neo-Nazi site. Spotify announced that it would remove any streaming music that favors hatred or incites violence against race, religion, sexuality or the like. Dating site OkCupid deleted the profile of a white supremacist who was featured in a Vice TV segment about the Charlottesville, Va., rally, barring him for life.

Most Americans wont worry much about neo-Nazis losing access to the public forum we call the Internet. Their ideas are repugnant, and we did fight a war against their kind not that long ago. End of story?

Not really. Experts, such as Cloudflare CEO Matthew Prince, say that for technical reasons a small number of tech companies may soon largely determine what can and cannot be online. Some argue that Silicon Valley is abusing its monopoly power over the Internet to suppress free speech. These critics would have Congress regulate the companies as a natural monopoly in order to restore basic rights.

Is there truly such a monopoly over the Internet? After reading that Facebook employees were suppressing conservative articles, Andrew Torba created Gab, a social-networking service open to voices from the right. Gab isnt as popular as Facebook, but its existence does show that the dominant companies do not have a stranglehold on speech.

In any case, these decisions to deny service do not violate the freedom of speech. The First Amendment applies only to government actions. The man posting at @realdonaldtrump, arguably acting as a private citizen exempt from the First Amendment, may block comments critical of his posts. If the same man posts at @WhiteHouse, he is a government official and may not abridge the freedom of speech by blocking critics. PayPal and Google are private corporations, not the government. Moreover, in our nation businesses usually have no obligation to serve others if they do not wish to do so. That too is part of the free market.

Still, Americans in general and conservatives in particular have reason to suspect the tech companies might not be neutral toward content on the Internet. The James Damore case in which a Google engineer circulated a memo suggesting the tech giant hired and promoted based on gender and race indicates the leaders and employees of Google have strong leftwing political views. Indeed, Silicon Valley is known to lean to the left. Its not implausible to imagine that censorship of certain views might ensue.

What then can be done to protect free speech without the courts?

If [internet companies] use their power to exclude in an arbitrary and political way, the nation will be worse off and the companies may suffer and not just at the bottom line.

Markets will do part of the job. These companies are unlikely to deny service to mainstream political voices. After all, a person evicted from a service is no longer a paying customer, and their eviction might convince others to depart. Driving diversity critics out of Google would forego considerable revenue. Many people, not just extremists, have reasonable doubts about aspects of diversity policies.

Fear of the government will also constrain Internet censorship. Critics want to make Internet companies into public utilities because alt-right extremists have been denied service. Imagine what would happen if more legitimate voices were evicted from Google and the federal government responded by forcing the companies to behave better.

No one should want that. Law professor Danielle Citron has suggested several ways Internet companies can protect speech online.

First, affirm a commitment to American norms about free speech. The Internet giants operate globally, subjecting them to European regulations that offer less protection for free speech than does the United States. Europeans punish speech offensive to groups or religions (so-called hate speech) that we protect. American law draws the liberty line for speech at incitement to violence.

The companies mentioned promoting hate and violence as justification for evicting the alt-right. They seem to be following European norms. So far as the companies have discretion, they should affirm their support for the more liberal American norms. They should clearly define speech that will lead to being banned from a platform. That definition should focus on a close connection between problematic speech and violence and not on ambiguous terms like hate speech.

Second, companies should enact private due process for their regulation of speech. Clear definitions of the rules are essential in avoiding arbitrary and personal decisions about banning speech. The process of applying such rules should also be public. That could mean a formal public statement by the company of the rationale for banning some users of their social networks. It might also mean being public about how a company goes about identifying and prohibiting problematic speech. Such transparency about rules and methods will be open to public comment and inevitably criticism. It may also build trust among critics who fear arbitrary and politicized attacks on political speech.

Third, Internet companies should appoint an ombudsman to inform and report on their regulation of speech. They would act as a voice for free speech inside a company, a voice that should be dedicated to American norms on speech.

Internet companies are not the government. They can exclude speech from their domains without violating the First Amendment. But if they use their power to exclude in an arbitrary and political way, the nation will be worse off and the companies may suffer and not just at the bottom line.

John Samples is vice president and publisher at the Cato Institute.

Read more:
So, just how guaranteed is your freedom of speech online? - New York Post

Sentinel Editorial Board

From time to time at pivotal points in U.S. history, Americans have been challenged to reassess the meaning and the gravity of one of the greatest gifts in our democracy: our right to free speech.

Freedom of speech is the concept of the inherent human right to voice ones opinion freely and publicly with the exceptions of defamation (lying) and incitement (encouraging others to violence or panic) without fear of censorship or punishment.

As the First Amendment reads: Congress shall make no law [...] abridging the freedom of speech, or of the press[.]

But just because you can say something, doesnt mean you should or that there arent consequences for your words.

Every citizen is held responsible for the exercise of this right, meaning careless comments and unguarded remarks can land you in trouble if you do not exercise your rights responsibly. For example, you can be fired from your job over your speech.

The right to free speech only protects people from government interference. Private sector companies are a whole different story, and private companies are typically free to discipline employees for speech, such as comments posted on social media. (For public employees, the law is a bit more complex, although not all speech and action is protected.)

This is not to call for censorship, but it is to call for taking personal responsibility for minding our mouths.

And in a world where the online realm inserts distance, anonymity and speed into our social interactions, it makes it acceptable for many to dehumanize others. But the internet does not remove the person at the receiving end of your interaction. That person sitting in front of the screen, reading your words, is still very much real.

And they have the freedom of speech to respond, which could come in the form of a civil lawsuit if the subject of your speech believes you have defamed him or her published false and malicious comments.

The First Amendment exists to allow all of our voices to be heard, not to grant one voice the right to drown out all others, columnist Allison Press wrote in the Technician, the student newspaper of North Carolina State University in 2015. The First Amendment is not there to be used as an excuse for a poorly formulated opinion, an offhand sexist slur, or a rude retaliation. The First Amendment does not excuse you from basic respect, from critical thought, from kindness. Your First Amendment right should not be held higher than your sense of humanity.

Inflammatory speech anything short of inciting or producing imminent lawless action usually is followed by free-speech absolutists insistence on the right to offend, insult or humiliate. However, it has ramifications and repercussions that have the potential to reach deep and cost dearly.

Each of us has the ability to heap verbal fire on the tinder.

Freedom of speech does not mean you get to say whatever you want without consequences. It simply means the government can't stop you from saying it. It also means others get to say what they think about your words something to consider beforehand.

Likewise, freedom of speech does not equate to access to platform, meaning we dont have a fundamental right to have our words published by a private institution, say a newspaper. You can shout your words on the street corner, start up a blog, launch your own publication, fire off on your Facebook page, but you cant compel or force another person or business to publish your comments.

If there were such a rule, it most certainly would abridge the rights of others (see First Amendment definition above).

Its not an easy concept to navigate when we live in a world where we can have a thought and have it composed and published in less time than it takes to brew a K-cup.

Being responsible is hard, hard work, writer and playwright Carla Seaquist wrote in the Huffington Post in 2015. The reptilian exists in all of us, in responsible people, too, but its our responsibility to subdue that beast the struggle of civilization and its discontents and speak and act in ways that, for the greater good, enhance human dignity.

Perhaps thats something weve lost somewhere along the way remembering that were human and that our words wield immense power. And with great power comes great responsibility.

View original post here:
Our View: With freedom of speech comes great responsibility - HollandSentinel.com

The denial of first amendment rightsled to the political violence that we saw yesterday. That was how Jason Kessler, who organized last weekends far-right rally in Charlottesville, Virginia, explained the actions of an extremist who rammed his car into a crowd of counter-protesters, killing one of them. Like many on the far right, Kessler was claiming that displays of hate needed to be protected as free speechor else.

The US constitutions first amendment protects free speech much more strongly than in most democraciesa German-style law against holocaust denial would never stand in the US, for exampleand Americans support the right to say offensive things more strongly than other nations, a Pew survey found last year. But for a long time, free speech was a core concern of the left in America, not the right.

When the National Review [a leading conservative magazine] was first published in the 1950s, the vast majority of articles addressing free speech and the first amendment were critical of free expression and its proponents, says Wayne Batchis, a professor at the University of Delaware and author of The Rights First Amendment: The Politics of Free Speech & the Return of Conservative Libertarianism. Today, review of its contents reveals the precise opposite.

What prompted the shift, Batchis says, was the rise of a concept that quickly became a favorite target of the right: political correctness. As Moira Weigel wrote in The Guardian last year, the concept rose to fame in the late 1980s. After existing in leftist circles as a humorous label for excessive liberal orthodoxy, it was co-opted by the right and framed as a form of limitation of free speech.

In 1990, New York Times reporter Richard Bernstein (paywall) used political correctness to refer to what he perceived as a growing intolerance on university campuses for views that diverged from mainstream liberalism. In a span of only a few months, stories about political correctness (some even deeming it a form of fascism) became commonplace in columns and on magazine covers. Before the 1990s, Weigel reports, the term was hardly ever used in the media; in 1992, it was used 6,000 times.

The idea became a centerpiece of right-wing theory, eventually leading to the popularity of the Tea Party and the election of a president, Donald Trump, who made the shunning of political correctness a political trademark.

But fighting political correctness wasnt the only thing that encouraged conservatives to embrace free speech. Money was also an incentive. Over the past decade the party has increasingly opposed any form of campaign-finance regulation, arguing that political donations are a form of free speech. Its reward came in the 2010 Supreme Court decision Citizens United, which allowed companies and trade unions to give unlimited donations to political causes. Liberals commonly oppose this view on the grounds, Batchis says, that spending money should not be treated as a form of speech.

In the event, both Republicans and Democrats have benefited from that ruling. Indeed, in last years election, Hillary Clinton raised $218 million from super PACS, the fundraising organizations that sprang up in the wake of Citizens Unitednearly three times as much as Donald Trump. During the primaries, though, the candidates for the Republican nomination collectively raised close to $400 million (paywall) from super PACs.

Conservatives have supported freedom of speech more consistently than liberals, even when its speech that goes against their views, according to Batchis. My research does suggest that even on hot-button issues like patriotism and traditional morality, many on the right have moved in a more speech-protective direction, he says. By contrast, progressives have been more likely to advocate constraints, particularly on speech that was seen as harmful to racial minorities and women, he says.

Still, there are exceptions to this rule on both sides. Many liberals still hold to the ACLU-style civil libertarian tradition even in the face of hate speech, says Batchis, while moralistic conservatives have advocated limitations on free speech such a ban on flag burning.

In the wake of Charlottesville, the California branch of the American Civil Liberties Union declared that the First Amendment does not protect people who incite or engage in violence. If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in protected free speech. And indeed, direct threats arent protected (pdf, pp. 3-4) by the first amendment. But to count as a threat, speech has to incite imminent lawless action, in the words of a 1969 Supreme Court ruling; merely advocating violence is allowed. That is why neo-Nazis are allowed to march, and to cast themselves as free-speech champions.

Excerpt from:
Is hate speech protected by American law? Quartz - Quartz