Category Archives: Freedom of Speech

By Jennifer Delton By Jennifer Delton August 22 at 6:00 AM

Jennifer Delton is the Douglas Family Chair in American culture, history, and literary and interdisciplinary studies at Skidmore College. She is the author of, most recently, 'Rethinking the 1950s: How Anticommunism and the Cold War Made America Liberal."

Heres the dilemma college presidents face in the fall: Either uphold free speech on campus and risk violent counterprotests, or ban conservative provocateurs and confirm the freedom of speech crisis on campuses. Either way their institutions legitimacy is undermined.

This impossible dilemma is no accident. It has been part of a strategy, deployed first by conservatives and perfected by the alt-right. The alt-right is a nebulous, still-developing political movement, but we know at least two things about it. One, its most prominent popularizers Stephen K. Bannon, Milo Yiannopoulos and Richard Spencer have all articulated that they seek to destroy liberal cultural hegemony, which they associate with a bipartisan, globalizing, multicultural, corporate elite, and which, they think, is perpetrated in the United States by the mainstream media and on college campuses.

The second thing we know about the alt-right is that its provocateurs seek to bait liberal institutions by weaponizing the concept of free speech, which is an issue that divides the liberal left. It is true that higher education has brought much of this on itself through the extreme policing of speech and tolerance of student protesters who shut down speakers with whom they disagree. But that doesnt diminish the extent to which the alt-right and conservatives are using free speech to attack and destroy colleges and universities, which have long promoted different variations of the internationalist, secular, cosmopolitan, multicultural liberalism that marks the thinking of educated elites of both parties.

As college presidents try to figure out whether the First Amendment protects conservatives right to create political spectacle and instigate violence, it might be useful to recall another time when American liberals were forced to sidestep First Amendment absolutism to combat a political foe: the 1940s, when New Deal liberals purged U.S. communists from American political life.

Thats right, New Deal liberals and unionists including President Harry S. Truman, Minnesota Sen. Hubert Humphrey, black labor leader A. Philip Randolph and Walter Reuther of the United Auto Workers were staunch anticommunists who effectively shut down the Communist Party USA (CPUSA), forcing communists out of unions, civil rights organizations, jobs and universities.

They did so because communists were a disruptive force that was baiting and dividing the liberal left. Communists were also in a party directed by Moscow just as the Cold War was commencing. Their presence in liberal organizations made liberals vulnerable to Republican and conservative attacks. So those liberals interested in political success (and in preserving the New Deal) drove them out of politics.

What about the First Amendment, you may ask? Well, this was a point of contention that likewise divided the liberal-left community. Liberals had historically supported freedom of speech and assembly; they saw themselves as champions of the First Amendment. To deny communists freedom of speech and assembly to run them out of politics on the basis of their ideas and political connections seemed like the height of hypocrisy. Communists constantly pointed this out, as did those liberals who rejected the anticommunist agenda.

So anticommunist liberals made a series of arguments that justified denying communists these rights on account of their disingenuous intentions and totalitarian ideology. Most famously, liberal activist Arthur Schlesinger Jr. argued that communists hid behind the First Amendment to attack liberal democracy, using it as a shield as they sought to destroy the democratic system that upheld those rights.

Schlesinger understood there werent enough communists in the United States to actually foment revolution. But there were enough to divide progressive forces and thus create an opportunity for conservative Republicans to take power and repeal the New Deal, which he believed would in turn destabilize American capitalism and possibly tilt the balance of international power to the Soviets. Liberals would be chumps to let a principled commitment to freedom of speech undercut the pragmatic goal of political survival, which was the only way to ensure progress in civil rights and social welfare.

Philosopher Sidney Hook hinged his argument about speech on the distinction between the free flow of ideas, which the First Amendment protected, and actions, which it did not. He said liberals had no problem with communists ideas, which they were free to expound upon and disseminate. The problem lay in their organized actions, which involved all sorts of stratagems, maneuvers, and illegal methods, evasions and subterfuges developed by Lenin to subvert democracy.

Historians remain divided about the pros and cons of American communism, but most agree that the party often operated in secret and that it was directed and funded by Moscow. Communists denied this, of course, but the partys activities were the basis of Hooks contention that the CPUSA was a conspiracy, and thus not protected by the First Amendment although its ideas were. Hook didnt think thatthe state should ban the Communist Party (which would be unconstitutional and ineffective), but that private citizens and institutions should shun and expose communists, denying them the opportunity to further their political agenda.

Subsequent liberals (and most of my professors) condemned these anticommunist liberals for opening the door to McCarthyism and Cold War militarism. But given our current political moment and the threat posed by the actions of alt-right provocateurs, Schlesingers and Hooks arguments may bear revisiting. Both worried that liberals commitment to the absoluteness of rights made them unable to confront an enemy that didnt share that commitment. Both understood that the CPUSA, like the alt-right, was engaged in a struggle to destroy the cultural and political legitimacy of western democratic liberalism. And both understood that First Amendment absolutism was a luxury that only a stable, peaceable society could afford. I cant help but think that even William F. Buckley would have agreed with this.

Historical analogies are always imperfect. Nonetheless, it is clear that western liberalism, as well as left-liberalism in the United States, is under attack from people who see the First Amendment as a political weapon and not a sacred principle. Quoting Voltaire is not going to preserve anyones liberties least of all those populations most vulnerable to vicious racist, misogynist and anti-Semitic attacks.

It was one thing to defend the American Nazi Partysright to march in Skokie, Ill. in 1977, when the liberal establishment and mainstream media were still intact and American Nazi Party wasamarginal fringe group. The groupwas offensive, but neither its actions nor its ideas posed a threat to the political or social order, which was stable. The situation is different today, with an erratic PresidentTrump in the White House, elites in disarray and white nationalism on the rise. In this situation, and against this foe, it may be worth remembering that our constitutional rights are not unchanging abstract principles, but, as Hook and Schlesinger argued, always evaluated in terms of their consequences for society at any given historical moment.

At the same time, however, colleges and universities need to recognize that their liberal critics of, say, diversity policies or Title IX excesses are not political foes and should not be subject to censorship or censure. One reason the right has been able to so effectively exploit free speech is because campuses have become places where the free exchange of ideas has been curbed by peer pressure, self-policing and a self-righteous call-out culture, as described by Jonathan Haidt, Jonathan Chait and Mark Lilla. Until university presidents offer real leadership inreconciling the liberal critique of identity politicswith a new generation of diverse students, faculty and staff for whom such politics representprogress, they will be unable to protect their institutions from conservative attacks.

CORRECTION: An earlier version of this article misidentified the group that marched in Skokie, Ill., in 1977. It was the American Nazi Party, not the Ku Klux Klan.

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When 'free speech' becomes a political weapon - Washington Post

Sixty-seven planned rallies in 36 states that were meant to attract members of the so-called alt-right and other racist groups are moving online after a free speech rally on Saturday in Boston attended by white supremacists was drowned out by demonstrators.

ACT for America is deeply saddened that in todays divisive climate, citizens cannot peacefully express their opinion without risk of physical harm from terror groups domestic and international, reads a statement from the anti-Islamic group behind the rallies, which were meant to begin September 9.

Instead, a Day of ACTion will be conducted through online and other media, ACT said, but it did not detail what shape that would take.

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A demonstrator holds a U.S. flag in front of white supremacy flags and banners as self-proclaimed white nationalists and members of the "alt-right" gather for what they called a Freedom of Speech rally at the Lincoln Memorial in Washington, D.C., June 25. Jim Bourg/Reuters

The group accuses extremist individuals and groups inspired by the Islamic State militant group (ISIS) as well as anti-fascists, neo-Nazis and the KKK of creating security issues at similar free speech events this month.

In recent weeks, extremist and radical organizations in the United States and abroad have overrun peaceful events in order to advance their own agendas, and in many cases, violence has been the result, the group said. Protests against neo-Nazis were held in Germany last week.

Tens of thousands of anti-racist demonstrators also marched in Boston Saturday, dwarfing the number of alt-right members who gathered to express their views in Boston Common. The alt-right label was coined by white nationalist Richard Spencer and acts as an umbrella term for white supremacists, conspiracy theorists and misogynists.

The counterprotest was largely peaceful and followed a white supremacist rally in Charlottesville, Virginia, that turned violent the week before. In Charlottesville, one counterprotester was killed and 19 others injured when police said a right-wing activist drove his car into a group of pedestrians. Anti-fascist groups in Charlottesville also pepper-sprayed and beat white supremacists.

Related: U.S. authorities consider shutting down hard-right rallies after Charlottesville

The ACT for America statement was first given to the hard-right website Breitbart. The sites executive chairman, former White House Chief Strategist Steve Bannon, has called the outlet a platform for the alt-right.

Two hate group watchdogs, the Southern Poverty Law Center (SPLC) and Anti-Defamation League (ADL), identify ACT for America as the largest anti-Muslim group in the U.S. ACT propagates the hateful conspiracy theory that Muslims are infiltrating U.S. institutions in order to impose Sharia law, according to the ADL.

In June, ACT organized simultaneous March Against Shariah events throughout the U.S. that attracted armed militia groups, white nationalists and other members of the alt-right, including the Blood and soil fascist group Vanguard America and white nationalists Identity Evropa.

Shariah law in Europe and North America refers mainly to an Islamic family law court system set up for religious adherents that can be used to mediate and settle disputes. Many hard-right Americans see the system as encroaching on the traditional European court systems jurisdiction. Since 2010, 15 anti-Sharia bills have been passed in various states. A total of 42 have been tabled across the U.S.

ACT for Americas membership is patriotic citizens whose only goal is to celebrate Americas values and peacefully express their views regarding national security, according to group, which claims to have 750,000 members.

In 2007, the groups founder,Brigitte Gabriel, saidat the Department of Defenses Joint Forces Staff College that any practicing Muslim who believes the word of the Koran to be the word of Allah...who goes to mosque and prays every Friday, who prays five times a daythis practicing Muslim, who believes in the teachings of the Koran, cannot be a loyal citizen of the United States. She has made a number of other anti-Islamic statements.

Despite these statements, ACT says that any organizations or individuals advocating violence or hatred towardanyone based on race, religion, or affiliation are not welcome at ACT for America events, or in the organization.

The groups online day of action is planned for September 9.

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Alt-Right 'America First' Rallies Move Online After Boston 'Free Speech' Protest Is Overrun - Newsweek

A police officer escorted a participant in Saturdays free speech rally away from the scene as a water bottle was headed in his direction.

If one line captured the essence of Saturdays Boston Common rally and counterprotest, it was a quote halfway through Mark Arsenaults Page 1 story in the Globe:

Excuse me, one man in the counterprotest innocently asked a Globe reporter. Where are the white supremacists?

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That was the day in a nutshell. Participants in the Boston Free Speech Rally had been demonized as a troupe of neo-Nazis prepared to reprise the horror that had erupted in Charlottesville. They turned out to be a couple dozen courteous people linked by little more than a commitment to surprise! free speech.

The small group on the Parkman Bandstand threatened no one. One of the rallys organizers, a 23-year-old libertarian named John Medlar, had insisted vigorously that its purpose was not to endorse white supremacy. The rally Im helping to organize is about promoting Free Speech as a COUNTER to political violence, he had posted on Facebook. There are NO WHITE SUPREMACISTS speaking at this rally.

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Indeed, nothing about the tiny rally seemed in any way connected with bigotry or hatred. One of the speakers was Shiva Ayyadurai, an immigrant from India who is seeking the Republican nomination in next years US Senate race. As Ayyadurai spoke, his supporters held signs proclaiming Black Lives Do Matter.

Call them Nazis, white supremacists or free speech advocates whatever label you prefer, they were the hunted and harassed Saturday on Boston Common.

But he and the others who gathered at the Parkman Bandstand had never stood a chance of competing with the rumor that neo-Nazis were coming to Boston. That toxic claim was irresponsibly fueled by Mayor Marty Walsh, who denounced the planned rally Boston does not want you here even though organizers were at pains to stress that they had no connection to Charlottesvilles racial agenda and intended to focus on the importance of free speech.

What happened on Saturday was both impressive and distressing.

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A massive counterprotest, 40,000 strong, showed up to denounce a nonexistent cohort of racists. Boston deployed hundreds of police officers, who did an admirable job of maintaining order. Some of the counterprotesters screamed, cursed, or acted like thugs at one point the Boston Police Department warned protesters to refrain from throwing urine, bottles, and other harmful projectiles but most behaved appropriately. Though a few dozen punks were arrested, nobody was seriously hurt.

But free speech took a beating.

The speakers on the Common bandstand were kept from being heard. They were blocked off with a 225-foot buffer zone, segregated beyond earshot. Police barred anyone from approaching to hear what the rally speakers had to say. Reporters were excluded, too.

Result? The free-speech rally took place in a virtual cone of silence. Participants spoke essentially to themselves for about 50 minutes, the Globe reported. If any of them said anything provocative, the massive crowd did not hear it.

Even some of the rallys own would-be attendees were kept from the bandstand. Yet when Police Commissioner Bill Evans was asked at a press conference Saturday afternoon whether it was right to treat them that way, he was unapologetic. You know what, he said, if they didnt get in, thats a good thing, because their message isnt what we want to hear.

No, Commissioner Evans. It was not a good thing that people with a right to speak were effectively silenced by the operations of the police. The ralliers did nothing wrong. They followed the citys rules. They absorbed the slanders flung at them by the mayor and others. They didnt try to shut their critics down, and they werent the ones hurling urine, bottles, and other harmful projectiles.

All they were guilty of was attempting to defend the importance of free speech. For that, they were unjustly smeared as Nazis and their own freedom of speech was mauled.

Boston was kept safe on Saturday. For that, city authorities deserve great credit and thanks. But in the course of preventing a riot, those authorities rode roughshod over the free-speech rights of a small, disfavored minority. That is never a good thing, whatever the police commissioner may think.

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A free-speech rally, minus the free speech - The Boston Globe

The First Amendment has been getting a workout lately, from white supremacist rallies and counter-protests to attempts to censor or block opposing viewpoints on college campuses.

The First Amendment is a broad guarantee of free and open discourse; its easier to list what isnt protected under the Bill of Rights than what is.

Unprotected speech includes obscenity, fighting words (those that inflict injury or are likely to incite an immediate breach of the peace), defamation (including libel and slander), child pornography, perjury, blackmail, incitement to imminent lawless action, true threats and solicitation to commit a crime. The nonprofit Newseum Institute notes that some experts also would add treason, if committed verbally, to that list.

Noticeably absent from the list is hate speech which the U.S. Supreme Court has repeatedly ruled is protected, no matter how unpopular or bigoted, and speech that others find offensive or rude.

The First Amendment puts a great deal of responsibility for protecting free speech in the hands of the American people, counting on them to understand its importance and cherish it.

But when there are neo-Nazis and white supremacists holding rallies and issuing hateful, bigoted comments, it can be difficult for people to understand that protection of this is just as important as protecting words of peace, tolerance and brotherhood. For if one of these can be silenced, so can the other.

In recent years, there has been a troubling number of well-intentioned people wanting to silence speech they found hurtful or hateful or, on a lesser level, just obnoxious.

Some object to far-right speakers on college campuses, some object to far-left demonstrators. Some Register-Guard readers have objected to conservative columnist Jonah Goldberg, others have said they would be willing to give up Goldberg if liberal columnist Paul Krugman also disappeared. (Editors note: We intend to continue publishing both.)

Banning, or censoring, other viewpoints is not the way to unite what seems to be an increasingly divided country. In the instances of true hate speech neo-Nazis, white supremacists and others of their ilk those who object have other options.

They, too, have the right to free speech, to stand up and peacefully protest. And they have the right to ignore hate groups: While their speech is protected, people do not have to provide these groups with a venue or an audience. Depriving hate groups of attention is to deprive them of oxygen, making them less newsworthy and less likely to garner attention.

As for speech and viewpoints that the hearer simply disagrees with, rather than attempting to silence or block it, a better option is to listen. Listen to the concerns, listen to the fears and frustration, listen to the hopes and the proposals. People of good will can have different views when it comes to the causes and cures for social and economic ills. But they also can find common ground in their concerns or experiences and that can be the start of bridging the divide between people. That is what free speech is meant to do.

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Freedom of speech is for all - The Register-Guard

Generally speaking, anyone can say anything online. But, lately, things have started to get complicated. Last week, after neo-Nazis and white supremacists descended on Charlottesville, the neo-Nazi blog the Daily Stormer disappeared from the Internet. GoDaddy, the registrar of the sites domain, had discontinued its service. The Daily Stormer switched its domain to Google, which promptly shut it down as well. The site is now back up, on the dark Web, with its publisher pleading victimhood on social media. (I am being unpersoned.) What happened to the Daily Stormer wasnt a violation of the First Amendmentprivate companies are allowed to stifle speechbut it enraged people on the right, many of whom were already deeply skeptical of the puppet masters in Silicon Valley. Before any of this happened, a pro-Trump activist named Jack Posobiec was organizing a multicity March on Google, calling the company an anti-free-speech monopoly. (Last week, Posobiec announced that the march had been postponed, citing threats from the alt-left.)

Jack Conte is not an alt-right activisthes a bald, bearded musician from San Franciscobut he, too, once resented the titans of Silicon Valley. A few years ago, Conte was trying to make a living on YouTube. His music videosfunk covers of pop songs, homemade robots playing percussion padsoften went viral. I made a video that took many, many hours and cost me thousands of dollars, Conte said. My fans loved it. It got more than a million views. And I made a hundred and fifty bucks from it. I realized, Clearly, there is a problem with how stuff on the Internetwhat we now call content, what used to be called artgets monetized. Conte co-founded his own tech company, Patreon, a Web site that allows artists and activists to get paid directly by fans and supporters. A creator posts a description of what she intends to makea comic strip, a podcastand patrons sign up to fund it, each chipping in a few dollars a month. Patreon takes a five-per-cent cut. The company now has about eighty employees and a hundred-and-fifty-million-dollar valuationbig enough that many Web denizens consider Conte a new kind of puppet master.

Last month, Lauren Southern, a right-wing activist and pundit who was earning a few thousand dollars a month on Patreon, received an e-mail from the companys Trust and Safety team. Here at Patreon we believe in freedom of speech, it read. When ideas cross into action, though, we sometimes must take a closer look. Southern, a videogenic Canadian in her early twenties, whose book was blurbed by Ann Coulter, was known for videos like White Privilege Is a Dangerous Myth. Her Patreon page now reads This page has been removed.

Southern had participated in an anti-immigration action in the Mediterranean Sea, in which a motorboat tried to prevent a ship from bringing refugees to Europe. In an apologetic YouTube video, Conte insisted that Southern had been banned not for her politics but for her risky behavior. I didnt expect to convince everyone, and thats O.K., he said.

Predictably, Southerns fans were not pleased. Youre an idiot and a beta cuck, one commented. Some called for lawsuits. Others linked to a copycat site called Hatreon. (Motto: A platform for creators, absent thought policing.) Southern set up her own site, patreonsucks.com. Big liberal silicon valley companies want me to become a friendly little vlogger that spouts all the right lines, she wrote. I wont let that happen. She made a YouTube video directing followers to her new site, adding, As for Patreon, you guys can suck my balls.

Then came Charlottesville. Jason Kessler, the organizer of the Unite the Right rally, had a Patreon page (three backers, generating thirty-three dollars a month). It was swiftly removed for violating Patreons rule against affiliations with known hate groups. Meanwhile, another Patreon user, the progressive activist Logan Smith, began sharing photos of the torch-wielding mob on his Twitter handle @YesYoureRacist. He urged people to help him identify the participants: Ill make them famous. Online vigilantes complied, and several marchers lost their jobs. A few people were incorrectly identified, causing nonparticipants to receive death threats. Doxingpublishing someones private information onlineis against Patreons rules. Smith claims that his activism wasnt doxing. If these people are so proud of their beliefs, then they shouldnt have a problem with their communities knowing their names, he said last week.

Patreon disagreed, and Smiths page was removed. It doesnt matter who the victim is, Conte said. It could be a convicted murderer. If someone is releasing private information that an individual doesnt want to be made public, then thats doxing. And we dont allow it. (One person tweeted at Patreon, He is identifying nazis and you are stopping him at the request of nazis .) Conte went on, Weve been getting it from all sidesof course. I get it. Taking away someones income is a hugely onerous thing, and we dont take it lightly. He sighed. Weve dealt with a huge range of stuff in the past few years, a wider variety than I ever would have imagined. But the fact that were talking about swastika flags right now? It just makes me sad.

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The Fight Over Free Speech Online - The New Yorker

The Left is mounting an all-out assault against the freedom of speech, and is using Charlottesville as its Reichstag Fire moment to try to crush all dissent.

Several days ago, I received an email that set in motion a chain of events leading to my website, Jihad Watch, being dropped from PayPal. After an immense public outcry, the Jihad Watch PayPal account was restored -- not that I ever intend to use it again. But this episode illustrates the Lefts determination to silence all of its foes rather than debate them, and these fascists wont rest until no one dares oppose their agenda.

The email that started this incident has ominous implications far beyond the incident itself. Far-Left journalist Lauren Kirchner sent similar emails to other counter-jihad sites as well -- here are her questions, along with the answers I sent her:

Yes, certainly I do. For years, Leftists and Muslim groups with numerous ties to Hamas and the Muslim Brotherhood have smeared as hate all attempts to speak honestly about the motivating ideology behind jihad terrorism.

In reality, it is not hateful, racist or extremist to oppose jihad terror, and the claim that it is [is] not only libelous but insidious: the intent has clearly been to intimidate people into thinking it wrong to oppose jihad terror, and it has worked, as illustrated by the neighbors of the San Bernardino jihad murderers, who saw suspicious activity at their home but didnt report them for fear of being racist.

2) We identified several tech companies on your website: PayPal, Amazon, Newsmax, and Revcontent. Can you confirm that you receive funds from your relationship with those tech companies? How would the loss of those funds affect your operations, and how would you be able to replace them?

The intent of your questions, and no doubt of your forthcoming article, will be to try to compel these sites to cut off any connection with us based on our opposition to jihad terror. Are you comfortable with what youre enabling?

Not only are you inhibiting honest analysis of the nature and magnitude of the jihad threat, but youre aiding the attempt to deny people a platform based on their political views. This could come back to bite you if your own views ever fall out of favor.

Have you ever lived in a totalitarian state, where the powerful determine the parameters of the public discourse and cut off all voice from the powerless? Do you really want to live in one now? You might find, once you get there, that it isnt as wonderful as you thought it would be.

3) Have you been shut down by other tech companies for being an alleged hate or extremist web site? Which companies?

No. This is a new thing.

First came the ridiculous claim that opposing jihad terror was hate, and now comes the other shoe dropping: the attempt to cut out the ground from under the feet of those who hate. You can only hope that you arent similarly defamed one day; perhaps if that does happen, you will realize (too late) why the freedom of speech is an indispensable element of a free society.

4) Many people opposed to sites like yours are currently pressuring tech companies to cease their relationships with them -- what is your view of this campaign? Why?

Nazis will be Nazis. Fascists will be fascists. Today they call themselves Antifa and the like, but theyre acting just like Hitlers Brownshirts did, when they shouted down and assaulted anti-Nazi speakers. Now the violent thugs work in a more genteel fashion: they just pull the Internet plug on those they hate. You, Lauren Kirchner, are aiding and abetting a quintessentially fascist enterprise. Authoritarianism in service of any cause leads to a slave society despite the best intentions of those who helped usher it in.

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Free Speech: The Left Moves In for the Kill - PJ Media

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.

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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.

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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.

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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.

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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.

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Is hate speech protected by American law? Quartz - Quartz