Laws against so-called price gouging — that is, price spikes during emergencies — violate our natural right to engage in voluntary exchange at mutually acceptable terms. As economics has long taught, price ceilings that defy market forces make the affected goods vanish from the market. Instead of a product being available at a price more-than-X, it is instead unavailable at a price less-than-X. Small comfort for the consumer. (Try to find masks and hand sanitizer on ebay or at the supermarket.)
Here’s another way to look at those laws: they violate freedom of speech (expression) and hence the First Amendment. Civil libertarians should be up in arms.
How can those laws violate the First Amendment? It is rather simple. The market’s price system is a communications process, a means of expression. In the market, people’s demonstrated preferences with respect to scarce resources are translated into highly usable information in the form of prices. Typically, when the quantity demanded for something rises, so does the price tend to rise. (Other things equal, as the economists say.) And vice versa. Adam Smith explained this beautifully in The Wealth of Nations. (See my article “The Market Is a Beautiful Thing.”) Through the price system consumers (without realizing it) tell producers what to produce and in what quantity. And producers use it to tell us when we need to economize (that is, buy the product only for our subjectively most important purposes, leaving some for others). This is important because we live in a world of scarcity. To produce more of good A, we might need to produce less of good B. If we want the market to be sensitive to consumers’ priorities, we’ll want the price system to be free of political and bureaucratic molestation. It’s as simple as that.
It follows, then, that if price controls — such as law against so-called gouging — are enforced, our voices are muffled if not silenced. That violates our freedom of expression and thus the First Amendment. When the price of hand sanitizer is bid up during a pandemic, the higher price is like a broadcast summoning producers to bring more product to the market. Laws against price spikes are like the gagging of consumers. It’s true that empty shelves are also a form of communication, but unfortunately, price controls also remove the incentive for people to produce more of the goods that are suddenly in short supply. Prices are the irreplaceable tool of economic calculation, as Ludwig von Mises spelled out a century ago in his case against central planning.
No good comes from stifling the market — that is, from interfering with peaceful cooperation.
Anyone trying to shut down free speech knows that their ideology is a lie so they must prevent you from exposing that fact. I have no problem listening to someone else’s opinion, especially if I know it’s dead wrong. Knowing that my ideology is moral and non-coercive helps immensely. Free speech has been under attack since the beginning of time by people in power, those who seek it, or by those who just want to control you and your thoughts. It has nothing to do with words on a piece of paper; you are born with the ability to say what you want. The only time an argument could be made that your speech is “damaging” is if you are directing an individual, or group of individuals, to do harm against another’s person or property. Even then the argument could be made that if the people choosing to follow the orders are doing so voluntarily you still could be without blame. When you’re having a conversation with someone about free speech and they say, for example, “hate speech has no right to be spoken and is not free speech,” what do you say? How much do your opinions and beliefs mean to you? If someone says punch all Nazis AND anyone who promotes free speech, how do you address that?
An argument that eventually comes up is the collective stupidity of masses of people. That, if we allow those who are good communicators free reign to preach “wrong think” to multiples of malleable idiots, we could have another Mao, Stalin or Hitler pop up. How is that any different than the system now? Politicians have traded the wacky uniforms of the aforementioned dictators for “respectable” suits and a language of inclusivity. While that may appear to be only fair, it in fact riles up a small minority against the rest who are going about their lives. Where in the past rulers sought to mobilize the larger segment of the population against a minority who they made out to be villains (Jews in Germany, gypsies anywhere in Europe, Native Americans), they now give political power to an alleged oppressed few to demonize huge swaths of the population (“anyone who supports Trump is a white supremacist,” or a “Russian-sympathizer,” effectively putting half of the country in their cross-hairs). And their parrots in the corporate press play cheerleader.
A Smaller Example
One place the mass of wannabe dictators tries to shut down libertarians is when it comes to “private business.” So, how do they employ this tactic?
Libertarians believe in unfettered markets which means they don’t want a government or any authority with a monopoly on force and law to be able to make rules or regulations that they get to dictate and change at will. The market will always come up with its own rules that will undoubtedly pave the way for progress and innovation. But that doesn’t mean that liberty-motivated people won’t be able to look at the way a company is doing business and criticize them or flat out call them a fraud. That’s just free speech which also has its own checks and balances in a free market. When someone engages in the argument that because Company A is private, therefore you can’t criticize them for, say, firing an employee because they wrote a memo a minority of people found offensive, they are purposefully being dishonest or just plain stupid. A little prodding and it should be evident which.
Imagine this argument in practice. Someone of the libertarian persuasion shops at Auto Shop A and is sold a defective tire that has a blowout after 50 miles. It happened on the highway while travelling at 75 MPH causing their vehicle to veer left sharply almost taking out 2 other cars in the process. Say the consumer goes back to business, informs them of the incident, and the shop-owner says, “Sorry, all sales are final. Neither we, nor the manufacturer are liable to replace or refund tires once they leave the shop.” Granted, the business has every right to have this policy. But if that person took to social media to warn people against shopping at this business citing his experience, some who would wish to play “gotcha” on free speech might inevitably say, “You support unfettered free markets bro, you can’t criticize them for the way they run a private business.” All the while knowing that if it happened to them, they would have a conniption and be spewing venom about how “the free market has failed them.” Of course the libertarian is warranted in warning other people of what he’s experienced. But there are still wannabe-dictators out there who would rather see people crash and die than admit their desire to limit speech is lunacy.
Speech is all about ideas and anyone seeking to limit them is in a very real sense seeking to control your mind. If you’ve ever had the thought, “I can’t say that out of fear of how it will be perceived and the consequences I might face,” it is a prime example of this technique. We’ve even seen people flying the “Libertarian” banner employing these tactics; especially in the “Age of Trump.” It’s sad that many are compelled to not speak their minds or share ideas that may benefit others out of fear that a minority may demonize them. It’s even sadder to see people “promoting” an ideology of liberty joining forces with them.
Pete invited Resa Willis to come on the show. Resa gained international fame a few years ago when, as a teacher at a school in Texas, an anonymous source informed the school that she had appeared in pornographic 20 years earlier. She was fired and forced to start over. Resa tells that story, how she got into porn and about her activism within the Libertarian Party.
If a member of the Federal Communications Commission gets her way, commercials for e-cigarettes (vaping products) would be banned from radio and television. A ban would not only violate freedom, specifically the freedom speech that is supposedly protected by the First Amendment, it would also harm cigarette smokers by reducing information about a substantially safer alternative to cigarettes. (E-cigs may contain nicotine but not tobacco. Rather than burning leaves for inhalation, e-cigs a vaporize a flavored liquid.)
What grounds does Commissioner Jessica Rosenworcel cite? Public health, of course.
Read about it here. Rosenworcel makes her case here.
It’s exactly as it says. I was invited to speak to the “Politically Incorrect Club” at the University of North Georgia in November 2017. A few days before I was scheduled to speak, I received an email saying my speech had been canceled. Here’s the story with Vincent, the gentleman who initially recommended me.
Pete welcomes the president of the Mises Institute, Jeff Deist. Jeff returns to the show to talk about free speech issues, a challenge to Pete on his social media posts and, of course, the enemy that is the Federal Reserve.
If one takes the anarcho-libertarian concept of private property seriously, then there is no ‘freedom of speech’ in any fundamental sense. Rather, the only genuine rights are private property rights.1 Owners of private property may allow or forbid whatever speech they so choose on their property. On the other hand, the degree to which free expression of ideas is valued by individuals is a matter of culture. Failure to distinguish between property rights and the value of free expression of ideas results in nationwide confusion on the issue of free speech. This is manifest in the examples of universities and online platforms. To the degree that these institutions are private—here I must exclude public schools—they may allow or forbid any ideas to be discussed that they so choose. The market demand determines which speech policy will outcompete its competitive variants. This market demand is the contemporary cultural value of free speech.
Because I will take private property rights as given (an argument for another essay), I hereby focus on the cultural value of free speech, and why it is a moral good for college campuses to uphold.
The most fundamental reason for valuing a free exchange of ideas is that one cannot know a priori which ideas are correct. The only path by which we discover Truth is by rational criticism. I shall call this assertion ‘Truth-by-argument.’ In fact, rational criticism is comprised of numerous methods, which are themselves cognitive tools that Civilization has continued to create and refine over centuries. For example, science was once considered to be inductive (and is still, by many).2 However, better arguments have since been presented, and many now rightly regard science as a series of conjectures and refutations.3 So, even the methods by which we debate and judge claims about Reality are ever-evolving. Scientists Giordano Bruno and Galileo Galilei were pressured by the Catholic Church to renounce their then-heretical ideas. One of the first proponents of Truth-by-argument, Socrates, was sentenced to death for, among other things, impiety and corrupting the minds of Athens’ youth. Whether any of these three precursors were correct is besides the point. In all cases, Truth-by-argument was resisted with its only alternative—violence.
To forbid some particular ideas from being heard is subtly contradictory. Whether such a stricture on ideas is by fiat or cultural norms, Truth-by-argument is supplanted by authority. In the case of a fiat—say, a rule determined by a university bureaucracy—the implication is that he who erects the law knows better than the subjects of the law. But how is such an assertion justified? As soon as the lawmaker begins to defend his fiat, he is necessarily engaging in Truth-by-argument, and so the fiat refutes itself! The cultural norm equivalent implies that only bad, unintelligent, or ignorant people would dare think such things. Again, how do we know this to be the case? The same paradox emerges. In either case, colleges would do well to cut out the middle man of authority and allow the free exchange of ideas.
An (often unconsidered) consequence of the prohibition of ideas is that it weakens, rather than strengthens, students. Proponents of the restriction of platforms from holding ‘toxic’ ideas (an impressive semantic trick, to confuse verbal expression with physical harm) claim that to give air to such ideas is to validate them. But they rarely consider the costs of forcing these ideas into the shadows, which are twofold. Firstly, the would-be audience of the ‘toxic’ ideas miss an opportunity to hear their strongest defense. This is partly why many college students regard expositors of ideas that have been deemed ‘toxic’ as either ignorant or evil people. Not only have said ideas have been robbed of a fair hearing, but the students have lost an opportunity to understand the arguments behind such ideas. Every such missed opportunity incrementally infantilizes students, atrophying their Minds like unused muscle. The other cost of banning ‘toxic ideas’ is that they do not disappear upon banishment. Rather, absent the harsh light of criticism to which those ideas may have been exposed if they were not forbidden, they fester underground. They will inevitably return to the surface with more adherents than there would have been had the ideas been publicly exposed to criticism.
We have seen the paradoxes and unforeseen costs of banning particular ideas from receiving an audience. But what are the benefits of receiving them earnestly, facing their arguments square in the face? J.S. Mill expressed such benefits over 150 years ago in his brilliant book, On Liberty.4 If a person is correct in his argument, then engaging with someone of another opinion still exposes him to a “livelier impression of the truth”. The truth remains vivified by “collision with error”. Our most cherished opinions, and our most confident theories, ossify into dogma absent exposure to criticism, be it mockery, scrutiny, or testing. If an opinion is incorrect, of course, the benefit of rational discourse is to not only reveal the belief for its falsity, but, just as importantly, to reveal why it is wrong. Thomas Kuhn, in The Structure of Scientific Revolutions, describes a crisis in science as a period during which enough paradoxes in the accepted paradigm have been found such that new ideas must be discovered in order to resolve them.5 The successful and innovative theories are those that make sense of the previous paradigm’s contradictions. But this cycle applies to all domains in which rational criticism applies; through criticism we discover paradoxes and anomalies, and only then do we know in which directions to search for deeper Truths. To assume one’s opinion—or idea, or theory—is correct beyond further debate is to close the Truth off from further improvement.
Absent authoritative rules against offensive speech or ideas, college students must learn how to refute arguments, rather than to merely moralize their opponents away. Given that only the former leads to Truth, students will come to recognize that absolute Truth is a chimera—all assertions about Reality require argument. Humbled by the impossibility of absolute certainty, one may ask how to deal with arguments in practice. One common mistake is to impugn the interlocutor’s motive. It is the mark of the immature to assume the best in oneself but the worst in everyone else. For example, atheism does not imply nihilism, libertarianism does not imply callousness, nor does a pro-life stance imply misogyny. Sanctimony may satisfy the heart, but the Mind is done a disservice. A helpful technique is to ‘steelman’—to express the opposing position in such a way that the holder of said position would strongly approve. It is a stunningly revealing exercise into one’s misunderstandings of other positions, and college students will grow stronger by doing so.
To be sure, there is a difference between debating in real time and exploring the Truth on one’s own. Given that time is a scarce resource, one can only spend so much of it arguing with someone else. Thus, one must have a criterion for deciding when discourse ought to end. This will vary from person to person, but broadly speaking, one will cease to engage when the time spent outweighs the benefits gained from the discussion. Such a cost-benefit analysis in turn depends on an array of factors, such as whether the dialogue is public or private, etc. But this subjective criterion is besides the point. What matters is that even after discussion has ended, one must remain vigilant in one’s own Mind. Absolute certainty is a chimera, as we have seen. Understanding why one holds a particular view is—or should be—an active process that requires constant criticism and revision, even if no one is privy to the process. More so than any particular position, this commitment to the process of Truth-by-argument is what college students should value.
If we exclude violence as legitimate means to bring forth change, then conversation is all we have. Personal attacks, moralizing, and violence simply will not do. We are better than that, and our society deserves as much. Young people are our future. Only by valuing the process of Truth-by-argument may they distinguish Truth from falsehoods both pernicious and naïve. May we bless them with the opportunity to think for themselves.
Hoppe, Hans-Hermann. Economics and Ethics of Private Property: Studies in Political Economy and Philosophy. 1993.
Bacon, Francis. Novum Organum Scientiarum. 1620.
Popper, Karl. The Logic of Scientific Discovery. 1934.
Mill, J.S. On Liberty. 1859.
Kuhn, Thomas. The Structure of Scientific Revolutions. 1962.
Without free speech people stop thinking, losing out on all but a narrowing band of ideas. Open discussion, debate, and argument are the core of democracy. Bad ideas are defeated by good ideas. Fascism seeks to close off all ideas except its own.
Yet all of these most basic concepts of free speech in our nation are under threat, and too many of them are under threat from the left. I never thought I would write that last phrase, just as I never thought I’d need to explain five bad arguments the Left is using to restrict speech from the Right.
Despicable people and their ideas have always existed, though it is essentially a quick summary of the whole point of free speech to remind that at different times in our history speaking out against slavery, against war, against one president or another, have all been seen as despicable. Restrictions on free speech have been used to ban great literature, books about women’s reproductive health, and photos once deemed “pornopgraphic” now displayed as art. Someone will always find an idea or word offensive. Allowing that person to judge for all of us has never proven to be on the right side of history.
The arrival in 2017 of neo-nazis, alt-right, white supremacists, racists, and the many flavors of ‘phobes is sadly nothing new. The current poster children for hate, Richard Spencer, Milo Yiannopoulos, Ann Coulter, and Charles Murray, are no one new either (Coulter’s first book came out in 1998; Murray published his loathed book on welfare in 1984 and both have spoken publicly ever since.) What does seem to be new is that their opposition — the antifa, the anti-fascists — is now aggressively embracing many of the same tools once used to try and stop the anti-war movement, feminists, and other progressive groups in the past. The justification is Everything Is Different since November’s election, and the old rules not only don’t apply, but that wishy-washy democratic ideals of free speech are now a threat to democracy.
And so an incident at the Trump inaugural set “Is it OK to punch a Nazi for what he said?” bouncing around the media, including in the New York Times and The Nation, two venerable outlets which have otherwise long fought for free speech, and whose writers have long risked jail time in the practice of it.
What happened was that alongside the inauguration Neo-Nazi Richard Spencer was explaining live on camera the meaning of Pepe the Frog, a silly cartoon figure somehow adopted as a mascot by the anti-immigrant, anti-Semitic, and anti-feminist movement Spencer promotes. An anonymous black-clad antifa protester ran into the scene and sucker punched Spencer. His free speech was ended by that act of violence.
There followed tens of thousands of comments on the YouTube videos of the attack. The standard response was “I don’t condone violence BUT…” and then go on to condone violence. Another popular comment was to invoke Hitler, claiming violence is now justified as a leftist response to hateful speech by the right, and that if perhaps more people had punched Hitler in the early days the world would be a better place. More than a few people online also suggested punching someone in the head is in fact a form of protected free speech itself, and others seem to think whatever they label as “hate speech” is a crime. Others used phrases along the lines of “the end justifies the means” and “by any means necessary.”
A popular meme was to put different songs, many calling for more violence, behind the punching video. Jon Favreau, a former speechwriter for Barack Obama, tweeted “I don’t care how many different songs you set Richard Spencer being punched to, I’ll laugh at every one.”
Following the Spencer attack, similar violence landed at Middlebury College, then at a rally where one protester who displayed a Confederate flag was attacked, and at the University of California Berkeley (the university was ironically home to the Vietnam War protest-era Free Speech Movement.) Institutions, including Berkeley and New York University, canceled, postponed, or scheduled into dead zones for attendance speeches by conservative speakers, citing public safety concerns.
What grew out of the Spencer incident and those in Berkeley, Middlebury and elsewhere are a series of inaccurate and/or weak arguments from too many in favor of restricting speech. Let’s look at some, and why they do not hold up.
1. The First Amendment Only Applies to Government?
The first fallacious argument used to shut down free speech is that the First Amendment of the Bill of Rights in our Constitution only applies to government, and so universities or other entities are entitled to censor, restrict or shut down altogether speech willy-nilly.
Short Answer: Not really. Public funding invokes the First Amendment for schools, and free speech runs deeper than the Bill of Rights. It’s as much a philosophical argument as a legal one, not a bad thing for a nation founded on a set of ideas (and ideals.)
Free speech in America is an unalienable right, and goes as deep into the concept of a free society as any idea can. Though cited as far back as 1689 in England, the American version of this was laid out most clearly by Thomas Jefferson, in the mighty Declaration of Independence, where he wrote of rights that flowed from his notion of The Creator, not from government, and thus were fixed.
Jefferson’s invocation of the Creator is understood now as less that free speech is heaven-sent and more that it is something that exists before and after our time. Government thus did not give us the right to free speech and therefore cannot take it away. The First Amendment simply codifies that latter part, laying out like much of the Bill of Rights what the government cannot do. So the argument that the First Amendment does not necessarily apply to all public speaking can be both true and irrelevant at the same time, and the latter is more important. Abetting free speech is an obligation in a democracy in general, and to an institution devoted to truth and education in the particular.
And though the fundamental argument is the controlling one, there does also exist a legal one that extends the First Amendment restrictions to institutions that accept Federal funding (which means most of them); in the 1995 case Rosenberger v. University of Virginia, the Supreme Court held that the University could not fund all student publications except those addressing religious views because such a policy violated the institution’s constitutional obligation not to discriminate against particular viewpoints.
Bottom Line: Universities are not free to restrict speech simply because they are not the government. They should be ashamed of themselves for trying to find ways to circumvent free speech instead of promoting it.
2. What’s Said May Provoke Violence in the Room (A Clear and Present Danger)
Some claim that certain conservative speakers, such as Milo Yiannopoulos, who purposefully use anti-LGBTQ slurs to provoke their audiences, should be banned or shut down. Their speech is the equivalent of yelling Fire! in a crowded movie theatre when there is no actual danger, provoking a deadly stampede for the exits.
Short Answer: The standards for shutting down speech are very restrictive, and well-codified. Milo comes nowhere close.
The Fire! line from a Supreme Court decision Schenck v. United States by Justice Oliver Wendell Holmes is often cited as justification for limiting free speech. Here’s what Holmes wrote:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.
The full decision says the First Amendment doesn’t protect false speech that meets three conditions: 1) the speech must be demonstrably false; 2) it must be likely to cause real harm, not just offense or hurt feelings, and 3) must do so immediately. That’s the “clear and present danger.”
This interpretation of the First Amendment has been adjudicated to impose a high barrier to restrictions on what can be blocked or banned, and over the years has allowed flags to be burned in front of veterans, Nazis to march among Holocaust survivors, artists to make religious sculptures from their own body waste.
Schenck was what jurists call bad law, in that it sought to use the Espionage Act against a Socialist pamphleteer, to stop free speech, not protect it (in other words, the pamphleteer was determined to be a clear and present danger in wartime and rightfully arrested.) The case was eventually overturned, and in truth Holmes’ statement was originally intended to mean the First Amendment is not absolute, that restriction is lawful, along with the developing idea that restriction on speech should be narrow and limited.
It was the later case of Brandenburg v. Ohio that refined the modern standard for restricting speech to that “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” But we talk about Holmes’ “fire in a crowded theatre” line as a kind of shorthand for all that.
Justice Holmes, perhaps as an act of contrition, later wrote in another landmark case:
The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
Bottom Line: The Supreme Court has set a very high bar against restricting speech based on the idea that what is being said leading to violence. Concerns, offense or general threats alone are insufficient to justify silencing someone as a solution.
3. What’s Said May Provoke Violence Outside (Public Safety)
The idea that a university or other venue cannot assure a speaker’s safety, or that the speaker’s presence may provoke violent protests, or that the institution just doesn’t want to go to the trouble or expense of protecting a controversial speaker has become the go-to justification for canceling or restricting speech. Berkley cited this in canceling and then de-platforming (rescheduling her when most students would not be on campus) Ann Coulter, whose campus sponsors are now suing, and New York University cited the same justification for canceling an appearance by Milo Yiannopoulos.
Short Answer: Canceling a speaker to protect them or public safety is the absolute last resort, and some risk to safety is part of the cost to a free society for unfettered speech.
The most glaring misuse of this argument is when such a justification is applied only toward one strain of speech, say unilaterally against conservative speakers and not against others. The conclusion can only be danger comes from unpopular ideas based solely on their being presented on a left-leaning campus. The argument of restricting a speaker “for their own safety” who is otherwise willing to take on certain risks to make their voice heard can thus be applied in a biased manner. Restricting speech for safety needs to be content neutral.
Public safety has been long (mis)-used to silence otherwise protected speech. Recently the town of Urbana, Illinois arrested someone burning an American flag (an act long-held to be a form of protected speech) claiming he was in danger from bystanders. Such thinking has in the past been used to deny permits for civil rights marches, with law enforcement saying they could not protect the protestors. Both sides in the abortion debate have used this argument as well outside clinics.
While institutions do have an obligation to public safety, that obligation must be balanced against the public’s greater right to engage with free speech. Though there exists opinion on the proper balance, the answer is rarely to ban speech outright simply to maintain order.
One landmark case from 2015 provides some of the clearest guidance yet:
When a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals. Nor can an officer sit idly on the sidelines — watching as the crowd imposes, through violence, a tyrannical majoritarian rule — only later to claim that the speaker’s removal was necessary for his or her own protection. Uncontrolled official suppression of the privilege [of free speech] cannot be made a substitute for the duty to maintain order in connection with the exercise of that right.
The case involved a group called the Bible Believers who used crude langauge (“Turn or Burn”) at an LGBTQ gathering. The judges continued in their opinion allowing the Bible Believers to speak:
We do not presume to dictate to law enforcement precisely how it should maintain the public order. But in this case, there were a number of easily identifiable measures that could have been taken short of removing the speaker: e.g., increasing police presence in the immediate vicinity, as was requested; erecting a barricade for free speech, as was requested; arresting or threatening to arrest more of the law breakers, as was also requested; or allowing the Bible Believers to speak from the already constructed barricade to which they were eventually secluded prior to being ejected from the Festival.”
“If none of these measures were feasible or had been deemed unlikely to prevail, the officers could have called for backup… prior to finding that it was necessary to infringe on the group’s First Amendment rights. We simply cannot accept Defendants’ position that they were compelled to abridge constitutional rights for the sake of public safety, when at the same time the lawless adolescents who caused the risk with their assaultive behavior were left unmolested.
The understanding that law enforcement, or any institution, can turn first to shutting down speech that requires physical protection, has failed the courts’ tests in cases are diverse as Occupy and where a Christian group brought a pig’s head on a stick to a Muslim Arts festival.
In sum, the court has long recognized that content-based regulation of speech in a public forum (the “health and safety” restrictions) is permissible only “to serve a compelling state interest” and only when the regulation “is narrowly drawn to achieve that end.”
Bottom Line: An institution cannot cite avoiding public disruption as the initial or sole reason to restrict speech. The problems of having Ann Coulter speak on campus are outweighed by the obligation to protect free speech. Maintenance of the peace should not be achieved at the expense of the free speech. Getting rid of the speaker is expedient but unconstitutional. There are plenty of laws that legitimately protect against violence on their own.
4. Speech Can or Should Be Restricted Based on Content (Hate Speech)
There are no laws against “hate speech.” A speaker can call people names, and insult them by their race, sexual orientation or religious beliefs. What many people think and say is hateful. It is carefully thought out to inspire hate, to promote hate, to appeal to crude and base instincts. Indeed, that is their point. But there is no law or other prohibition against hate speech. Even restrictions on “hate speech” meant to prevent violence, often cited as the justification to restrict such speech, are by design extremely narrow.
Short Answer: You cannot restrict hate speech. Free speech means just that, with any limited restrictions content-neutral.
The Brandenburg case test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action; (2) the speaker intends that their speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of the speech. A hostile reaction of a crowd does not transform protected speech into incitement. Listeners’ reaction to speech is thus not a content-neutral basis for regulation, or for taking an enforcement action against a speaker.
A second type of speech that is categorically excluded from First Amendment protection and often erroneously labeled hate speech are “fighting words.” This category of unprotected speech encompasses words that when spoken aloud instantly “inflict injury or tend to incite an immediate breach of the peace.” No advocacy can constitute fighting words unless it is “likely to provoke the average person to retaliation.” Offensive statements made generally to a crowd are not excluded from First Amendment protection; the insult or offense must be directed specifically at an individual.
The upshot is that apart from some very narrow definitions of violence-inducing words, the obligation exists to the concept of free speech independent of the content of that speech. This is also one of the most fundamental precepts of free speech in a democracy. There need be no protections for saying things that people agree with, things that are not challenging or debatable or offensive; free speech is not really needed for the weather and sports parts of the news. Instead, free speech is there to allow for the most rude, offensive, hateful, challenging stuff you (or your neighbor, your political party, your government) can imagine.
This is why, in the midst of Berkeley seeking to ban Ann Coulter from campus, Elizabeth Warren said “Let her speak. If you don’t like it, don’t show up.” Same for Bernie Sanders, who said “What are you afraid of, her ideas? Ask her the hard questions. Confront her intellectually. Booing people down or intimidating people or shutting down events — I don’t think that that works in any way.”
More? The ACLU also supports Coulter’s right to speak. And so the ACLU supports the rights of all groups, to include Nazis and the Klu Klux Klan, to speak.
It should make a college age ACLU donor proud to know her $25 contribution helps both Black Lives Matter and the Klan to stand up and say what they think, but it apparently does not.
The president of the Newseum goes as far as arguing some people have developed an “alternate understanding” of free speech, with students in particular believing “offensive” speech is or should not be protected, particularly when the offense is directed at groups defined by race, ethnicity, gender or sexual orientation.
Ulrich Baer, vice provost for faculty, arts, humanities, and diversity, and professor of comparative literature at New York University, wrote plainly “Universities invite speakers not chiefly to present otherwise unavailable discoveries, but to present to the public views they have presented elsewhere. When those views invalidate the humanity of some people, they restrict speech as a public good. In such cases there is no inherent value to be gained from debating them in public.”
Baer is worth quoting at length, because his views capture the view of many progressives toward the now-threatening concept of unfettered speech:
The idea of freedom of speech does not mean a blanket permission to say anything anybody thinks. It means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community. Free-speech protections — not only but especially in universities, which aim to educate students in how to belong to various communities — should not mean that someone’s humanity, or their right to participate in political speech as political agents, can be freely attacked, demeaned or questioned.
He ends without irony this way:
Freedom of expression is not an unchanging absolute. When its proponents forget that it requires the vigilant and continuing examination of its parameters, and instead invoke a pure model of free speech that has never existed, the dangers to our democracy are clear and present.
Baer could not be more wrong. There is no legal or other justification for banning speech based on who it may offend or threaten, in fact, quite the opposite. Justice Oliver Wendell Holmes declared unpopular ideas should have their opportunity to compete in the “marketplace of ideas.” Free speech is not an ends, it is a means, in a democracy.
Justice Louis Brandeis held that people must discuss and criticize ideas, that free speech is not only an abstract virtue but also a key element that lies at the heart of a democratic society. Even the fact that speech is likely to result in “violence or in destruction of property is not enough to justify its suppression.” Brandeis concluded “the deterrents ordinarily to be applied to prevent” violence and disruption “are education and punishment for violations of the law, not abridgment of free speech.”
Bottom Line: There is no justification for restricting speech so that people are not offended. Speech may offend, indeed that may be its point, but bad ideas are then defeated by better ideas.
5. Free Speech Should Not Be Subject to the Heckler’s Veto
Another argument used by some progressives is that the so-called Heckler’s Veto is in itself protected speech. Someone may have a right to speak, but someone else has the same right to shout them down and prevent them from being heard.
Short answer: Free speech is not intended to mean whomever can literally “speak” the loudest gets to control what is said. The natural end of such thinking is mob rule, where Speaker A gets a bigger gang together to shout down the gang Speaker B controls.
While protestors have an obligation not to abuse their rights of free expression by harassing or intimidating speakers in ways that unduly interfere with communication between a speaker and an audience, there does exist a balancing process.
Agreed upon is that numerous legitimate ways exist to challenge speakers, including engaging them or ignoring them entirely. In contrast, using a Heckler’s Veto to keep unpopular speakers from expressing their views not only stifles a particular idea, but threatens to chill public discourse generally by discouraging others with controversial ideas from sharing them. Who wants to stand up only to be shouted down by a mob?
The most insidious use of the Heckler’s Veto is to have audience members create a situation that compels law enforcement to shut down a speaker for them, abusing their own freedom of speech to get the government to shut down someone else’s. The law allows for law enforcement to act this way, but also makes clear it is wrong for “regulations to allow a single, private actor to unilaterally silence a speaker.”
It is also quite sad to note the same tactic used at Middlebury College to silence speaker Charles Murray was employed during the civil rights movement when whites threatened violence if civil rights marches were permitted to take place. The tactic is also used by abortion foes to try and shut down clinics. The Supreme Court concluded the government’s responsibility in these circumstances is to control those who threaten or act out disruption, rather than to sacrifice the speaker’s First Amendment rights. Unfortunately, that was not what happened in Middlebury College, as Murray was run out of town for his own safety and the mob won.
Bottom Line: Balancing the rights of the speaker, those who wish to hear them, and those who wish to protest is complicated. But simply shutting down one party entirely, or allowing one party to block the rights of the others, is wrong.
Flipping the Argument
It is hard today to be seen as defending the nasty words of a guy like Richard Spencer when one is defending his right to speak independent of what he says. It is easy for some in Trump’s America to claim the struggle against fascism overrules the old norms, that freedom must be defended and that defense justifies violence. Flipping an argument makes it easier to see the fallacy. So:
So this guy beat the air out of this Black Lives Matter woman; she was spewing out hate speech, really racist stuff, and the guy acted in what he perceived as self-defense. Then some people who opposed Trump’s travel ban started calmly laying out their views on a street corner, and the same guy, who believes deep into his soul that Muslims are a threat to democracy and allowing them into America is a step toward fascism, got a bunch of his buddies together and by sheer force of numbers shouted down the pro-Muslim people, forcing them to run away for fear for their safety.
Justification? The dude was pretty clear he was just exercising his First Amendment rights, that it was wrong for those protesters to have a platform and hey, he isn’t the government and the First Amendment only applies to the government. Sure violence is bad in isolation, but in defense of freedom, well, by any means necessary. While he was beating on the activists, he shouted he “understands the moral and practical limitations of wholly free discourse.”
You get it.
Free speech protection covers all the things people want to say, from the furthest left to the furthest right. You can burn a flag, display a nude body, fill a fish tank with urine and call it art, put on a KKK uniform and march past a Black church, and say whatever Richard Spencer says. Free speech means a lot of things, including that I can write this article, and you can say what you want about it and me. It is messy as hell, and it is our essential defense against fascism and control, whether from the left or the right.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
A society which is dedicated to the preservation of these ultimate values of civilization may in self-protection utilize the educational process for inculcating those almost unconscious feelings which bind men together in a comprehending loyalty, whatever may be their lesser differences and difficulties.
These decisions came not in a vacuum, but in an era of brutal and largely forgotten persecution of Jehovah’s Witnesses in America, which I discussed in the first episode of the “Make No Law” Podcast. You could call this tyranny, but the persecution was not committed by an abstraction. The people who abused those Americans were their neighbors, their fellow citizens, their equals before the law. The men on the Supreme Court who initially endorsed — and arguably encouraged — the abuse were just men, a collection of individuals rather than icons.
Sacramento, CA —Three anti-fascist activists are accusing California police and prosecutors of a “cover-up and collusion” with white supremacists during their investigation of a rally that turned violent back in 2016, the Guardianreported Friday.
The activists, who attended the Sacramento rally to counter-protest the message of the Traditionalist Workers Party (TWP), the neo-Nazi group that organized the original event, were arrested and charged with felonies for their participation.
But the activists fired back this week, presenting documents to the judge they say provide evidence that the California Highway Patrol (CHP) worked hand-in-hand with the neo-Nazis in an effort to identify the counter-protesters.
Further, the defendants allege, the records reveal that investigators actually showed sympathy toward the white supremacists and worked to try to protect the identity of the TWP member who obtained the permit for the event.
“It is shocking and really angering to see the level of collusion and the amount to which the police covered up for the Nazis,” Yvette Felarca, a teacher and one of the anti-fascist organizers, told the Guardian.
Felarca says during the clash that day in Sacramento she was stabbed in the arm and bludgeoned in the head, a wound that required more than 20 stitches. She says it took her weeks to fully recover.
“The people who were victimized by the Nazis were then victimized by the police and the district attorneys,” she said.
Shanta Driver, one of Felarca’s attorneys, told the Guardian that the documents presented before the judge show a “textbook case of a political witch-hunt and selective prosecution.”
In one instance, the records reveal that in a phone call, CHP investigator Donovan Ayres warned Doug McCormack — the TWP member who obtained the rally permit — that the cops may have to release his name due to a public records request.
“I’m gonna suggest that we hold that or redact your name or something until this gets resolved,” Ayres told McCormack, adding that he wasn’t sure who had requested records of the permit. “If I did, I would tell you,” Ayres said.
Additionally, Ayres’ write-up about an African American activist — one who was stabbed in the chest, abdomen, and hand during the rally — raised alarms in the minds of the defendants and their attorneys.
Records show the man was treated more like a suspect than a victim, with Ayres recommending he be charged with 11 offenses, including unlawful assembly, conspiracy, assault, and wearing a mask to evade police.
To support his recommendation, Ayres provided Facebook photos of the man holding up his fist. Ayres claimed the man’s “Black Power salute” and his “support for anti-racist activism” demonstrated his “intent and motivation to violate the civil rights” of the neo-Nazis.
Documents also show that cops worked with TWP member Derik Punneo while trying to identify the anti-fascist activists. Audio recordings reveal that investigators brought photos to Punneo in jail after he was arrested on unrelated charges.
“We’re pretty much going after them,” officers told Punneo, assuring him that “we’re looking at you as a victim.”
Neither Punneo nor McCormack, as well as several other TWP-affiliated individuals who were involved with the rally, have been charged with any crimes.
In a response filed Thursday, prosecutors in the case state “every assertion” in the defendants’ motion to dismiss is “inaccurate or fabricated” and further accused the activists’ lawyers of using the filing to “make a political statement.”
As for the white supremacists themselves, prosecutors stated that “no one is beneath the protection of the law, no matter how repugnant his or her rhetoric or misguided his or her ideals.”
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