by Robby Soave
In fact, the Supreme Court has never recognized any sort of hate speech exception to the First Amendment. On the contrary, the Court has repeatedly noted that so-called hate speech enjoys the same legal protection as other kinds of speech. As recently as 2017, the Court ruled 8–0 that the First Amendment explicitly protects offensive statements. The case before the Court was Matal v. Tam, in which an Asian American musical group applied for a U.S. trademark for the name of their band, the Slants. “Slant” is a derogatory term for an Asian person, but the group wanted to reclaim the word, following a proud tradition of minority groups reappropriating offensive language used against them. The U.S. Patent and Trademark Office disapproved, rebuffing the band’s efforts on the grounds that the name was offensive.
The Court sided with the Slants. Speaking for a unanimous court, Associate Justice Samuel Alito noted, “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”20
And in a concurring opinion, Associate Justice Anthony Kennedy held, “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”21
It would seem obvious, then, that hate speech is vigorously protected by the First Amendment. If it were not protected, the Supreme Court would need to offer a definition of hate speech such that the average person could tell the difference between protected and unprotected speech. But no such distinction exists, and for good reason. The statements “Jesus Christ did not rise from the dead” and “The Prophet Muhammad did not communicate with angels” would certainly constitute hate speech to millions of people worldwide, but for millions of others, they are self-evidently true sentiments, and it is every American’s right to express them.
Not all protest-goers agreed with Jessica and Rose. One woman at the protest, Jackie, bore a sign that read: “Freedom of speech does not equal freedom from criticism.” She told me: “I’m all for freedom of speech. I would give up my life for [the alt-right to have the right] to wave their flags and have their rally down there. The First Amendment protects your speech from the government. It doesn’t protect your speech from your peers and society. You can be told that you’re a fucking moron. You can be told that you’re wrong. Be kicked off Twitter. All of that’s legal. As far as I understand, the government has not done anything to make the alt-right be quiet, which is how it should be, as much as I hate the alt-right.”
Jackie’s interpretation of the First Amendment is exactly correct, and was widely embraced by liberal activists of years past. She would have fit right in with the Berkeley protesters of the 1960s. Today, her position seems less common. Jackie, at age twenty-eight, is on the older side for a Zillennial. Younger people at the protest—the college-aged Jessica and the high-school-aged Rose—took the view that the First Amendment does not permit hate speech.
Some activists take a broad view of free speech when it comes to their own side—understanding that any crackdown on offensive speech would imperil their advocacy efforts—but muddy the waters when it comes to the other side.
“I am with free speech,” said Ma’at, an American University student. “I need free speech to be able to do what I do.”
But much like Rose and Jessica, Ma’at believes that there is a “fine line” between free speech and hate speech—and indeed, that the Constitution spells this out explicitly.
“I’m definitely not for censorship. However, when you start threatening identity, that’s when it needs to be addressed, because that’s past free speech,” said Ma’at. The idea that speech posing a threat to identity loses its protection is an interesting implication of intersectionality, though it’s obviously nowhere to be found in the law. And yet, Ma’at assured me, “that’s in the Constitution. You can’t scream fire in a movie theater and expect to have no consequence, because that was dangerous.”
Kathryn, the Berkeley student, used an even more colorful metaphor. “Of course people can say what they want and do what they want, but when it intersects with someone’s safety, that’s where you have to draw the line,” she said. “When speakers come and they want to entice violence and subject transgender students to feel embarrassed of who they are and to get people killed and a woman run over by a car and murdered, that’s not free speech, that’s hate speech, and that’s just evoking violence out of people. You can’t yell ‘bomb’ on an airplane because that’s going to jeopardize people’s lives and safety. It’s the same concept.”
The fire-in-a-crowded-theater line (and its more modern version, the bomb-on-an-airplane line) is frequently deployed as an example of the kind of speech that is clearly not protected by the First Amendment. According to constitutional law experts, this is a fairly misleading analogy, dating to the controversial 1919 case Schenck v. United States. In the Court’s unanimous opinion, Associate Justice Oliver Wendell Holmes Jr. wrote: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
But consider the case: using the fire-in-a-crowded-theater rationale, the Court held that the U.S. government could arrest a person—Socialist Party secretary Charles Schenck—for distributing leaflets urging able-bodied men to refuse to be drafted into World War I. (Schenck believed that the draft was a form of involuntary servitude and thus unconstitutional under the terms of the Thirteenth Amendment, which prohibits slavery.) Holmes’s opinion, therefore, essentially held that denouncing the military draft and the pointless atrocities of World War I was akin to yelling fire in a crowded theater.
It seems obvious that this way of thinking would give the government far too much power to police dissent of all kinds. Thankfully, the Supreme Court subsequently narrowed the scope of the Schenck decision. In the 1969 case Brandenburg v. Ohio, the Court held that the government could not suppress speech, even speech advocating unlawful activity, unless the speech was inciting “imminent lawless action.” In other words, in order for speech to fall outside First Amendment protection, it must consist of a clear call to commit a specific crime in the near future. Said speech must also be likely to succeed at inciting criminal behavior. If no one is taking the speaker seriously, the threshold of imminent lawless action is not met. What this means is that when young people cite the fire-in-a-crowded-theater example, they are deferring to a standard that no longer applies.
“Holmes’s famous quip demonstrates the pernicious power of slogans to replace serious engagement with legal issues,” Ken White, an attorney and First Amendment expert who writes for the legal blog Popehat, told me. “First Amendment analysis can be complex, but it’s based on specific rules and precedents. It’s principled. When people invoke Holmes’s rhetorical device, they’re abandoning that principled analysis in favor of a visceral, slogan-based generalization pointing to the result they want.”
But for the Zillennial activist, hate speech isn’t just akin to falsely shouting “fire”—it’s akin to lighting the fire yourself in an attempt to hurt people of color, women, trans people, the disabled, the LGBT community, and so on.
To that end, one of the most common demands of student activists is for university administrators to vigorously prohibit hate speech on campus. Activists at Regis University, a Jesuit college in Denver, provide a perfect example. In March 2017, Regis’s College Republicans chapter attempted to hold an All Lives Matter rally and bake sale at which students would be charged different amounts of money based on their race, as a protest against the kind of race-based admissions that take place under affirmative action policies. The point of the bake sale event—something conservative groups at colleges have hosted countle
ss times over the years—is to suggest that considering race when making admissions decisions is just as discriminatory as considering race when selling baked goods. But bake sale events typically provoke controversy, and Regis was no exception.
In response, anti-conservative students organized a community dialogue session called “Courageous Conversations: Race at Regis.” The event was put together by the campus’s Black Student Alliance, the Somos Student Affinity Group, and the Center for Service Learning’s Engaged Scholar Activist Program. This last organization is an official activist training module, run by the university, under the guise of an educational program. The students deemed the mere expression of the idea “all lives matter” to be “indisputably immoral and malicious” and a clear example of “hate speech” that made students of color feel “uncomfortable and unsafe in class.” They also accused the Republicans of violating the Civil Rights Act of 1964 for good measure.
Regis’s administration was also guilty, in the activists’ view, both for failing to prevent this hate speech from occurring in the first place and then for making no apology. The activists released a lengthy list of demands, which included the establishment of campus as a “safe space,” changes to the curriculum, diversity training for faculty, biweekly meetings of an inclusivity awareness group, and “that hate-speech, as defined by United States regulations and statutes, be included in the Regis University Student Handbook under Prohibited Conduct.”
Unfortunately for Regis activists, there aren’t any federal regulations or statutes that define hate speech. The student handbook, by remaining silent with respect to hate speech, already reflects the U.S. Constitution’s position. But the fact that students believed they could prohibit hate speech merely by bringing the university’s position in line with the government’s is telling.
Not All Young People
Despite what we’ve seen thus far, it’s important to keep in mind that the entire Zillennial cohort is not responsible for the few truly outrageous instances of censorship on college campuses over the past few years. For instance, it was not a majority of the student population at Middlebury College in Vermont but a small number of young activists who prevented the conservative American Enterprise Institute scholar Charles Murray from debating a liberal professor, Allison Stanger, in the spring of 2017. After successfully derailing the event, the hecklers—who were outnumbered by willing audience participants—pursued Murray and Stanger as they attempted to escape. A scuffle ensued, and a protester actually injured Stanger’s neck. She would later call it “the saddest day of my life.”22
Murray had been controversial for decades because of his 1994 book, The Bell Curve, which claimed that there were IQ differences among the races. But Murray was unaccustomed to being shouted down. “In the mid-1990s, I could count on students who had wanted to listen to start yelling at the protesters after a certain point, ‘Sit down and shut up, we want to hear what he has to say,’” wrote Murray. “That kind of pushback had an effect. It reminded the protesters that they were a minority.” But by 2017, the radical anti-free-speech minority held sway over the majority, and none would denounce them for shutting down the event.
How did we get from the Berkeley of 1964 to the Middlebury of 2017? For most of the years in between, free speech remained a relatively important part of progressive activism. The left and the First Amendment did not always enjoy an easy marriage, though; in 1977, when the American Civil Liberties Union defended the right of Nazis to march through Skokie, Illinois, the organization received significant pushback from its supporters.
“In ’77 and ’78, the ACLU lost 15 percent of our members over the Skokie case,” former ACLU president Nadine Strossen told me.
Even so, the ACLU stood strong. Its board voted unanimously to reaffirm the position that the ACLU would defend the right to engage in hate speech. This drew criticism from Richard Delgado, a civil rights professor at the University of Alabama School of Law, who accused the ACLU of “First Amendment totalism” in a 1994 article.23
In the 1980s and 1990s, countless university administrations implemented “speech codes” to punish racist, sexist, and otherwise offensive speech. But these codes were struck down in court time and time again.
During my own college years—2006 to 2010—the Michigan Daily, the left-of-center student paper at which I worked, invariably defended the free speech rights of utterly loathsome speakers. When Columbia University president Lee Bollinger (formerly president of the University of Michigan) invited Iranian president Mahmoud Ahmadinejad—a dictator, Holocaust denier, and enemy of the LGBT community—it was the conservatives who objected, particularly Republican senator John McCain. Weighing in on the controversy, the Michigan Daily’s editorial board wrote, “Free speech is not only for those whose ideas may be agreeable, but also for those whose opinions are disagreeable.… This type of dialogue should be more common in today’s society, especially on college campuses and in academic circles.”24
Free speech has always been under attack—from university administrations, some left-wing professors, Republican politicians, and a variety of others on the right and left. But it seems that it was just in the last few years that free-speech-skeptical leftist students became a significant threat. This is an impression shared by Greg Lukianoff, president of the Foundation for Individual Rights in Education, a free speech organization that defends the First Amendment on college campuses. FIRE keeps a list of notable people who were invited to campus to give speeches and then subsequently disinvited; the number of such disinvitations has steadily increased over the last few years, and conservative speakers are much more likely to be censored, according to FIRE.25
For the activist left, illiberal anti-free-speech norms appear to be in vogue; among Zillennials overall, it’s not so easy to tell how widely this thinking has spread. The “kids these days” type of generational fatalism is often prone to exaggeration, and when it comes to the speech question, there’s a lot of contradictory evidence.
Some surveys of young people do give cause for concern. According to a 2015 Pew survey, just 28 percent of people support giving the government the power to censor statements that offend minorities.26 More women than men supported government-backed censorship, as did more Democrats than Republicans, and more relatively uneducated people (those with no more than high school degrees) compared with college graduates. But the cohort most likely to support censorship was millennials, 40 percent of whom thought the government should have the freedom and power to suppress offensive speech. Gen Xers and Boomers were respectively just 27 percent and 24 percent supportive of government-backed censorship.
A Knight Foundation study released in the winter of 2016 found that 69 percent of college students thought university administrations should be able to prohibit intentionally offensive language. Sixty-three percent thought “costumes that stereotype certain racial or ethnic groups” could be banned. And 27 percent thought colleges should have the power to restrict “the expression of political views that are upsetting or offensive to certain groups.” Twenty-seven percent is a minority, to be sure, but it’s still notable that a quarter of students surveyed wanted to give their administrators the power to suppress political views that upset “certain” groups—in other words, anyone.
In 2015, Yale University released a study, conducted by McLaughlin and Associates, involving interviews with eight hundred college students from around the country. The results were striking: 51 percent wanted “speech codes” that would prohibit other students and faculty members from saying offensive things, and 63 percent favored mandatory trigger warnings—they wanted to compel professors to warn them ahead of time if anything in the material would be objectionable.
A few liberal thinkers, including Vox writers Matt Yglesias and Zack Beauchamp (the latter is a good personal friend), have pushed back on the idea that there’s a Zillennial free speech problem, even going as far as to claim that the purported free speech “crisis” is a myth.27 Supporting
their position is the fact that only a very small number of speakers have actually been disinvited from campuses. “There is limited evidence of a systematic and serious threat to free speech on campus,” wrote Beauchamp.
He’s not wrong, but that’s because it’s quite difficult to track these things, and it’s virtually impossible to quantify the chilling effect on students and faculty members who choose to keep their mouths shut because of the handful of high-profile shutdown incidents.
Jeffrey Sachs, a professor at Acadia University who has also criticized the crisis narrative, cites the General Social Survey—a widely used data set that goes back to the early 1970s—as offering proof that Zillennials are actually better on free speech than their predecessors.28 And again, there’s something to this: more young people think homosexuals should be allowed to speak in public today than did in 1975. But I would suggest that this probably reflects improving tolerance toward homosexuals, not changing free speech norms. On the question of racist speech—something that is still considered offensive today, unlike pro-gay speech—young people are now more likely to support censorship than they did previously. (The General Social Survey data might also be less relevant than they seem; for instance, the survey does not poll students who live in “group quarters,” such as dormitories.)
I think the critics are right to push back on some of the more hyperbolic claims about a free speech “crisis” on college campuses. But current students are, by some measures, more hostile to free speech than just about anybody else. One of the most comprehensive—and depressing—surveys of American attitudes toward free speech was published by the Cato Institute in October 2017. According to Cato, 55 percent of Americans expressed the view that people should be free to disrespect each other, but a slim majority (51 percent) of current college students and graduate students took the opposite position: people don’t deserve free speech rights if they are disrespectful. While 64 percent of college-educated Americans said the government should permit hate speech, current students were divided on the question. Which demographic was the most likely to say hate speech constituted violence? You guessed it: 60 percent of the under-thirty crowd thought so.
