Decades ago, a group of American Nazis wanted to hold a march, complete with swastikas and all the rest of the Nazi regalia. The city they wanted to march in turned their request down. The Nazis fought in court, and they were aided in doing so by the American Civil Liberties Union. That’s what an unshakable commitment to the First Amendment means ― defending those with whom you do not agree. Which is why I support Ann Coulter’s right to speak at the University of California, Berkeley. I certainly don’t agree with a single word that comes out of the woman’s mouth, but I have to defend her right to spew her bile in a venue supported by my tax dollars.
The Nazi case was a shocking one for many reasons, and anyone who uses the term “trigger warning” today will be horrified (perhaps this sentence should have been preceded by a trigger warning for those who support trigger warnings?) to learn that the city in Illinois where the Nazis wanted to hold a swastika-bedecked march was not only 40 percent Jewish, but by some estimates one out of every six was either a Holocaust survivor or a family member of a Holocaust survivor. In other words, the Nazis weren’t just trying to be as offensive as humanly possible, but they also were hand-picking their venue to maximize how offensive their march would be to the residents. But they still had the right to march, and the Supreme Court ruled they would be allowed to display swastikas, as well.
Free speech isn’t absolute. There are restrictions on the First Amendment. The biggest of these is speech that incites violence. Call it “fighting words” or call it “incitement to riot,” speech that directly leads to violence is not protected free speech. Speech that causes unsafe panic is also not allowed ― the famous “falsely shouting fire in a theater.”
Beyond those two reasonable restrictions for public safety, things get fuzzier. Actually, even those two still have some fuzzy edges. There are people currently arguing in court that Donald Trump incited violence at his presidential campaign rallies, for instance. And the Schenck case that birthed the phrase “falsely shouting fire in a theater” (the word “crowded” did not appear in the original) would be seen as laughably dubious in today’s world (I’ve written about this case previously, which involved a protester handing out a flier with a legal argument that a military draft was unconstitutional, during World War I).
Getting beyond public safety limits, what other limits on free speech (most especially political speech) exist? Is it allowable to ban “hate speech”? Do the students have a right not to be offended by a speaker? Well, no and no. Because Berkeley is a public school ― supported by government tax dollars, in other words ― it is considered a branch of the government. As such, it can either allow everyone the ability to speak, or no one.
This has already been adjudicated, in slightly different formats. For instance, a KKK group applied for a “adopt-a-highway” program, and were denied. They wanted to pick up the trash on a few miles of state road, and also get the privilege of a little sign by its side with their name on it ― the same as every other group that picked up trash in the program. The state made a convincing argument in court for why it turned the group down ― because, they said, motorists would go out of their way to litter on that stretch of highway to protest a KKK group’s sign. As I said, that’s a pretty reasonable argument. But they were ruled against. The judge ruled that the state could either accept all groups or none, period ― without regard to their beliefs or political views. This “all or nothing” rule also applies to states’ afterschool groups in K-12 schools. A while back, several states’ school systems tried to ban gay support groups from having access to meeting rooms, while at the same time allowing the Boy Scouts (who at the time still banned gays) to meet. The states lost in court, because they could either allow everyone or no one, period.
This all may seem pretty extreme, but then the First Amendment is pretty extreme, when it comes to government regulation of speech. Free speech means nobody gets arrested for their political views. But, as many have pointed out, popular political speech doesn’t really need protecting ― it is unpopular speech that needs protecting the most. This even includes arguing that certain laws should be changed. Which means that Berkeley cannot even ban a speaker from NAMBLA, who argues pedophilia should be made legal. If they can ban NAMBLA, then they could also ban a marijuana reform activist or a transgender activist or indeed anyone at all arguing that our laws needed changing (for better or worse, in other words).
The university is at one remove, in the Coulter case. The university itself didn’t invite her to speak. It’s hard to imagine Berkeley officially inviting someone like Coulter (or a NAMBLA activist, for that matter) to speak. Then again, torture-rationalizing John Yoo was invited onto the faculty of the Berkeley law school, so who knows? My point is the university can set any standard they want for who they choose to invite to give an officially-sanctioned speech. In Coulter’s case, however, it was a campus group that invited her. It was the students’ initiative, not the university’s. And, much like state high schools, the administration can either allow all student-invited speakers, or none. What it cannot do is pick and choose on purely political grounds.
There is the safety argument, but even that has its limits. Even public high schools have to allow a certain amount of free speech from the students. The Supreme Court ruled public school students ― even though minors ― still had the right to wear black armbands to protest the Vietnam War, ruling against the schools’ argument that it was a public safety risk (because it would provoke fights). However, schools today routinely ban gang colors using the same reasoning (to prevent violence), which is allowed. Berkeley is right to worry about the potential for violence if Coulter speaks, given what happened when another controversial conservative speaker was scheduled a few months ago. Two groups ― mostly not even students, but outside agitators ― have faced off several times on the streets of Berkeley in the past few months, with violent consequences.
Which brings me to my final point. The answer to offensive free speech, it has been said, is more free speech. Don’t like what someone advocates? Let your voice be heard! But this gets a little tricky in the real world. After all, what is the acceptable way to protest a speaker with whom you do not agree? Stand outside the venue and protest loudly? Attend the speech and protest loudly? Fight for what you think is right, even if it means violence?
There are lines that should be drawn, obviously. Violence, to me, is completely uncalled for no matter what a speaker is advocating. Protesting ― as loudly as you like ― outside the venue is entirely acceptable, however. Let the audience walking in hear an earful! But I would also argue that blocking the entrances to prevent an audience from getting in is over the line.
Physical intimidation or physical violence to achieve political ends can be called by two words, neither of them good. If you want to be polite, you can call it “bullying.” The message is clear: we’re stronger than you, so you don’t get to hear somebody speak. The uglier term for violence to further political means is “terrorism.” Now, even a street riot outside a lecture hall isn’t normally a deadly level of violence, but the level doesn’t really matter. Making someone fear violent retribution for their political beliefs is one functional definition of terrorism. This is what I believe, at any rate, which is why I draw the line at politically-inspired violence.
The grey area, for me, is what happens inside the hall. Do students have a right to a “shouter’s veto” over someone else’s free speech? Isn’t that just more free speech? Or is it further bullying ― denying a speaker her voice because ours is louder?
This is a tough one, and different people have different opinions. It’s not a legal matter, it’s more a matter of politeness. But everyone has their own lines on the issue. If I had been standing on a sidewalk in Skokie, Illinois and a bunch of Nazis in full regalia marched by, I most probably would have very loudly voiced my displeasure and disgust. I might have even followed them to where they were holding a rally and continued to shout them down. I would consider that the most moral thing to do, really. So I can understand how some people feel Ann Coulter deserves nothing more than the same treatment, even inside the lecture hall.
But I can also sympathize with those who feel that the real way to counter a speaker like Coulter is to listen to what she has to say (allowing her to speak) and then refuting it point by point afterwards. That is a debate, and is two-sided. Those who feel this way have every right to be annoyed when others deny a speaker the chance to even make her case. If audience members are so disruptive that they are denying the speaker the chance to be heard, then they should be removed by security so the rest of the crowd can hear the speech. That doesn’t seem to be unreasonable, but again, I realize that everyone draws these lines differently.
Ann Coulter lives to be provocative. It’s really her whole shtick. The more she can rile up the liberals, the more fun she has. On the level she cares most about, she’s already chalked up Berkeley as a roaring success, even though it looks like she won’t be giving her speech at all (in a twist, the group that invited her has now disinvited her, for some reason). If she had been allowed to speak and no news was made, her speech would have been a failure, to put it another way. Instead, she’s made nationwide headlines.
The cruelest thing liberals could have done to Coulter in Berkeley would have been to completely ignore her, which would have starved her of the attention she craves. At this point, whatever speech she gives or doesn’t give is going to be nothing more than a footnote to the controversy she’s already created. Berkeley did not try to ban Ann Coulter, but they did mishandle the process. Because Berkeley seems to be the new battleground for both left and right, though, Coulter’s not going to be the last chapter in this drama. As long as student groups are allowed to invite people to speak, speakers who are even more provocative can be expected in the near future. But, really, that is what free speech is all about. Remember, political speech that everyone agrees with is not what the First Amendment is there for. It’s there for the most extreme and provocative speech, because that’s what needs protecting the most ― whether you agree with it or not.
Chris Weigant blogs at:
Follow Chris on Twitter: @ChrisWeigant