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Safety or Liberty? The Constitution Says We Can Have Both
Certain things used to be more, well, self-evident. A great many of us didn’t necessarily like, but understood, the First Amendment protected some speech we strongly disagreed with, or some speech that even made us afraid. We accepted there was an often uncomfortable duty to protect the right to speech irrespective of its content. We understood if we allowed government and institutions to block one person’s speech, even someone with terrible ideas, they could block others. Right up to when they came for us.
Then a collective mental breakdown took place in November 2016, and an almost organic sense that overnight America set itself on the path to fascism became the justification for the weakening of the First Amendment. Free speech is now seen by many as a liability, an enabling tool for anyone one might label a “nazi.” Some 69% of American college students believe hate speech (“Using language on campus that is intentionally offensive to certain groups”) should be banned by the government. It is an increasingly common point of view that taking away someone’s right to speak, a tool of fascism, somehow protects against the encroach of fascism.
And so welcome to The Ohio State University, which has refused to allow white supremacist Richard Spencer to speak on campus November 15.
The attorney representing Ohio State said Spencer would pose a “substantial risk to public safety, as well as material and substantial disruption to the work and discipline of the University.” Ohio State was no doubt also thinking of the $600,000 the University of Florida claimed it cost to provide security for Spencer’s recent appearance there. The Florida response included hundreds of police officers from five jurisdictions, as well as SWAT teams and snipers.
Both Ohio State and Penn State (also denying Spencer the chance to speak) are being sued for violating the First Amendment. Without explanation, nearby University of Cincinnati will allow Spencer to speak.
The law does not appear to be on Ohio State’s side. Blocking a speaker to protect public safety is an absolute last resort, and some risk to safety is part of the cost of the unfettered speech a democracy needs to thrive. Freedom, it seems, really is not free. The security costs are in fact to protect the First Amendment in broad practice, not simply one man in the specific.
The security problems Ohio State cites are not created by the speaker; they are created by the mob expected to oppose the speaker and on the assumption Spencer’s supporters will fight back. A historian lecturing across campus from Spencer on Babylonian art needs no police presence. Allowing the mob to have the final word on who speaks can in fact help create mobs where none otherwise exist. Placing a dollar test on free speech means it is only available to those who can afford it.
These questions are not new. Public safety has been long (mis)-used to silence. 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. Similar thinking has 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. 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. 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 belief law enforcement, or any institution, can turn first to shutting down speech that requires physical protection, has failed other courts’ tests in cases are diverse as Occupy and where a Christian group brought a pig’s head to a Muslim Arts festival.
I spent four years as an undergrad at Ohio State, and saw first-hand how the university can protect the free speech rights of a diverse group of speakers. A former member of the Black Panther party spoke in favor of racial violence. My time on campus was an era of fights for LGBTQ and other rights, and I saw massive police turnouts to protect gays marching across campus, and for a women’s “Take Back the Night” march through rough neighborhoods. Iranian students massed for anti-American demonstrations at a time when U.S. diplomats were being held hostage in Tehran. Meanwhile, Ohio State every other Saturday in the fall deploys a massive security presence for home football games, where the crowd rises above 100,000, multiples past who might show up to protest Spencer. Events likely to cause hardship to passersby are well-advertised, and students know to avoid them if they wish. Such events, past and current, clearly created the same “material and substantial disruption to the work and discipline of the University” that Ohio State fears Spencer will bring but were allowed anyway.
And Ohio State knows things worked out smoothly last fall, in fact just days before the election, when the school welcomed white supremacist Milo Yiannopoulos to campus.
Ohio State can do it, they just want to be able to pick and choose when they do it. And that is wrong.
An institution cannot cite avoiding public disruption as the initial or sole reason to restrict speech. The problems of having Richard Spencer, or anyone, speak on campus are outweighed by the obligation to protect free speech. Getting rid of the speaker is expedient but unconstitutional. Maintenance of the peace should not be achieved at the expense of the free speech. It’s pretty much self-evident.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Punch Early, Punch Often – Smashing the Far Right
NOTE: The following is a rebuttal to my own article explaining how stopping speech you disagree with via violence is wrong. I am reprinting the rebuttal in its entirety and with permission. I received a lot of comments on what I wrote, and this one below is pretty typical, albeit without as much profanity and personal threats/insults as the others.
Jesus H. Jones,this infernal debate continues. Peter Van Buren, possessor of such a nice Aryan name and a defence so strident of Nazis right to free speech that he will probably not be in danger of imprisonment, execution or genocide if they win, has written a piece in The Nation as a riposte to Natasha Lennard’s article in the same publication.
Van Buren’s argument comes from the standpoint of the first amendment to the constitution of the USA, the one that protects, on paper anyway, the right to free speech, freedom of religion and freedom of the press.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Let’s stop here for a second and consider the words of that amendment. They look very nice, don’t they? But there’s a reason I said “on paper anyway”; Look closely and read between the lines. You’ve noticed haven’t you? First amendment rights have routinely been cast aside when they clash with the interests of the US American ruling class. People who agitated against the first world war were imprisoned for as little as printing pamphlets and newspapers or speaking in public, during the nineteen forties and fifties, people suspected of being communists were brought before the House Un-American Activities Committee, and now Trump wants Muslims to have to sign a register. So much for rights.
Poor people too have ‘first amendment rights’ but rarely get to use them in the way the Van Buren is advocating for Neo-Nazi mouthpieces. When was the last time you saw someone from the slums of Detroit being interviewed about their political views on national television or publishing pamphlets or writing newspaper opinion pieces? I am reminded of the words of Anatole France in Le Lys Rouge, “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.” The first amendment to the US constitution protects the right to free speech for rich and poor alike, but that means nothing to someone living in poverty, or someone being burned out of their home for being the wrong colour or for practicing the wrong religion.
In the article, Van Buren says that if you condone the act of punching a Nazi then you must condone the act of ripping a hijab off a woman’s head. That he considers these two things equivalent speaks volumes of the ‘moderate’ tendency to empty acts, and indeed words, of their meaning. Ripping a hijab off a woman’s head is an act of oppression. It says that this woman, who has said or done nothing to threaten anyone is a legitimate target for hatred and violence. Punching a Nazi on the other hand, is an act of self defence. Nazi’s are not just using words to get their point across, they are organising physical violence against people of colour, Muslims, LGBT folk and left wing radicals; They are actively threatening the lives of people who are different or who disagree with their world view. Their world view is to eradicate freedom in it’s entirety for the vast majority of human beings. That’s why they should be physically confronted, that’s why their movement must be smashed before it can wreak too much havoc.
He also reduces the fight against the Nazis in WW2 to a “70 year old struggle between nation states.” No doubt, the entry of various states into war against the Nazis was prompted by threats to their Imperialist hegemony – in particular the USA entered the war because of the Japanese attack at Pearl Harbour, but people fought in their millions against fascism, from well before the war in Europe broke out, specifically because of what Nazism and Fascism represent – midnight for the human race, the victory of unreason over reason, racial nationalism, anti-communism, or as Orwell put it “a boot stamping on a human face forever.” (Orwell meant authoritarianism in general – both right and nominally left).
If we don’t want to relive the horrors of Nazism, the racial laws, the genocide, the stamping out of all political freedoms, not to mention the war, that ravaged Europe in the mid 20th century, it is necessary to stamp it out in it’s infancy. It is a threat across the globe, here in Ireland the far right is small, but there is larger minority among us who will flock to them if they feel it is safe to do so. Until now they have feared to raise their heads above the parapet, and this is a good thing. When white nationalist movements have tried to go public, they have been physically beaten back. These actions protect the freedom of the vast majority of humanity. But now, in the wake of Brexit and Trump’s victory, the racists, the authoritarians everywhere are raising their voices. The comment threads in online publications are a cesspool of embryonic fascist thought. It only takes a small breakthrough for a far right organisation to rally these people behind its banner, and the likes of Peter Van Buren, and our own Irish liberal establishment, who enjoy debating fascists to prove their intellectual superiority, make those breakthroughs more likely.
In Britain, France, Germany, Austria, Greece and the USA, the far right is a tangible threat to the freedom of the vast majority of humanity. Constitutional rights won’t stop them, only an organised anti-fascist movement that is well organised, prepared to take the fight to the fascists, to snuff out their ideas in their infancy and keep fighting until their movement is back in the dustbin of history where it belongs. We will be harshly judged by the future generations if we let them rise again.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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