Jun 15 2017

What Speech is Legally Protected?

free-speech2Ken White, a first amendment attorney and proponent, has an excellent op-ed in the LA-Times about the law and free speech. It’s a necessary read for anyone interested in the ongoing debate about the role and limits of free speech in America.

The article is framed around pointing out common free-speech tropes, which is a good way to communicate about such topics. However, the scope of the article doesn’t really address the debate itself, it only provides a solid logical and legal framework for the debate. This is necessary to get the discussion to the point where it needs to be in order to address the actual issues, without getting distracted by legal myths.

The First Amendment

The First Amendment protection of free speech is based on the principle that a free and open society requires individual citizens to have the space and comfort to express their opinions without fear of oppression. White points out that the courts have generously interpreted this right over the years. Essentially all speech is protected except for very specific exceptions, which he lists as: “obscenity, defamation, fraud, incitement, true threats and speech integral to already criminal conduct. ”

You will notice that “hate speech” is not on the list. The courts have recognized that any speech which might be part of political expression must be protected, and that the speech which most needs protection is that which some or even most people will find objectionable.

Interestingly, the go-to example of not-protected speech that most often comes up, crying “fire” is a crowded theater, is actually protected. The current precedent is that the “incitement” criterion must be direct and immediate – “You, go kill that guy right there,” Indirect or vague incitements, or speech that might inspire someone to do something illegal or harmful, are still protected.

White also notes that simply pointing out that not all speech is protected doesn’t get you very far in a debate about free speech. It is often necessary, however, when free speech advocates fail to recognize this simple and uncontroversial fact. Essentially, it’s a trope to argue that all speech is protected (it isn’t, there are specific exceptions), and it is also a trope to point out that there are exceptions in order to imply that the specific speech being discussed may therefore not be protected.

Neither point actually addresses the question – is this specific speech protected or not?

Free Speech vs Academic Freedom

This is where’ White’s article leaves off, but where most discussions of free speech actually begin. Sure, it is important to have a clear understanding of what legally protected speech is if you are going to use that as a basis for discussion. However, most of the current public controversies over free speech are not strictly First Amendment issues. Let’s take speech on campuses, for example.

The regulation of speech even on public universities has a different standard than speech in general. This is because colleges and universities have other recognized duties that may be at cross purposes with freedom of expression. This is a good summary, but here are the highlights.

The Supreme Court has established a solid precedent for free speech on campuses in 1957:

“In 1957 the U.S. Supreme Court, in a plurality opinion by Chief Justice Earl Warren, held in Sweezy’s favor and in so doing authored a ringing endorsement of academic freedom. “The essentiality of freedom in the community of American universities is almost self-evident. … Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding, otherwise our civilization will stagnate and die.””


“According to case law, speech on matters of public concern is constitutionally protected, while speech on internal institutional matters is entitled to considerably less protection. The justices have accepted that a university has a legitimate need to maintain orderly operations and to regulate its own affairs, and that its duty to do so may outweigh the employee’s free-speech interests. Furthermore, the Court has concluded expressly that academic freedom protects neither intimidating acts, actual threats nor disruptive acts interfering with an educational program.”

This is where the debate is – where is the line between protecting academic freedom (which is based on free-speech protections) and the duty of the university to provide a safe and nurturing environment for all students?

Specifically, the notion of intimidating and disruptive speech is most salient. To use an extreme example to establish the basic principle, what if a student group comprised of white supremacists decided to stake out a part of their college campus in which most students will have to pass in order to get to class. Every day they brandished signs and shouted speech insulting to African-American students, filled with racial epithets and expressions of their political opinion that black students should not be at the school, or indeed should not be educated.

That speech is political and is absolutely protected under the First Amendment. They have every right to express those opinions, as disgusting as they may be. If you are a First Amendment purist, there would be no legitimate reason for the college to restrict such speech.

But it should be obvious that such speech would be intimidating and oppressive to black students, to a degree that would exceed any typical and reasonable person’s ability to tolerate. Saying the students should be “thick-skinned” or counter with their own speech doesn’t cut it. In this case the courts recognize that the college or university has a legitimate duty to protect the environment of their school so that students will not be forced to face such daily abuse just to get to class.

Universities also have a duty to maintain quality control. They are under no obligation to allow rank pseudoscience to be taught at their school, or to allow the academic reputation of the school to be used to promote pseudoscience or grossly substandard scholarship.

Once you recognize that schools have a legitimate duty to maintain academic quality and an atmosphere conducive to learning, and that these concerns need to be balanced with academic freedom – then finally you get to the real questions, where do you draw the line, and how do you best enforce that line?

That requires a nuanced discussion that recognizes legitimate principles on both sides, something too rarely seen.

My sense from reading what many universities have publicly expressed on this issue is that they are largely engaging in a thoughtful and balanced discussion of this issue. What has made the news are the most dramatic cases, but what is deemed newsworthy should not be confused with being representative.

I think it is clear that violently demonstrating because you don’t like a speaker invited by a legitimate student group with whom you disagree ideologically, is not a valid approach to the issue. I do think a school has the right to decide who gets to lecture there and get paid for their lecture, but they should consistently apply whatever internal rules they have. If they allow student groups to pick their own speakers without review, then they have to live with that policy.

What seems like a simple solution is to have an office that reviews proposed speakers to make sure they are appropriate prior to formal invitation. This process too should have formal, thoughtful, and balanced guidelines, with an eye specifically for not discriminating against any ideology. Ideology alone should not be a basis for rejecting a speaker.

Further, if students want to express their vehement disagreement with the opinions of an invited speaker, then go ahead. Hold up signs, go to the talk, listen thoughtfully, then ask pointed questions. Write a detailed rebuttal in the school newspaper. Invite a rebuttal speaker.

Protesting to have the speaker you did not invite yourself disinvited only plays into their hands and undermines your own credibility, in my opinion.

At the same time it is counterproductive to dismiss all concerns about freedom from real intimidation and oppression as being infantilized and needing a “safe space.” Taking an extreme position is easy, however, and meets our powerful desire for simplicity and control.

But again, this is exactly where the discussion should be. What are the details of how best to balance academic freedom with freedom from intimidation and oppression?

20 responses so far

20 thoughts on “What Speech is Legally Protected?”

  1. Charon says:

    I think this is a pretty good take on the issue. At the process level I’m not entirely sure how easy it would be for every school to have “an office that reviews proposed speakers”, however. The vast, vast majority of invited speakers are uncontroversial, but it may require discipline expertise to determine whether or not they are controversial or upholding academic quality. And while the very occasional speaker is quite well known – Ann Coulter, perhaps – the large majority of them would be unknown to people working in this office and require lots of work to learn about (someone from the local skeptic society, or a local amateur astronomer, etc.).

    It might help avoid a few of the high-profile cases we’ve seen recently, but think of that tiny handful of cases in the past year, and now weigh that against new administrative bloat at thousands of universities… it’s not an obvious solution, and it’s definitely not simple (or cheap!).

    It’s also not clear to me who would want that job. They would be the person to take the blame if an approved speaker leads to mass protests or violence. They would also take the heat from students, community members, and legislators (at public schools) if they blocked politically or culturally controversial figures (even on solid grounds of academic quality). You really think the university president or trustees would stand behind them in such circumstances?

  2. BBBlue says:

    Won’t vouch for it’s accuracy, but I found this to be interesting: https://www.thefire.org/resources/disinvitation-database/

    According to those data, from 2014 to the present, 36 of 42 disinvitations from college campuses came from the Left (Milo is a big part of that). Before 2014, the balance between Right and Left does not look as lopsided, although I didn’t run the numbers for that period. Of course, disinvitations are not the whole picture. How many opinions are not heard on campuses because people don’t want to subject themselves to the abuse?

    I agree that colleges and universities must maintain a suitable environment for learning, and so it is not that they should allow speech that incites violence or oppression, it is that the standard for determining what will incite or oppress is sometimes not reasonable and in those cases is set by activist students, teachers, and administrators rather than by rational folks who make an honest attempt at being objective and unbiased.

    I am a bit on the fence about NYU students shouting down a right-wing provocateur like Gavin McInnes as part of his intent seems to be to elicit those emotions from the audience, but there is no excuse for shouting down and acting violently towards someone like Charles Murray or disinviting John Cornyn. Listen and challenge as Steve suggests, but don’t silence.

  3. Banzai Otis says:

    Great article Steve. I think the tendency to ignore nuance/spectrums, and instead argue from tropes and straw men, gets in the way of a lot of important discussions. The abortion “debate” is another excellent example. I scare quote it because in a real debate you’d have people arguing over where exactly the line should be drawn. Instead, like with free speech, we have a whole lot of moral posturing and question begging. It’s refreshing to see someone trying to pull two sides toward discussing the actual substance in the middle!

    @BBBlue Another concern with a list like that, even if it’s put together reasonably well, is we still have the problem of self-selection in the speakers themselves. Recently we’ve seen a bunch of situations where some speakers are actively trying to get dis-invited, or to give the impression that they were at least. If I’m running around a neighborhood trying to get myself punched, and finally find someone dumb enough to do it, it’s hard to draw conclusions about how violent people in that neighborhood are, you know?

  4. EvanHarper says:

    > the go-to example of not-protected speech that most often comes up, crying “fire” is a crowded theater, is actually protected

    This is not what the op-ed says and it is not true. Yes, a lawyer like Ken will insist on pointing out that yelling “fire” if there is an actual fire, or you think there’s an actual fire, or any number of other circumstances is legal; but the clear implication is that yelling “fire” when you know there is no fire is not protected speech, which is true. Ken doesn’t like the “fire in a crowded theatre” trope because it was historically misused to apply to very different kinds of speech acts, but the literal act of maliciously inciting a panic is not protected First Amendment activity.

    This op-ed is a shorter and somewhat less nasty variant of one Ken has already published himself; I appreciate that it’s more narrowly focused on U.S. law, because Ken’s preferred version (“How To Spot And Critique Censorship Tropes In The Media’s Coverage Of Free Speech Controversies”) uses a vaguely conspiratorial framework where writing cliches that Ken doesn’t like are interpreted as an insidious pro-censorship media agenda and assumes without argument that the current state of U.S. law is morally correct and spends a lot of time berating people who didn’t make legal arguments for being purportedly proven wrong by the law. I agree that using a phrase like “the line between freedom of speech and hateful rhetoric” is bad, but it’s bad because it’s vague and open to misinterpretation, not because it presumes that “hateful rhetoric” is unprotected by the First Amendment. It can just as easily be interpreted as meaning “the line between socially legitimate speech, even if it might offend some people, and rhetoric that private citizens, media & academic gatekeepers, etc should treat as unacceptable.” This use is parallel to that of people who respond to criticism of their opinions by invoking “free speech.”

  5. BBBlue says:

    Banzai- Which is why I noted that Milo was a big part of the 2014-2017 data; the data looks fair in that it does not try to hide the fact that provocateurs make up a disproportionate number of disinvites, as one would expect.

    No doubt people like Milo and Gavin want to stir up controversy, and probably consider disinvitations to be badges of honor, but I don’t think being fed up by the likes of such people explains the hatred and violence directed towards Charles Murray, and I also don’t think that explains the violence by antifa groups who seem to be looking for any excuse they can find to justify their violence.

  6. Creeping Malaise says:

    Yelling ‘Fire!’ in a crowded theatre would surely qualify as reckless endangerment, and be prosecutable as such.

  7. Malaise – I don’t think so. That is the older “imminent danger” standard which was overthrown in 1969 and replaced with a “directly incite immediate and specific criminal activity and likely to cause it.”

    See: http://civil-liberties.yoexpert.com/civil-liberties-general/is-it-legal-to-shout-%22fire%22-in-a-crowded-theater-19421.html

  8. Lightnotheat says:

    One useful way to frame this debate is in terms of restrictions on speech based on content vs restrictions of quantity, venue, etc. Irrespective of quantity. Regarding restrictions based on content I would be way over on the libertarian side of the spectrum. I don’t see how you can allow any but the most narrowly defined restrictions of actual content without opening the door to widespread censorship, because, who decides what content is too “harmful” or “hateful.” I might say it’s singing the praises if Nazi gas chambers, but someone else might say it’s advocating atheism or legal abortion. But restrictions of quantity, venue, etc. are very different and I think it’s unreasonable for libertarians and others to call these “anti-free speech.” First of all, people are still being allowed to say whatever they want, just not whatever and whenever they want. The racist students in Steven’s example can still express their views in pamphlets, in their homes, etc. Secondly, saying restrictions on the amount of speech, such as campaign spending limits, are anti-free speech amounts to saying some people have more freedom of speech than others, since some people have more money to spend on getting their speech heard than others. Thirdly, some speech can drown out other speech and thus having no restrictions on venue or amount can often DECREASE the diversity and breadth of speech. For example, not allowing someone to blare his political manifesto on loudspeakers at a caucus where different factions are trying to sway voters is totally reasonable and PRO free speech.

  9. Charon says:

    After learning a little more about the Coulter/Berkeley situation, I want to add an additional complication. “Invite a rebuttal speaker” sounds like a great way to respond… until you realize speakers like Coulter (high-profile right-wing provocateurs) receive substantial funding from outside groups (in her case, the Young America’s Foundation). I can think of no comparable funding on the Left, or indeed even comparable left-wing speakers to invite. (The closest I can come is perhaps Al Sharpton or Keith Olbermann, but those are still a ways from Coulter.)

    This is not an easy issue, and there are not easy solutions. I think at least we could all agree that violence has no place here, and is in any case counterproductive to the cause of those violently protesting.

    At least the “invited speaker” debate is interesting. Those who claim free speech violations because geology departments won’t hire a young-Earth creationist, for example… *sigh*. That’s clearly a situation where academic quality wins over free speech. We professors pick and choose what our students see all the time, but it’s not called censorship, it’s called curation. It’s literally our job.

  10. Lightnotheat says:

    “Wherever and whenever”, “singing the praises OF”

  11. Creeping Malaise says:

    Dr Novella –

    Interesting. I didn’t know that.

    I wonder if a court would overturn the revision if someone were actually tried for yelling ‘Fire!’, and causing a panic resulting in death and injury.

  12. YTalyansky says:

    Interestingly, the “fire in a crowded theater” trope commonly brought up as an example of unprotected speech began as blatant political censorship and has been legally debunked. It was given by Justice Oliver Wendell Holmes in 1917 as part of the Espionage Act when he was overseeing the case of a socialist who handed out anti-war pamphlets. Holmes argued that free speech was not absolute (the theater fire was an ancillary argument given as a theoretical example), and that the pamphlets presented a “clear and present danger” to the public good. This ruling was overturned in 1969 by Brandenburg v. Ohio, which revised the definition of unprotected speech to direct incitement of violence and has held strong since.

    To date, speech that does not meet this very specific definition is protected, and in my humble opinion should remain that way. As far as free speech on campus goes, having unlimited and unconditional access to a public speech platform such as a campus is not necessarily a right protected under the First Amendment, but the deplatforming of a speaker invited by a recognized campus group via “heckler’s veto” certainly is an example of a First Amendment violation. I am of the opinion that modern American campuses are severely lacking viewpoint diversity in that any individual right of progressive (including Libertarians and Classical Liberals) are often denied opportunities to speak or outright harassed. The case of Professor Weinstein at Evergreen State College is the most recent example, and I think he would be a very interesting and reasonable person for the SGU to interview on this subject.

  13. JohnW says:

    “See: http://civil-liberties.yoexpert.com/civil-liberties-general/is-it-legal-to-shout-%22fire%22-in-a-crowded-theater-19421.html

    Not sure what to make of this as an authoritative perspective. Who is Ryan, and what makes him an expert in civil liberties? Seems to me that the outcome of the FIRE shouting would likely factor into whether or not it is interpreted as a crime. If a panic ensues and people are hurt, good luck with the first amendment defense imho.

  14. FuzzyMarmot says:

    “At the same time it is counterproductive to dismiss all concerns about freedom from real intimidation and oppression as being infantilized and needing a “safe space.” Taking an extreme position is easy, however, and meets our powerful desire for simplicity and control.”

    Right on! Thanks for a great piece that expresses the complexities and nuances of free speech issues.

    I think that the media has been sensationalistic in picking out extreme examples of conflicts around free speech on college campuses. In general, college campuses are places of vigorous and enlightening exchanges of ideas.

  15. BillyJoe7 says:

    On the other hand, the extreme examples provide lessons in how to do it wrong and counterexamples to how to do it right.

    And I would be loathe to use the phrase “safe places” because, like “microaggressions”, it has been hijacked by the regressive left and has become synonymous with how to do it wrong.

  16. FuzzyMarmot says:

    BillyJoe7: I don’t know what you mean by the “regressive left”. I also don’t know what you mean by “doing it wrong”. Do you spend much time on college campuses? I’d encourage you to attend some public lectures and get a feel for the actual intellectual climate there. I think you’ll be pleasantly surprised.

  17. Pete A says:


    Here’s my understanding of the term “regressive left”:

  18. BillyJoe7 says:

    Yes, Google is your friend. 🙂

    I simply meant that the extreme examples can show you what not to do when organizing speeches on campus. If you want to avoid similar problems look at these extreme examples and learn from them. I made this point against your implication that these extreme examples can be safely ignored because they are a small minority and that mostly everything works out okay. Bad ideas can spread and we need to be constantly aware and guard against them.

    There are campuses where staff and students of the regressive left persuasion have taken root and the result has been an unmitigated disaster. Speakers have been specifically not invited. Speakers have been invited and then disinvited because their views don’t fit the mindset of these staff and students. Speakers that have been invited have been verbally abused and physically attacked by students. They use “safe places” and “microaggressions” (and “cultural relativism”) as ammunition.

  19. Nick5138 says:

    I have been, what I refer to as, a market gardener for the last six years and this will be my last season for several reasons, but one major factor has been my acceptance of the massive inefficiencies in most small scale and “organic” agriculture. I have been to many local foods conferences and even gave a talk at one. In general Steve, your criticisms of boutique or organic agriculture are spot on from a logistical standpoint, however I think it is important that you realize that a lot of people participating in this kind of agriculture are true believers. I have spent a lot of time talking with producers about GMOs and they are just not willing to try to understand the reality. My stances on GMOs and the organic nonsense has made me out cast in the local food community around my small town. On the flip side, customers don’t really seem to care. When people ask me if I “spray” and I take the time to explain my process to them 98% of the time they buy my product. Now, I live in a more conservative region and I realize that my experience can not be generalized but I believe the organic and local food fad has run its coarse. To sum up, I would recommend you concentrate on the benefits of biotech and modern food production rather than impugn the motives of organic farmers, no matter how right you are.

  20. rezistnzisfutl says:

    As someone who has been watching all this unfold ever since ElevatorGate, free speech is one element that has taken some disturbing turns, IMO. Namely, the willful and active suppression of free speech. While it can be argued that there are certain instances where true dangers of public safety or oppression might warrant limitations, again I echo what BBBlue suggests that in the past few years it’s been mostly one-sided, and it’s only gotten worse with ever escalating actions. So much so that many on the left have been recently speaking FOR those who actually have opinions they oppose, not because they agree with the opinions but recognize that their ability to express them is important, perhaps sacrosanct. They recognize that the very freedom that can so eagerly and readily be taken away from those they oppose, can at any point be taken away from them as well.

    Campuses IS a good example because they’re often the breeding grounds for such movements, nearly always to the left. What we very rarely hear is, why is that? It’s easy to point to platitudes like fighting oppression or for marginalized groups, but is that what’s really going on here?

    Campuses should be places of bleeding-edge ideas, where the free exchange of ideas, and more importantly, diversity of opinions, should be allowed to flourish. Those ideas and opinions should then be examined rationally and, as much as possible, objectively. It means putting people out of their comfort zones where often a good deal of learning takes place. That’s not what’s going on right now. What’s going on right now is that one side is allowed to have pretty much carte blanche on the narrative while the other doesn’t feel free to speak their minds, no matter how diplomatic and amiable they are in their dissent, for fear not only of being dog-piled by their peers, but possibly losing grades or even being accused of something that will get them expelled from school, maybe even grab some headlines.

    We see people who aren’t anything of the sort being branded racists, misogynists, phobics, and Nazi’s just for having a political opinion, even one opinion, that isn’t in line with what is expected. Even professors aren’t allowed to bring up certain topics for fear of losing their positions.

    No one seems to be asking why people like Milo or McInnes are provocateurs. Just about anyone who mentions this likely has not actually watched any of their previous interviews, panels, or content. Before all this, they were civil, well-spoken, rational, and reasoned. You didn’t have to agree with all that they said to see all this.

    They have become that way because things have gotten so absurd – they have become parodies of how things are now, caricatures. These people aren’t allowed to have a word edgewise because most of the time they’re shouted down before they have a chance to speak, if not denied the opportunity to speak at all. For myself, I have yet to see them actually be racist or white supremacists, or otherwise utter anything even remotely to that effect other than them wholly denying they are those things. No one is protecting anyone by denying them a platform, what they’re actually doing is getting people to wonder what the fuss is all about and making the activists who started the fuss look like puerile fools, not strong and educated people.

    Universities should not be that close-minded nor should they coddle students so much that they wilt at the first sign of opposition, even when most of the time the opposition they claim to perceive is made up. Most of the time, anymore the claim of harm someone says they receive by someone else’s speech is nothing more than a weapon they’re wielding used to silence the political opposition, so that only that person can have a monopoly on the narrative, and be as bilious as they want (if you do the gender or race swap test on any given article, this is often made readily apparent). While it’s one thing to discourage and even limit actual oppression, it’s another to simply claim oppression where none exists, write policy based on that claim, all with the actual intent of denying the political opposition a platform and punishing those who have dissenting opinions.

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