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?

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