Tag Archives: First Amendment

‘Viewpoint tolerance is not and cannot possibly be some sort of absolute value’

Because the First Amendment affects public universities differently, I won’t compare my place of employment with Middlebury College, a private Vermont college whose website is benefiting from self-righteous examples of click bait written by conservative writers and self-identified liberal Frank Bruni, a New York Times columnist with even less talent for polysyllabic handwringing than colleague David Brooks. But Paul Campos offers points that need considering:

Universities are ongoing exercises in massive content discrimination, and indeed have to be by their very nature. The notion that universities should be open to all viewpoints is so ridiculous that it’s hard to believe anyone would defend it, except at the highest level of abstraction, which is the level at which such defenses invariably take place.

Universities should not be open to the viewpoints of Holocaust deniers or Sandy Hook truthers, to pick just a couple of a basically unlimited number of possible examples, because such views are false, and false views should not be given a forum within institutions dedicated to the pursuit of truth.

But where do you draw the line? You draw it right here, every day, that’s where. (“Right here” being within the university itself). But who should have the authority to make decisions about what constitutes a controversial view that deserves a hearing, and what is misguided nonsense, or a noxious calculated lie, or a paranoid delusion? We should — we being the members of the scholarly community — BECAUSE THAT’S LITERALLY OUR JOB, or part of it, anyway.

Sorry for shouting but come on.

The point is that, within the university at least, viewpoint tolerance is not and cannot possibly be some sort of absolute value. It’s a pragmatic tool in the pursuit of truth, and, like all such tools, it has its limits.

Milo Yiannopoulos or Charles Murray’s supporters, financial and otherwise, have no interest in Furthering Intellectual Debate: they know how college students will respond, then use the response as a way to criticize the Intolerant Left and raise funds. I would distinguish between the invitation of Murray and, say, Alan Greenspan, a satrap who holds views that I find repulsive and dangerous but have formed part of liberal American economic thought since the Lochner era and beyond; if we’re going to disqualify Greenspan, it must be on the basis of his youthful admiration for terrible and influential writer Ayn Rand, in the same way I would protest Condoleeza Rice’s commencement addresses because no college student should be subject to commencement addresses on a morning or afternoon best spent drinking on your parents’ dime.

Gutting Florida’s open records law, bit by bit


And of course this bipartisan bill is under consideration in Florida, the state with the prettiest name, because why keep something as singular as our sunshine law intact?

In a debate that could reshape how the state handles its Sunshine laws, Florida lawmakers are swiftly advancing a bill that proponents say will crack down on “economic terrorists” that are abusing state law by extorting money from governments through frivolous and misleading public records requests.

But opponents say the solution is an overreaction that will “gut” the state’s open records laws and permanently cloud its Sunshine Law tradition. They warn that the bill removes the only tool the public has to seek redress when government officials violate the state’s public records laws and have offered a compromise that is being rejected.

Florida’s Constitution grants the public a right to access public documents, but the debate over how to crack down on a small number of abusers has created a deep divide with most legislators, who are themselves elected officials, siding with other elected officials, resulting in near-unanimous support of the bill in two House committees and one Senate committee.

The measure, HB 1021 sponsored by Rep. Greg Steube, R-Sarasota, and SB 1220, by Sen. Rene Garcia, R-Hialeah, removes the requirement that judges award attorney fees when state or local government violates the state’s public records law.

The law will change “shall” to “may,” transferring the balance of power to judges, not citizens. For those who think, well, so what, consider that attorneys support citizen demands for records with the expectation they get paid. An example:

Susan Hewlings’ dog bit a neighbor’s dog six years ago. Hewlings immediately took the injured dog to the vet and paid all the bills. Hours later, Orange County Animal Services showed up and wanted to confiscate her three dogs, including two retired service animals.

Hewlings requested all the public records relating to the case, and the county refused to provide them. She sued, a court ruled in her favor, but a judge said she wasn’t entitled to attorney’s fees, which would have been about $5,000.

Five years later, the bill came to $118,000. “If this legislation had been in place at the time, we would have been dead in the water from the beginning,” Hewlings’ attorney Michael Kest told the Tampa Bay Times. Classic chilling effect scenario.

Tuning in only ‘when people have reached a breaking point’

One of the more cogent responses to the kerfuffle in Yale and the comm arts professor’s calling for goons at the height of the University of Missouri’s demonstrations: On point:

The Yale philosopher Christopher Lebron has theorized the ways that privileged whites often subscribe to legitimizing myths in order to maintain their self-conception as good people in a racist society. Presenting oneself as a martyr to the cause of a cherished ideal like freedom of speech is one way to do that. It simultaneously serves to discredit the people calling for change — including, in this case, the resignations of the Christakises from Silliman College. (Not just on the basis of the email, but because of growing discontent with their narrow focus on freedom of speech to the exclusion of actually fostering engagement among Silliman residents. In resigning as masters, the Christakises would remain Yale faculty.)

I train students to act like Tim Tai: to calmly remind the unwilling about his First Amendment right to take photos. As a government employee, I can no more order student media employees to remove a headline I dislike or insist they show me proofs before sending the publication to print.

But I recognize that freedom of speech means little to those men and women whose own civil rights have been violated, in ways small and great. Frederick Douglass reminded white America that the Constitution was theirs.

Moreover, we often tune into the action only when people have reached a breaking point. And then we wonder why they are yelling, ignoring the history of the crescendo.

Such is the case at Yale. Black students have testified to daily experiences of chronic, structural racism. But it is not the sort of racism that is generally considered newsworthy. It is not the sort of racism that attracts the attention of a largely white audience. There are no black bodies on the pavement to focus on. The violence being done is subtler — and often, as Dotson argues, epistemic.

When a group of adults is dismissed as children, we ought to be highly suspicious that this sort of violence is at issue. The idea that oppressed and marginalized people should “grow up” has a long and ugly history. Women have frequently been dismissed using this stereotype, for instance. And the thing about children is that it is not always possible, nor even desirable, to reason with them. Sometimes they need to be given incentives, negotiated with, or managed — and, in some cases, simply quietened. Calling the student protesters “coddled” serves to excuse those touting freedom of speech as an ideal to spurn it in reality.

I don’t expect students to know First Amendment protections. I do expect educators who participate to show them. I don’t expect the grotesque behavior of a professor to become the story, which means that in this climate of course I do.

University of California and free speech

Meanwhile on the free speech front the University of California struggles to write policies that further restrict speech against foreign governments, namely Israel. As the Foundation for Individual Rights in Education notes, “it’s not up to public university officials to decide what criticism of a foreign government is legitimate or forbidden, and, in turn, to demand everyone at the university abide by their perceptions of ‘legitimate criticism.'” But Dianne Fienstein’s husband, as usual the chilling effect in human form, has warnings:

I should add that over the weekend my wife, your senior Senator, and I talked about this issue at length. She wants to stay out of the conversation publicly but if we do not do the right thing she will engage publicly and is prepared to be critical of this university if we don’t have the kind of not only statement but penalties for those who commit what you can call them crimes, call them whatever you want. Students that do the things that have been cited here today probably ought to have a dismissal or a suspension from school. I don’t know how many of you feel strongly that way but my wife does and so do I.

This is a UC regent threatening to unleash his spouse should any dissent occur. Suddenly I’m reminded of Feinstein’s worst moments.

The expression of contemptible ideas

I’m not a constitutional lawyer but as an employee of a public university I thought it was clear that it can’t expel students for racist speech. Oklahoma University president David Boren did so earlier today after public outrage grew over the grotesque chanting of Sigma Alpha Epsilon members caught on YouTube and to which I won’t linkEugene Volodkh:

1. First, racist speech is constitutionally protected, just as is expression of other contemptible ideas; and universities may not discipline students based on their speech. That has been the unanimous view of courts that have considered campus speech codes and other campus speech restrictions …

UPDATE: The university president wrote that the students are being expelled for “your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others.” But there is no First Amendment exception for racist speech, or exclusionary speech, or — as the cases I mentioned above — for speech by university students that “has created a hostile educational environment for others.”

2. Likewise, speech doesn’t lose its constitutional protection just because it refers to violence — “You can hang him from a tree,” “the capitalists will be the first ones up against the wall when the revolution comes,” “by any means necessary” with pictures of guns, “apostates from Islam should be killed.”

Volodkh leans right if not libertarian, so bear this in mind. I don’t know OU’s student code of conduct but I imagine it has guidelines about how to punish violators without expelling them: honor codes and the like. I’d also imagine these students might have a legal case.

‘Censorship directed by the state’


It neglects the most prominent recent example of this country shutting down free speech. I’m talking about the repression of public protest movements, most notably the violent dismantling of Occupy Wall Street encampments, a censorship directed by the state.

The right to peaceable assembly is as much a part of the First Amendment as the right to free speech, and in fact they intersect. In 2011 the tens of thousands of Occupiers across the country had no access to a printing press or real estate in a newsweekly. So they used their collective voice, basically all they had to use, to call attention to an economic system that doesn’t work for the 99 percent. In their view, the best way to maximize the reach of that opinion was through an ongoing protest, using public spaces to register dissent.

This was not welcomed as a new addition to the public debate, or an example of boldly exercising the sacred, inalienable right to speak out. In fact it was immediately seen as a problem to be solved. The FBI and the Department of Homeland Security gathered intelligence on Occupy protests from even before it began, coordinating this surveillance with local police nationwide and even the New York Stock Exchange and private businesses. City councils subsequently passed a host of new laws, presented as protections for health and safety, to criminalize assemblies and justify evictions from encampments.

Case in point: this incident at my university three years ago. Charges were dropped, but chilling effect? Complete.

‘The point of terrorism is to make us defeat ourselves’

I unfriended a couple of people on Facebook this weekend — louder liberals than yours truly — for reverting to Bush voters in the 2002 midterm elections.

Our society is soaked in bloody mass violence. And yet each time it happens we go about our daily lives without succumbing to fear. This is not to say that intent doesn’t matter, it does. Some people are crazy, some people are zealots, some people are misguided and some are just cruel and homicidal. But I would guess those designations apply just as well to the Islamic extremists who perpetrated that horrific mass killing in France as they do to our homegrown variety of mass killers. They are not super-villains with extraordinary power. They are weak, marginalized misfits who found a reason to act out their violent impulses. Rationally, the threat they pose is little different than the workplace killer who comes into an office and mows down his co-workers — something that happens with frequency in America.

Again, the point of terrorism is to make us defeat ourselves. If we can deal with the fact that heavily armed lunatics walk America’s streets every day ready to mow down strangers for any reason at all without losing our grip, we should be able to keep our heads about us when a bunch of misfit religious fanatics do the same thing.

Which is why men and women charged with terrorist acts should be tried in civilian courts and if convicted put away in maximum security prisons, not carted off to Egypt or Guantanamo to be waterboarded; and why we don’t suspend the Bill of Rights because Americans die.