The First Amendment had a pretty good week.
In Matal v. Tam the United States Supreme Court unanimously held that a federal law prohibiting "disparaging" trademarks violated the First Amendment. Though the eight voting justices broke into two groups of four taking slightly different paths, their language was equally blunt. From Justice Alito:
The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.
And from Justice Kennedy, reaching the same result:
A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
Four of the eight justices endorsed this sound rebuke of the "hate speech is not free speech" trope:
Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting).
But the Supreme Court wasn't done. How committed is it to the First Amendment? So committed that it will uphold the rights of a convicted criminal — at least so long as the right in question is the right to free speech. In Packingham v. North Carolina the court unanimously held that North Carolina violated the First Amendment by prohibiting convicted sex offenders from visiting a wide variety of common websites. Though the judges used slightly different rationales to reach that result, they concurred that the state had not offered sufficient reasons to meet the applicable level of scrutiny. This — the Supreme Court rejecting a state's rationale to do things to a convict — is not a common occurrence.
But it wasn't just a good week. It's been a very good millennium for the First Amendment.
The modern Court has repeatedly and forcefully rejected attempts to narrow free speech based on new social norms or theories. In the crucial Stevens v. United States — dealing with a federal law prohibiting distribution of depictions of cruelty to animals like "crush videos" — the Court rejected 8 to 1 the notion that the government could create new ad-hoc exceptions to the First Amendment by "balancing" public interests against free speech rights. In Snyder v. Phelps, dealing with the despicable funeral protests of Westboro Baptist Church, the Court rejected 8-1 the proposition that ugly commentary can be punished through the ruse of "intentional infliction of emotional distress." In Reed v. Town of Gilbert, the Court unanimously rejected (through slightly different approaches) the argument that the government can ban entire subjects so long as it treats all viewpoints about that subject even-handedly — here, by rejecting a local law that prohibited political signs. Citizens United v. FEC is the odd man out with the bitterly divided 5-4 decision, but still came down strongly in favor of speech.
In short, the First Amendment is enjoying extremely strong support from the Supreme Court — arguably stronger and more consistent than any other constitutional right, and arguably as strong as the Court has ever been in favor of free speech. It's a golden age.
So why are so many people so pessimistic?
On the cultural side, we're mostly hearing stories of woe about free speech. Folks — and here I explicitly include myself — are emphasizing stories about intolerance, heckler's vetoes, censorship, and academic hostility to different viewpoints. Discussion of free speech is dominated not by recognition of how strongly modern courts protect it, but with stories of freakish intolerance at Evergreen State College and violent heckler's vetoes at Berkeley.
Why? Well, "everything sucks and we're doomed" is more interesting to write than "everything is swell." Portraying the academy as a hotbed of imbecilic progressive intolerance serves political ends. Pointing to young people acting like asses is viscerally satisfactory to old farts like me.
But there's substance, too. However clearly the Supreme Court recognizes free speech rights, they're no good if the government refuses to acknowledge them, as universities have effectively done by refusing to protect unpopular views from violence or hecker's vetoes. Justice Kennedy isn't there to tell Dakota McScreamyface to stop hitting me with a bike lock if I engage in crimespeak. As Judge Learned Hand said in his "Spirit of Liberty" speech more than 70 years ago:
I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.
The Supreme Court is upholding the black letter of liberty, but are Americans upholding its spirit? When college students, encouraged by professors and administrators, believe that they have a right to be free of offense, no. When Americans hunger to "open up" libel laws or jail flag burners, no. When our attitude towards the hecker's veto becomes "let's do it to them because they did it to us," no. Not only is speech practically impaired, but in the long term the cultural norms necessary to sustain good Supreme Court precedent are eroded.
We should all keep talking about threats to free speech. But the discussion should be seasoned with recognition of how strongly its legal underpinnings are right now.Copyright 2016 by the named Popehat author.
I've got a piece up at NRO about about how nobody — even Trump-haters like me — should be comfortable with federal prosecutors' broad power to catch people not for underlying misconduct, but for reactions to the investigation.Copyright 2016 by the named Popehat author.
Last night a popular alt-right troll disrupted a controversial modern production of Julius Caesar staged with a Trumplike figure in the lead role. Some people are incensed at this production and arguing that it depicts and encourages the assassination of Trump himself, and that fury has built to the point that random theaters with "Shakespeare" in their name are being threatened by imbeciles across the land. Never mind, for the moment, that Shakespeare's plays are shot through with blunt commentary on the politics of his time, or that staging Shakespeare to comment on contemporary politics is common and nearly as old as they plays themselves, or that the same thing has been done with an Obama-like Caesar with very little fanfare, or that the entire point of the play is that Caesar's assassination is self-indulgent folly that leads to disaster. People are angry.
One angry justification for disrupting the play goes like this: liberals do this to conservatives, so this is fair play. We're just imposing liberals' rules on liberals. Liberals disrupt conservative speakers on campuses all the time, and if that's okay, why isn't this okay?
This way lies madness and destruction, the excuse to abandon everything we believe. We follow our principles because they're right, not because everyone agrees with them. We follow them in adversity and in the face of opposition and even injustice. We give due process — a jury trial — to a cop who shot a motorist even if a very good argument can be made that the cop executed the motorist without due process. We defend the free speech of Nazis and communists who would deny it to us if they had power. At one point, I would have been able to say that we don't torture people even if they torture.
The "eye for an eye" theory of respecting free speech is particularly pernicious because it represents the worst sort of collectivism, something the principled Right ought reject. Note that people who say "apply the Liberals' own rules to the Liberals" aren't disrupting, say, an Antifa rally or the meeting of some Berkeley student group that advocated shutting down a conservative speaker. They're disrupting other people entirely, on the theory that everyone they deem part of the nebulous collective "Liberal" deserves to be silenced because someone else in that nebulous collective engaged in silencing behavior. The actors and playgoers in New York, under this theory, deserve to be shut down because they stand responsible for the acts of all "liberals" everywhere. (The suggestion that anyone going to see Julius Ceasar must be a liberal does not reflect a very healthy self-image amongst the Right.) This closely resembles the logic of hecklers on college campuses, who argue that nearly any conservative speaker stands responsible for Klansmen and neo-Nazis and overt bigots everywhere. It's contemptible and can be used to justify doing nearly anything to nearly anyone. It's the sentiment behind saying American Muslims may fairly be oppressed because Christians are oppressed in Saudi Arabia — even while celebrating our nation having greater freedoms than Saudi Arabia.
And yet, the "we're just applying their rules to them" theory has some heft. It's not because of the nasty, disruptive little totalitarians themselves. Antifa scum and pseudo-educated campus thugs are not legitimate foundation for any adult's philosophy. No, the bit of plausibility comes from the reaction of people in authority, people who ought to know better, people whose conduct is somewhat more fairly attributed to a larger political groups. A few hysterically censorious kids screaming for a professor's termination for crimethink do not threaten the foundations of free speech, but Yale lauding them does. Relatively few thugs disrupting a speech and even physically assaulting a professor don't call into question the culture's support for free speech, but Middlebury offering weak slaps on the wrist and shrugs for that violent behavior does. A violent mob in Berkeley does not undermine the legitimacy of free speech doctrine — a mob is a mob — but Berkeley's timorousness or indifference in the face of violent censorship does. Students furious at a professor disagreeing with them don't call into question the nation's commitment to freedom, but state officials refusing to guarantee a professor's safety do. In short: the regrettable behavior of officials who have failed to stand up to disruption of speech are the people most responsible for legitimizing further disruptions of speech, whoever commits them.
But we can, and should, do better. Commitment to free speech as an American value — as an element of American exceptionalism — has always required tolerating evil and injustice and idiocy. We don't refrain from disrupting speech because the speakers deserve it, or because we've been treated fairly by the speakers or their allies. We refrain from disruption — and ought to punish those who disrupt — because free speech is the necessary prerequisite of a society based on individual rights and freedoms. It's the right that's the gateway to all other rights. Shrugging and abandoning it as a value is an abandonment of our commitment to all rights.Copyright 2016 by the named Popehat author.