Yaki, who now holds a significant position in the framing of our institutional vision of civil rights, was a former senior adviser to Rep. Nancy Pelosi, and member of the San Francisco Board of Supervisors. For those counting political affiliations, this should make it clear.
The issue under discussion was whether college age youth, in light of the Supreme Court’s holding that their brains are still developing and therefore should not be subject to the death penalty, are not similarly particularly vulnerable to harm from hurtful speech such that free speech should take a back seat to campus speech codes designed to protect them.
COMMISSIONER YAKI: But it has nothing to do with policies [likely a mistranscription of “politics” -EV]. It has to do with science, and it has to do with the fact that more and more the vast majority, in fact I think overall in bodies of science is that young people, not just K through 12 but also between the ages of 16 to 20, 21 is where the brain is still in a stage of development.
It is not, and those studies by the way were utilized by the Supreme Court to rationalize why killing a minor was unconstitutional because in large part notwithstanding the fact that they did commit a crime and the court made it very clear, they weren’t going to excuse them from committing a crime.
Certain factors in how the juvenile or adolescent or young adult brain processes information is vastly different from the way that we adults do.
So when we sit back and talk about what is right or wrong in terms of First Amendment jurisprudence from a reasonable person’s standpoint, we are really not looking into the same referential viewpoint of these people, of an adolescent or young adult, including those in universities.
And I’m just wondering is, at some point why we don’t understand that because that has an impact, because that explains why all of us, many of us as adults often sit back and say God, I wonder why that young person took his or her life.
He or she had so much to look forward to when their brain processes information in a much different way than we do.
And because of that, and because of the unique nature of a university campus setting, I think that there are very good and compelling reasons why broader policies and prohibitions on conduct in activities and in some instances speech are acceptable on a college campus level that might not be acceptable say in an adult work environment or in an adult situation.
And I am just trying to figure out from you how you square your reliance on this kind of personal and jurisprudent line in the atmosphere of colleges and universities as you have a population of young people, who for lack of a better word, don’t process in the same way that we do when we’re in our late 20s and 30s.
The easy answer is that the First Amendment protects speech and precludes speech codes that limit free speech, even among college aged youth. Thus, no matter how strongly one believes that they require special protections due to their developing brain and special sensitivity, such a prohibition is unconstitutional.
But let’s assume there is no First Amendment, and no easy answer that the Constitution has already decided this question in favor of free speech. Does the position that youth are especially vulnerable to hurtful speech and therefore need to be protected from hurtful speech have merit?
Most of the arguments revolving around constraining “hurtful” speech, from bullying to revenge porn, contend that the Constitution could not protect speech that hurts people’s feelings. It’s what advocates call “low-value speech,” speech that does little to enlighten anyone, promote a concept worthy of protection, while being greatly hurtful. Is there a good reason to protect such speech?
What about the children, who take to heart the attacks on their color, gender, sexual preference, such that they are pushed to feel unworthy, disrespected, hated. In extreme cases, they are pushed to the point of suicide. In less extreme cases, they suffer blows to their self-esteem that may affect their self-image and self-worth for many years, if not the rest of their life.
What about speech that has extrinsic impacts, where ridicule or public exposure has a very real impact on a young person’s life? Should something that a young person does in the throes of youthful inexperience have a deleterious impact on their lives forever because others have decided to exploit it and use it against them?
And if there is some sense of protectiveness due vulnerable youth, where is the line to be drawn? By focusing on the harm caused by speech, does that preclude a similar concern for the right of other youths to express their thoughts and ideas, even if hurtful to someone else? Should the speaker suffer for years, or forever, because speech was hurtful to someone? Is the speaker’s undeveloped brain more or less worthy of the same concern as the target of his speech?
The clash of rights is always an issue when attempting to sort out policy approaches, leaving the question open as to which right, which concern, is worthy of taking precedence. I’ve expressed my views on this issue many times, but then I’m not a member of the U.S. Commission on Civil Rights, nor necessarily any more right than anyone else.
Does Michael Yaki have a point when he suggests that our college campuses are filled with delicate youths whose brains are not yet sufficiently developed to handle hurtful speech, and thus in need of protection despite the First Amendment?