It might be considered a bit snarky to say that the Los Angeles Times published an op-ed by Laura Beth Nielsen in response to one by Ken White, but that may very well be the case. Newspapers try to present balance, both sides of the coin, which is generally a good thing, with one proviso: the other side of balance isn’t complete, utter, total nonsense.
There are good arguments to be made on either side of this issue. It’s unfortunate that the author of this op-ed is unfamiliar with any of them.
–SHG, Newsday, 1984
But what of Nielsen, Ken’s counterweight? Her opening sentence foreshadows the problem:
As a sociologist and legal scholar, I struggle to explain the boundaries of free speech to undergraduates.
The boundaries of law bear no relation to sociology, so what this has to do with her inability to explain law to undergrads is unclear. What is clear is that she writes for a non-lawyer audience, and attributes to herself the title “legal scholar.” Putting aside her pretentiousness, it’s a set-up. She argues from authority, so she must know what she’s talking about. She teaches undergrads! And it’s a struggle!
Despite the 1st Amendment—I tell my students—local, state, and federal laws limit all kinds of speech. We regulate advertising, obscenity, slander, libel, and inciting lawless action to name just a few. My students nod along until we get to racist and sexist speech. Some can’t grasp why, if we restrict so many forms of speech, we don’t also restrict hate speech.
Of course her undergrads can’t grasp why. They’re undergrads, with mush for brains. That’s why they’re in college. That’s why Nielsen is paid the big bucks, to teach them why, to explain in each of her examples the specific legal bases for why, despite the First Amendment, there are very specific exceptions. And it might behoove her, if she was to do her job, to add in that vague characterizations like “racist and sexist speech” are the sorts of things that undergrads aren’t inclined to question, because they’re undergrads and too clueless and indoctrinated to have the capacity to grasp what’s wrong with the wildly meaningless assumptions.
That, Laura Beth Nielsen, is your job as “a sociologist and legal scholar.” So what do you teach them?
The typical answer is that judges must balance benefits and harms.
Such a reasonable answer, but for one problem. It’s wrong. Not just a little wrong, but completely wrong. The constitutionality of speech is not decided based on a balancing test, and taking Nielsen at her word, that she’s a “legal scholar,” she doesn’t get the benefit of being ignorant. No, she’s a liar.
And in kicks the sociologist side of the argument:
If judges are asked to compare the harm of restricting speech – a cherished core constitutional value – to the harm of hurt feelings, judges will rightly choose to protect free expression. But perhaps it’s nonsense to characterize the nature of the harm as nothing more than an emotional scratch; that’s a reflection of the deep inequalities in our society, and one that demonstrates a profound misunderstanding of how hate speech affects its targets.
Insert any platitude that works for you, “speech is violence,” “words hurt as much as bullets,” HATE SPEECH KILLS!!!
But these free-speech absolutists must at least acknowledge two facts. First, the right to speak already is far from absolute. Second, they are asking disadvantaged members of our society to shoulder a heavy burden with serious consequences. Because we are “free” to be hateful, members of traditionally marginalized groups suffer.
Whenever you read the words, “free speech absolutists,” the red propaganda flag should go up. Whereas balancing is warm and fuzzy, absolutism is harsh and inflexible. And much as she’s right that people, whether “traditionally marginalized groups” or anyone else, will suffer for the freedom to speak words that offend someone, that is indeed the price of free speech. And when those same people speak back, offending those with whom they disagree, usually by calling them racist or sexist because they only possess blunt weapons, they too get to utter their hateful words.
While balance is an excellent way to hash out the varying viewpoints on controversial issues, lying about the law is not. Or maybe Nielsen isn’t lying, and she’s just that ignorant.