If there was one thing, just one, that could happen to make the fight for free speech more difficult, more tainted, more deserving of the ideological condemnation of the forces against hate speech, what would it be? Meet Jeff Sessions.
The set up for the Sessions speech was gross, but the content of his thoughts were those of a fledgling tyrant. Sessions promised “enforcement” of free speech protections, but didn’t even veil that what he means by that is to stamp out peaceful protests.
Elie Mystal’s description is outrageously hyperbolic, to the point of arguing about how Nazis shouldn’t have First Amendment rights, and yet not nearly as irrational as Joe Patrice’s “blow-by-blow” of how the invitation-only speech was limited to those invited, which proves they’re all snowflakes and Georgetown lawprof Randy Barnett is a Sessions lackey.
But is Sessions wrong? Generally, no, but he’s not entirely right either.
At one point, the attorney general compared mask-wearing activists who were attempting to shut down an event at Middlebury College to members of the Ku Klux Klan, even though it could be argued that they were exercising their First Amendment rights. After activists prevented people who were scheduled to debate from doing so and they tried to move to another location, he said, “the protesters, many wearing masks, a common tactic used by the detestable Ku Klux Klan, pulled fire alarms, surrounded the speakers and began physically assaulting them.” (The college said in May it would discipline 74 students for the incident, which occurred in March.)
It could be argued that they were exercising their rights up until the violence began and they gave their own prof, Allison Stanger, a concussion. But then, it could also be argued that it was an exercise in the Heckler’s Veto, the use of protest to silence speech. The distinction is one worthy of critical discussion, and that’s why Sessions raising it is a disaster.
There are serious issues at stake here. There are serious arguments being made to create an new exception to the First Amendment for hate speech, and there are frivolous arguments made by disingenuous academics. There is a very serious organization, FIRE, which has accomplished a great deal in trying to keep free speech alive on campus, as the enemies of civil rights try to taint the organization by characterizing it as conservative or criticize it for not straying beyond its mission.*
So what’s the big deal now? The introduction of Sessions, for whom no one knowledgeable about much of anything has any respect, feeds every crazy believer that the issue of free speech isn’t one of constitutional rights, but of conservatives, white supremacists and alt-right. Elie again:
Let’s say a university invites a controversial speaker to campus, AS HAPPENS ALL THE TIME NOW BECAUSE FREE SPEECH ISN’T UNDER ATTACK. That controversial speaker will be met with protest, BECAUSE PROTEST IS A FIRST AMENDMENT RIGHT TOO. What happens then? In the world of Jeff Sessions, the “protester” isn’t exercising his rights freely as an American citizen, no, he’s a “heckler” trying to suspend somebody else’s right. The protester — who the First Amendment was designed to protect — becomes the enemy. The establishment stooge invited to speak, becomes the victim.
And the cops? Well Sessions just told universities that if they unleash their dogs on “disruptive” protesters, Sessions and the Justice Department will have their back.
See what happened there? No longer need he engage with serious issues, meaningful analysis, as he can now go ALL-CAPS in a rant about the Elf.
This seems like a good time to point out that the Sessions Justice Department is still trying to prosecute people who laughed at Jeff Sessions’s confirmation hearing. When Jeff Sessions says “heckler” your Spidey-sense should tingle, because what Jeff Sessions thinks should be done to “hecklers” isn’t in the BALLPARK of a robust understanding of the First Amendment.
You’ll note what we haven’t talked about yet: hate speech. Jeff Sessions managed to give a whole speech about “free” speech without mentioning the role universities and society has in regulating unprotected speech that promotes violence and genocide.
And then came the coup de grâce :
At a given moment in time? THERE IS NEVER A TIME WHEN NAZIS MUST BE TOLERATED! Free speech does not EXIST to protect Nazis, IT MUST BE PROTECTED FROM NAZIS.
By sticking his nose into a serious concern, and employing his deepest thoughts and strongest rhetorical skills, Sessions has breathed new life into every batshit crazy belief, every loony shriek, available to those who would constrain the First Amendment to speech that meets their approval.
In fairness, it’s entirely unknown at this point what actual impact Sessions, and the Department of Justice, will have. It has filed a statement of interest in the Gwinnett College case of Uzuegbunam v. Preczewski, but that’s signed off on by career prosecutors from Main Justice, and is taken as a serious effort. Despite fears, and a policy shift back to the Ashcroft days at Justice, Sessions has been little beyond a hapless noisemaker of no consequence. Thus far, anyway.
Will Sessions actually do anything? Who knows, but his thrusting himself into a serious issue is all that’s required to do tremendous damage to those fighting to protect the First Amendment on campus by giving the shrieking voices of insanity an elf to personify how free speech is merely a racist subterfuge. The noise will be deafening, and the requirement of rationality is subsumed by logical fallacies, foremost of which is ad hominem.
While interest groups kvelled over their causes being championed by DoJ during the past administration, there is nothing to be gained by Attorney General Sessions pushing his way into the free speech on campus problem. As unpleasant as it smelled before, Sessions brings a stench that will permeate the discussion, even if he does nothing more.
*FIRE’s Ari Cohen was engaged with some dope on twitter over the past few days trying to explain, when challenged as to why FIRE hadn’t taken a position on the NFL kneeling issue, that its mission was focused on campus speech, not professional sports speech.