Policing is an inherently white supremacist institution, and we remain skeptical of its ability to address racism and bigotry. Under existing free speech case law the students who were arrested will almost certainly not be convicted, making it imperative for the university to immediately address racism on campus, including but not limited to these recent incidents.
This could be read in different ways, and people inclined to lie to themselves might read it sufficiently weaselly to not read it as the ACLU-CT saying that it was a shame that there will be no conviction, so it’s left to UConn to punish the evildoers, who, obviously, must be punished.
But to those who haven’t been paying attention, they find some comfort in the quote from David Cole, believing that maybe this is just some rogue local chapter that hates the Constitution too much.
David Cole, national legal director of the national ACLU, had the following reaction: “Although the conduct reported in this incident is reprehensible, it is not criminal. The First Amendment protects even offensive and hateful speech, so long as it does not rise to the level of incitement to violence, criminal harassment, or true threats. Nothing in the press reports indicates that the students’ speech, while morally abhorrent, meets that demanding standard.
Rumor has it that this quote was a last-minute addition, rammed down the local chapter’s throat when its statement was too flagrantly censorious for national to stomach. This tepid quote, notably not accompanied by any action by the national ACLU as might happen had speakers been of a more marginalized community, does not, as some who haven’t been paying attention, assume. It’s not that the national ACLU still believes in the First Amendment, but that it still needs to pretend to believe so it’s available when it needs it.
There is a push afoot, with the acquiescence if not full-throated support of the Legal Academy, to shift the meaning of free speech from, well, free speech to valuable speech. It’s the core argument made by Mary Anne Franks in her Cult of the Constitution book. It creates the appearance to the foolish or woke that it’s not a disavowal of speech, but only of worthless, bad, evil speech. The soft push is that free speech exists to protect speech, but speech that contributes to our public discourse.
The value of a system of free speech has to be measured not just by its effectiveness in promoting individual autonomy—“voice”—but by its effectiveness in helping us discover truths, understand one another, resolve civic disagreements, govern ourselves.
Surely, these are positive values. Who doesn’t want to “discover truths,” as gently posited by Jameel Jaffer, head of Knight First Amendment Institute at Columbia University, and former Deputy Legal Director at the ACLU? After all, had he twitted “hate speech should die,” it would have been too obvious. Instead, he proffers virtuous speech as the metric for judging the “value of a system of free speech.” It’s a trap.
On the one hand, who is so pure as to be our arbiter of which speech helps us to “discover truths”? What political speech contributes to the betterment of society and what is causes, rather than resolves, civic disagreements?
He’s not proposing that MAGA hats are a new fashion trend here, even if they reflect the views of millions of people and the current regime. He’s not suggesting that the resolution of which he so lovingly speaks be that the woke get off their politically correct soapbox and accept the refusal to use preferred pronouns by people whose “truth” differs from his.
On the other hand, there is a huge swathe of speech that philosophers would challenge as being of low value, from dumb sexist jokes to ad hominem attacks to revealing that your boyfriend gave you herpes because he’s screwing anything that walks. Does this speech elevate our national dialogue?
There’s a credible argument to be made that humor contributes to the welfare of society, but the retort is that humor doesn’t have to be hateful, so only valuable humor should be permitted. And even ad hominem condemnation is valuable as a reflection of popular support, since how would we know who’s sexist and racist if the woke didn’t scream it? But would it be valued only when it’s correct, since wrongful condemnation is, by definition, wrong?
There’s a seductive quality to the lie. What decent person wouldn’t want to elevate the discourse? Then again, most of us consider ourselves decent people, and believe that our views are not merely correct, even if unpopular, but worthy of expressing.
And no less an authority than the Supreme Court has contributed to this morass of misunderstanding.
“[N]ot all speech is of equal First Amendment importance,'” however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous. That is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest: “[T]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas”; and the “threat of liability” does not pose the risk of “a reaction of self-censorship” on matters of public import.
This lofty view of the First Amendment was employed to hold that “God hates fags” was constitutionally protected, and so they wrapped up these awful words in banal philosophical verbiage that gets pulled out whenever the Court needs to market a difficult holding. This is the rationale for the unwashed, to maintain the Court’s veneer of integrity and provide an explanation even the most outrage might accept. It is not, however, the holding, but palliative language to keep the townsfolk with pitchforks from storming the courthouse.
But what the ACLU, Jaffers and Franks seek to do is give the woke a credible ledge to embrace the idea of authoritarian censorship by shifting the First Amendment’s justification from free speech for all to socially valuable speech. I suspect they won’t value my unpleasant speech too highly. Are you certain enough that yours will pass their muster that you will embrace your new speech masters?