What the ACLU thinks


The ACLU of Oklahoma issued a statement yesterday on the expulsion of the two students involved in the racist chant on the bus.

The following is attributable to Ryan Kiesel, ACLU of Oklahoma Executive Director:

While the facts continue to unfold regarding the recent expulsions and continued investigations, we are closely monitoring the situation and urge the University to keep its attention focused on the larger issues of racism on the University of Oklahoma campus.

Universities are one of the primary battlegrounds for learning about free speech and understanding how to combat bigotry. The best antidote to hateful speech is the exercise of peaceful speech in return. We have seen remarkable examples of students, faculty, administrators, and Oklahomans from all over the state join together in rallies, prayer vigils, and online forums to express their disgust at the racist chant and to call for a meaningful conversation about race and prejudice in all areas of campus life. We applaud their many voices and encourage them to continue the necessary and promising conversation about fighting prejudice and racism.

That looks like a muffled way of hinting that more speech would have been better than expulsion, but it doesn’t spell it out.

The following is attributable to Brady Henderson, ACLU of Oklahoma Legal Director:

It is critical that any disciplinary actions by the University of Oklahoma are not viewed as magic bullets to cure the deeply embedded problems of racism and bigotry that this scandal has brought to light. Punishment alone does not change the hearts and minds of those we punish, or others like them. This is a teaching moment that requires a consistent commitment to honest and open dialogue that does not stop at simply punishing those who spew hate and prejudice on video, but rather, combats the core of that hate and prejudice. The University of Oklahoma has an opportunity to engage in just such a dialogue, and we need to ensure that we don’t miss that opportunity in the rush to punish racist speech.

It’s even less clear what that’s meant to be.

But that was yesterday; today they put out a statement that does say the expulsion probably wouldn’t stand up in court.

Last night’s town hall meeting was a powerful reminder that this moment is much larger than one video or one chant, it is about the need to have a conversation addressing prejudice and racism on the University of Oklahoma campus. Our country and our state have a long history of injustice and even violence toward communities of color. We need plans for long-term change and renewed commitments to diversity in order to right many wrongs. Now is a time for reflection and action, not just quick fixes. At their best, universities are places where students from different backgrounds and experiences come together and learn. To preserve that idea, the University of Oklahoma has an obligation to protect all of its students from a hostile learning environment that impedes their educational opportunities.

As a state-run institution of higher education, the University of Oklahoma must also respect First Amendment principles that are central to the mission of every university. Any sanction imposed on students for their speech must therefore be consistent with the First Amendment and not merely a punishment for vile and reprehensible speech; courts have consistently and rightly ruled as such. Absent information that is not at our disposal, it is difficult to imagine a situation in which a court would side with the university on this matter.  We are closely monitoring the situation and will appropriately respond to new details as they emerge. In the meantime, we stand in solid support of the brave and thoughtful students whose public dialogue on race and the rights of all minority students in response to the incident have embodied the spirit of the First Amendment.

I think I probably disagree with the courts then.

Comments

  1. themadtapper says

    Really, the free speech argument shouldn’t fly at all. Even in public institutions, codes of conduct are perfectly legal and the racist chanting should easily fall into the category of disruptive behavior. If you want to argue that expulsion was an excessive punishment, that would be different. But arguing that these clowns are having their first amendment rights violated should be considered laughable. I fear the courts will see it differently though.

  2. PatrickG says

    Given that private universities don’t face this conundrum, I’m baffled by:

    As a state-run institution of higher education

    being immediately followed by:

    the University of Oklahoma must also respect First Amendment principles that are central to the mission of every university.

    Because, um, ACLU, that’s not actually true. Private universities are not subject to First Amendment constraints in the same way (not always true, see conditions attached to Pell Grants for one example). This is how private universities can discriminate on the basis of religion, for one salient example. This is how private universities are able to put in strict codes of conduct that would not be legal at publicly-funded universities. Many universities explicitly regulate the speech and conduct of their students, with penalties for non-compliance. Liberty University, anyone?

    If you want to argue that as a matter of law, state universities are held to a higher standard vis a vis the First Amendment because of funding sources, fine. That’s pretty much indisputable. To then go on to say that all universities have this as central to their mission is aspirational at best, and an outright lie at worst.

    In other words, private universities expel students for lesser “speech offenses” all the time. Public universities can’t, strictly due to receiving money from the state.

    P.S. Card-carrying member of the ACLU since … damned if I know. Wait, it says on my card. 2008. Though I’ve given money to them sporadically since 2002 at least, the bastards. :)

  3. PatrickG says

    But arguing that these clowns are having their first amendment rights violated should be considered laughable. I fear the courts will see it differently though.

    Should be, yes. But there’s extensive case law and precedent for this kind of thing at public universities. Rather unfortunate, that.

  4. gshelley says

    I suspect the expulsion will be overturned when the students go through the appeal process the President suggested. I might be cynical, but I also suspect that might be intentional – the President can say “I did what I could”, but they don’t have to worry about being sued (and even without the first amendment protections, which all but one lawyer/expert I have seen has said applies), they would probably have a case as there is usually a procedure that has to be followed before a student can be expelled.

  5. Lady Mondegreen says

    I might be cynical, but I also suspect that might be intentional – the President can say “I did what I could”

    He also sent the fraternity packing. He did what he could, and then some. He deserves props for that, IMO.

  6. Crimson Clupeidae says

    More free speech usually is the answer, in my opinion, to horrible speech like this. It’s a difficult line to draw, and as much as I find the individuals in the video, and those who support them to be horrible people. I don’t know that expulsion was the right action. It may have frankly been for their own good, although I doubt that they would acknowledge that.

    Unfortunately, with all the arm chair lawyering that’s been going around, there’s bound to be a (n expensive) lawsuit now. No one wins in that scenario.

    This issue is more complicated than just ‘throw the bums out’ though, and I respect the ACLU for their stand even when it means supporting complete assholes.

  7. says

    The students free speech wasn’t violated because we all saw the video. If the students were expelled due to a speech code then maybe there would be a case but the school could claim the speech was patently offensive and went against the basic educational mission of the school. I doubt anyone could make a claim that the chant had educational value for the students on the bus.

    Free speech doesn’t protect you from the social consequences of the speech and I’m sure those students will have an appeal process.

  8. Z says

    He also sent the fraternity packing.

    Did he? I heard that its national organisation dissolved the local chapter, or something like that.

  9. says

    PatrickG, I’m sorry to single you out, but your comment (#2) overlooks a very important distinction. The ACLU says that “First Amendment principles” are central to the mission of any university. They didn’t say that the First Amendment is enforceable as a matter of law against any university.

    This confusion between the principle of free speech and the law of free speech underlies much of the conversation about free speech. The law of free speech (i.e., the First Amendment itself plus any relevant case law) is intended to advance the principle of free speech. But that law comes bundled up with lots of formal legal considerations that have nothing to do with that principle, like the difference between public and private universities. There’s nothing about private universities that makes the principle of free speech any less important.

    That song is certainly not the kind of free speech that the principled defenders of free speech have in mind. It’s just an expression of hate. The principle exists to protect unpopular opinions, to allow for criticism of authority, and to foster an environment where important issues can be openly debated on their merits. Expressions of hate don’t advance any of those goals.

    But distinguishing between hate and “legitimate speech” (to coin a phrase) isn’t always as easy as it is in this case, and I think as a practical matter the law must err on the side of protecting speech.

    I also don’t think that expelling the students severs any useful purpose (except perhaps deterrence, but drunk college kids are notoriously resistant to deterrence). It’s not enough that an action be bad for it to be punished. The punishment has to be justified on its own terms. I don’t think it’s enough that a punishment “makes a statement” about the unacceptability of hateful speech. That statement can be made in other ways, and is IMO more effectively made in other ways. Race is a difficult social issue that touches everyone. Expelling the students reinforces the narrative that racism is just a matter of a few spectacularly racist individuals, and that it can be addressed simply be excluding those individuals.

  10. says

    Doug Berger (#7),

    This is another example of conflating the law of free speech with the principle of free speech. That song is patently offensive and entirely contrary to the educational mission of the university, no question. But that’s a limitation on the principle of free speech which is not (and arguably could not be) incorporated into the law. You’re right that the law of free speech doesn’t protect against “social consequences”, but expelling students from a public university is not just a social consequence. It’s a state action. The law of free speech most definitely does protect against state action, and the state can’t punish someone for the content of their speech.

    On the other hand, if these guys intended to make this video public for the purpose of making black students feel unwelcome, that’s harassment. The content of the song doesn’t matter if it is being used to actually harass people. But that’s not the case here. These students were expelled for the content of their speech, and the state isn’t allowed to do that.

    Ideally, we should want the law of free speech to protect the principle of free speech and nothing more, but how do you do that? For one thing, reasonable people can differ on exactly where the principle applies, so if we want to change where we draw the line, we need to decide where to draw the line instead. But I strongly suspect that any legal limitation designed to exclude this incident from the protections of the First Amendment would be overly broad. I’d rather have the law protecting too much speech than too little. For a situation like this one, where clearly indefensible speech nevertheless falls within the protections of the law, we have other tools as a society to express our disapproval.

  11. qwints says

    PatrickG @2

    Even in public institutions, codes of conduct are perfectly legal and the racist chanting should easily fall into the category of disruptive behavior.

    That’s not an accurate description of US law. It may be true that OU can punish speech which would ““materially and substantially interfere” with the operation of the school. Tinker v. Des Moines 393 U.S. 503 (1969)
    ; See Axson-Flynn v. Johnson 356 F.3d 1277 (10th Cir. 2004) (holding that a professor in an acting class at the University of Utah could require a student to use language the student found offensive). There is not, however, a First Amendment exception for codes of conduct or disruptive behavior:

    George Mason couldn’t sanction a frat for putting on a skit that “perpetuated racial and sexual stereotypes.” Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University. 993 F.2d 386 (4th Cir. 1991) (citing Berger v. Battaglia, 779 F.2d 992, 999 (4th Cir.1985) for the proposition that performance in black face is constitutionally protected).

    Public universities can’t ban the display of offensive art although they can control where it’s displayed. Piarowski v. Illinois Community College, 759 F.2d 625 (7th Cir. 1985) (“We may assume without having to decide that the college’s interest was not great enough to have justified forbidding Piarowski to display the windows anywhere on campus, but it may have been great enough to justify ordering them moved to another gallery in the same building.”)

    Public universities couldn’t prohibit students from trying “to organize the homosexual minority, “educate” the public as to its plight, and obtain for it better treatment from individuals and from the government” despite gay sex being illegal at the time. Gay Student Services v. Texas A&M, 737 F.2d 1317 (5th Cir. 1984); See also Gay Students Organization of the University of New Hampshire v. Bonner, 509 F.2d 652 (1st Cir.1974) Gay Alliance of Students v. Matthews, 544 F.2d 162 (4th Cir.1976); Gay Lib v. University of Missouri, 558 F.2d 848 (8th Cir.1977)

    Public universities can’t forbid students from advocating civil disobedience. Healy v. James, 408 U.S. 169 (1972)

  12. PatrickG says

    @ drewvogel: You missed my point completely, so I don’t mind being singled out.

    I find it disingenuous of the ACLU to claim that First Amendment principles are central to the mission of any university, since it is easily demonstrable per my examples and the better ones given by qwints that universities are typically the ones attempting to illegally restrict speech. As one blatant example, there was this thing called the Free Speech Movement? The university’s explicitly stated mission was to crush that. I would expect a civil rights organization to be aware of this history, and not pretend that our higher education system has the First Amendment anywhere near its guiding principles. Particularly when said organization spends so much damn time suing universities on this very subject.

    Ultimately, it is just a No True University argument, and it’s very irritating.

    @ quints: You actually responded to comment #1 by the madtapper, not me. :)

  13. moarscienceplz says

    I know nothing of the legal intricacies, but I do know that recent research has shown that human brains do not become fully mature until about age 25. So, I think these 19 year-olds should be given a chance to redeem themselves. Force them to confront how dehumanizing their actions were, and then give them a choice: repudiate and reform, or leave the University. If you just kick them out summarily the Uni gets its problem solved for the time being, but these kids are still going to grow into adults with or without the guidance the Uni could provide, and then all of society will have to deal with them. And once they are on their own, there isn’t a lot of leverage available to try to get them to reform.

  14. dogfightwithdogma says

    I think I probably disagree with the courts then.

    Then your support and advocacy of free speech likely has a streak of hypocrisy running through it. What these young men said was reprehensible, revolting, and offensive. But none of these make what they said unprotected speech. A strong commitment to the principle of free speech means one defends not only the free speech rights of those who say things with which you agree, or have some mild disagreement, but also those who say things you find highly offensive, detestable, insulting, etc. The proper response to the foul utterances of these young men is not to punish them, but to harshly criticize them.

  15. says

    Well that’s one way to put it, but why is it the only way?

    There’s this idea that free speech, almost alone among ideas or principles, is all or nothing…and yet at the same time nearly everyone agrees that there are some limits, such as direct immediate threats, and fraud, and libel. So it’s not all or nothing, but if anyone suggests another item that should be an exception, that’s called hypocrisy. Why is that?

  16. Dave Ricks says

    I Am Not A Lawyer, so I read the ACLU statements Ophelia linked above to see what points they might have. I don’t know, I suppose the ACLU might be technically correct, the university’s position might not stand up to appeal. Comment #11 from quints helped by citing decisions.

    Still, I’m disturbed by the ACLU defending freedom of speech in the abstract without noting the content, like

    There will never be a nigger ΣΑΕ

    The university might have a legal obligation to respond to that.

  17. dogfightwithdogma says

    Doug Berger @7

    … the school could claim the speech was patently offensive and went against the basic educational mission of the school.

    Such an argument does not absolve a university of any responsibility for upholding free speech. There is no constitutional right not to be offended that supersedes the right of free speech. A university’s educational mission, in whatever form it is stated, does not nullify the constitutional protections provided under the First Amendment.

  18. dogfightwithdogma says

    I’m disturbed by the ACLU defending freedom of speech in the abstract without noting the content,…

    I am disturbed that this disturbs you. The point of free speech protections is to ignore the content of the speech except under very specific circumstances.

    The Supreme Court has identified categories of speech that are unprotected by the First Amendment and may be prohibited entirely. Among them are obscenity, child pornography, and speech that constitutes so-called “fighting words” or “true threats.” In a 2010 case, the Court made clear that it would not be likely to add more categories to the list of types of speech that currently fall outside the First Amendment’s purview, but it did not entirely rule out the possibility that other forms of unprotected speech exist. (Source: http://fas.org/sgp/crs/misc/95-815.pdf)

    None of these apply in this particular case.
    Also from the same source cited above:

    In cases of content-based restrictions of speech other than fighting words or true threats, the Supreme Court applies “strict scrutiny,” which means that it will uphold a content-based restriction only if it is necessary “to promote a compelling interest,” and is “the least restrictive means to further the articulated interest.”34 Rigorous analysis is required because the government, generally, is not constitutionally allowed to favor one type of content or idea by suppressing or otherwise burdening another type of content or idea.

    Again, the content of the speech in this case, as vile and offensive as it was, would almost certainly not qualify under the above standard for restriction, nor, I am convinced, would the court accept punishment of individuals for such speech.

  19. Dave Ricks says

    I’m happy to learn legal facts from your citations here (thank you for the PDF, it’s excellent). But I’m still disturbed by the ACLU framing this as a 1st Amendment case of free speech, because I see an equivalence between “There will never be a nigger ΣΑΕ” and “Irish need not apply”. I still think the university may have legal obligations to respond to that, not as speech some find offensive, but as discrimination.

  20. John Morales says

    dogfightwithdogma:

    I am disturbed that this disturbs you. The point of free speech protections is to ignore the content of the speech except under very specific circumstances.

    The Supreme Court has identified categories of speech that are unprotected by the First Amendment and may be prohibited entirely. Among them are obscenity, child pornography, and speech that constitutes so-called “fighting words” or “true threats.”

    […]

    Again, the content of the speech in this case, as vile and offensive as it was, would almost certainly not qualify under the above standard for restriction, nor, I am convinced, would the court accept punishment of individuals for such speech.

    How not? Best as I know, “obscenity” refers to something that’s vile and offensive to the prevailing morality.

  21. qwints says

    Sorry Patrick.

    @Dave Ricks, the school can certainly take action against the fraternity if it discriminates against potential black members. Christian Legal Society v. Martinez, 561 U.S. 661 (2010) (Holding that UC Hastings College of Law could fail to recognize a group as an official student organization when it required applicants to sign a statement of belief); See Bob Jones University v. United States, 461 U.S. 574 (1983) (Holding that the IRS could revoke the tax-exempt status of a university that refused to admit people who were in an interracial marriage).

  22. dogfightwithdogma says

    John Morales @20

    The legal definition of obscenity does, as you point out, refer to expression that is offensive to the prevailing morality. But if you examine the court’s decisions on obscenity I think you will find that they have been very reluctant to employ the legal definition much, if at all, beyond the boundaries of its meaning relative to pornography, particularly child pornography. I don’t think the body of free speech jurisprudence would support the argument that making racist statements would be deemed obscene for purposes of First Amendment evaluation by the federal courts, including SCOTUS. These courts have pretty much confined their use of the concept of obscenity to the evaluation of pornographic materials. There is to my knowledge no court decision that applies the obscenity standard to racist remarks and I don’t think you’ll find SCOTUS receptive to doing so. I also doubt very much you will find any First Amendment scholars or constitutional scholars in general who would offer an argument that racist speech should be prohibited and/or punishable because it is obscene. Though I am not a constitutional scholar, I don’t accept that labeling racist speech as a form of obscenity for purposes of constitutionally prohibiting it would be a wise thing to do.

    There are many statements one could make that are vile and offensive to the prevailing moral norms. Are we going to prohibit all of them under the argument that they are obscene? It would not be consistent to argue that racist remarks be judged obscene under the First Amendment but other forms of similarly morally offensive speech be exempted from this designation. I am not willing to start parsing the principle of free speech in the manner you are suggesting. And I don’t think many, if any, constitutional scholars, regardless of where they may be on the political spectrum, would share your view.

  23. dogfightwithdogma says

    Dave Ricks @19

    There is a difference between the act of discriminating against a person or group of persons and making racist remarks that indicate a person holds discriminatory views. If these individuals have actually discriminated against some African-American applicants to the fraternity then they can and should be punished for this conduct. But making racist remarks is in-of-itself not an act of discrimination under the legal code.

  24. says

    You didn’t answer my question @ 15. I’m still wondering why it’s “hypocrisy” to consider particulars when we already do consider particulars in the case of threats, libel, fraud, and the like.

  25. dogfightwithdogma says

    Ophelia @15

    Well that’s one way to put it, but why is it the only way?

    This is not the “only way” to put it. It is the way I chose to put it. There may be a host of other explanations for the position you have staked out. Whatever the reason – I admit I can’t know with great certainty which reason or combination of reasons – I think your commitment to the principle of free speech is weak and troubling if you sincerely think that racist remarks should fall outside the free speech protections of the First Amendment.

    So it’s not all or nothing, but if anyone suggests another item that should be an exception, that’s called hypocrisy. Why is that?

    Fair question. I’ll attempt to answer. In the example of unprotected speech you cited – speech inciting immediate violence against a person or group – there is a threat of physical or bodily harm. This is sufficient justification for restrictions on such speech. But speech that simply offends, even deeply offends, does not rise to this condition. The hypocrisy in your position is, I think, found in this difference. You are not, so it seems to me and for reasons of which I will not speculate, giving this difference its due consideration. There is a considerable gulf between speech that incites others to engage in unlawful behavior and conduct and speech that offends. A failure to acknowledge this difference, I believe, stakes out a position on the principle of free speech that exhibits hypocrisy. If you are going to take the position that speech that is offensive should be unprotected, then there is an element of arbitrariness that comes into play in drawing the line between offensive speech that is not protected and offensive speech that is protected, unless you do actually think all offensive speech should receive no constitutional protection. If offense is to be one of the criteria for judging speech unprotected then all offensive speech should be unprotected. It would be a legal quagmire to start trying to find the boundary between protected and unprotected speech when offensiveness is the controlling factor. This is one of the main reasons, if not the main reason. why the courts have actually not to date used this is a standard for judging the content of speech.

    Contrary to some of the views that have been expressed here, one of the purposes of the First Amendment is to protect offensive and unpopular speech. Championing free speech is easy when it is speech with which we agree, or have relatively little disagreement, or do not find particularly emotionally painful. The real test of one’s commitment to free speech is how we react to the hard cases where the content of that speech is deeply offensive, emotionally painful, obnoxious, even repugnant. It is hard cases like this where our commitment to free speech is most tested, and most important. I am deeply aggrieved by the speech of the Westboro Baptist Church congregation, members of the KKK, and Nazis, to mention just a few. But I would resist any attempt to punish these individuals for the vile things they say. When we succumb to the impulse, because of our sense of moral outrage, to punish offensive speech then we chip away at the right to free speech. I am aware of the danger of making slippery slope arguments. But some slippery slopes do exist and in this case I am very much convinced there is a slippery slope, and I for one am not willing to risk sliding down it because I find the words of these two young men, or white supremacists, or Nazis, or religious fanatics deeply offensive.

    I never meant to imply that free speech is all or nothing. There are restrictions that can be placed on speech. But speech that offends or insults, no matter how deeply felt that offense may be, is not one of the justifications for restricting the speech. You can suggest that it should be, as you appear to be doing. That is an exercise of your right to free speech. If your position is that all offensive speech should be restricted then I will withdraw my charge of hypocrisy. But if, as I suspect is the case, you want to punish a person for offensive speech that crosses some line but not speech that does not cross this line, then I think your position exhibits hypocrisy. At the very least it shows a level of commitment to free speech that is dangerous and injurious to the principle, and most probably only aids in creating an environment and public sentiment that will erode the right itself.

    Such attitudes toward free speech will, I am convinced, aid in a general erosion of support for free speech rights. If we offer weakened, soft support for free speech in what are the hard cases, we should not be surprised when over time general support erodes for even what should be the easy cases.

  26. says

    But I have said throughout this discussion – more than once because people keep making this mistake – that the issue is NOT (just) that the racism was “offensive.”

    So your whole comment is pretty much beside the point.

    This gets frustrating.

  27. qwints says

    dogfightwithdogma, there’s nothing illegitimate or hypocritical about advocating new or expanded legal exceptions to free speech. Ophelia has correctly pointed out that the use of slurs in certain ways are intended to silence people, and that even indirect or implied threats of violence can intimidate. She’s also clearly aware of the dangers of overly broad definitions of harmful speech as shown by her coverage of anti-blasphemy laws. I’ve disagreed elsewhere about whether and how one could draw a line, but it’s pretty ridiculous to dismiss that discussion as incoherent or opposed to free speech.

    Do you think free speech would really disappear if the US banned Nazi paraphernalia or holocaust denial as in Germany? Or hate propaganda as in Canada?

  28. dogfightwithdogma says

    Ophelia @24

    While it is true that we consider particulars in the examples you listed – threats, libel, fraud – there is an important and, I think, significant difference between these examples and racist language. A threat is a unambiguous indication that some physical harm is about to follow. Libel and fraud involve injury as well, though not physical injury. In the case of libel there is injury to ones reputation that has or can have social and/or economic losses. Fraud also is an economic injury. There is no equivalent or similar physical or economic or even social injury that results from racist rants.

  29. dogfightwithdogma says

    Ophelia @26

    Where in this thread or the original post did you unambiguously state that the racism in this case, which in this particular instance involves racist language, but no actual act of racial discrimination, that the racism in this instance is more than just about offensiveness. In what way is what these two men said so much more than simply offensive that the speech should not have First Amendment protection?

    I am frankly unclear, then, as to what standard or criterion you are using to argue that what they said is not and/or should not be protected speech?

    I don’t accept your claim that what I said is irrelevant. I don’t think you have made a convincing case that their racist rant meets any criterion that justifies exempting their remarks from First Amendment protection.

    I share your frustration, but for obviously different reasons. I am having frustrating trouble understanding why you don’t, can’t or won’t see what is wrong with the way you are thinking about free speech, why you have adopted a standard for evaluation that in my view poses a serious danger to the right itself..

  30. dogfightwithdogma says

    qwint @27

    …there’s nothing illegitimate or hypocritical about advocating new or expanded legal exceptions to free speech.

    It is becoming clearer to me now what Ophelia is doing. I don’t agree with it. I agree there is nothing illegitimate about advocating for new or expanded legal exceptions to free speech. In fact I never claimed that to do so was illegitimate. And perhaps hypocrisy was the wrong criticism to apply. So if this is what Ophelia is doing, then I think she is just advocating a very bad, and dangerous exception and for reasons unclear to me she fails to see why it is bad and dangerous.

    Ophelia has correctly pointed out that the use of slurs in certain ways are intended to silence people, and that even indirect or implied threats of violence can intimidate.

    I have no doubt that the use of slurs in some cases are intended to silence the targets of the slur. But however unpopular this view may be on this forum – I suspect it will be quite unpopular – I don’t consider the use of slurs as a attempted silencing tactic to be unprotected speech.

    She’s also clearly aware of the dangers of overly broad definitions of harmful speech as shown by her coverage of anti-blasphemy laws. I’ve disagreed elsewhere about whether and how one could draw a line, but it’s pretty ridiculous to dismiss that discussion as incoherent or opposed to free speech.

    I did not say that Ophelia is opposed to free speech. You really should read my remarks a little more carefully. I said she holds a weakened commitment to it. I agree with and applaud her opposition to anti-blasphemy laws. But that she opposes such restrictions on blasphemous speech yet advocates for restrictions on racist speech does not give me cause to think her a fully committed champion of free speech. In my view both should be afforded First Amendment protection.

    Do you think free speech would really disappear if the US banned Nazi paraphernalia or holocaust denial as in Germany? Or hate propaganda as in Canada?

    No, free speech would not disappear immediately if we followed Germany or Canada’s lead in the examples you provide. The loss of a right or rights does not have to be something that occurs quickly. It can be incremental. And I do believe that is what would happen if we start making the kinds of expansion of exceptions to free speech protection that Ophelia is advocating. Nothing you, Ophelia or any of the others have said thus far has risen to the level of an argument convincing and compelling enough to lead me to accept that Ophelia’s proposed expansion of exceptions to free speech protection is a good idea. I think it would produce more injury than good. I understand the motivation behind her position. I share her social justice concerns. But in this particular case I am convinced we will lose a great deal more than would be gained by her proposal, and that her suggestion, if adopted, would gradually undermine the objectives of social justice.

  31. says

    But that she opposes such restrictions on blasphemous speech yet advocates for restrictions on racist speech does not give me cause to think her a fully committed champion of free speech.

    Can you cite the place where I “advocate for restrictions on racist speech”? I don’t remember doing that.

    And what’s this gobbledygook about “a fully committed champion of free speech”? It sounds like a political slogan rather than part of an ordinary discussion. I’m not sure I’m a “fully committed champion” of anything; it sounds gross.

    If you mean I don’t treat free speech as so holy and sacred that all we can do is “champion” it in a “fully committed” way, instead of discussing the particulars like secular grownups, you’re right, I don’t.

  32. dogfightwithdogma says

    I think I probably disagree with the courts then.

    I took this last sentence of your original post to mean that you disagree with current free speech law that would give full protection to the kind of racist rant those students engaged in. It is possible I misunderstood you but I interpreted your original post as indicating that you think that racist speech crosses some line that should justify less First Amendment protection than other speech that may be just is obnoxious but is not racist. You appeared to agree with the Universitiy’s expulsion of the students for what they said. I don’t think the University was justified in the least in expelling those students for what they said. If the students had actually engaged in one or more acts of discrimination in their admission of applicants to the fraternity, then that would be punishable. But their speech should not be punishable.

    You can make all the condescending remarks you like about the phrasing I choose. Such remarks are completely irrelevant to the main discussion. What you are advocating is a bad idea. I stand by what I said: the position you are advocating reflects, I believe, a weaker commitment on your part to defending free speech than I think is advisable.

    No, I did not mean that free speech should be treated as holy or sacred. And if you read my remarks without projecting your own prejudices into them you would have seen that. I acknowledged that there are reasonable and allowable restrictions on free speech. I pointed out many of them and agree with you on some. You misrepresent my meaning if you are trying to imply that I am arguing that the free speech principle should be treated as a holy or sacred idea. There most certainly is, however, a difference here between us where the boundary should be drawn between speech that should be restricted and that which should be given the full protection of the First Amendment.

    I pointed out in one of my posts why the particulars you cited as examples in your argument do not justify making the additional exception to constitutional protection that you are advocating.

  33. Silentbob says

    @ 28 dogfightwithdogma

    Libel and fraud involve injury as well, though not physical injury. In the case of libel there is injury to ones reputation that has or can have social and/or economic losses. Fraud also is an economic injury. There is no equivalent or similar physical or economic or even social injury that results from racist rants.

    Personally, I consider it an extraordinarily glib claim that racist rants cannot cause “injury to ones [sic] reputation that has or can have social and/or economic losses”. So it is never the case that racist propaganda results in social ostracism or a loss of economic opportunities for the victims?

    @ 29 dogfightwithdogma

    I am having frustrating trouble understanding why you don’t, can’t or won’t see what is wrong with the way you are thinking about free speech, why you have adopted a standard for evaluation that in my view poses a serious danger to the right itself..

    For someone who presumably considers themselves “a fully committed champion of free speech” you seem inordinately frustrated with people venturing an opinion contrary to your own.

    I’m largely in agreement with your stance, but it would not be surprising to me in the least if members of minority or other marginalised groups placed a higher priority on penalising overt bigotry than protecting the rights of bigots to promote their bigotry.

    Are you really so surprised that not everyone shares your concern with protecting sing-alongs about lynching and ostracising blacks? Is it so surprising that a blogger who has herself been a victim of campaigns of hate speech might be less than an absolutist when it comes to the protection of bigoted “free speech”?

    @ 30 dogfightwithdogma

    Nothing you, Ophelia or any of the others have said thus far has risen to the level of an argument convincing and compelling enough to lead me to accept that Ophelia’s proposed expansion of exceptions to free speech protection is a good idea. I think it would produce more injury than good.

    Leaving aside that Ophelia has made no proposals, it is at least equally true that nothing you have said thus far has risen to the level of an argument convincing and compelling enough to convince marginalised groups that overt bigotry should be protected. So far you have presented opinions (“I think she is just advocating a very bad, and dangerous exception”), made an argument you acknowledge is a slippery slope (an airy assertion that free speech will be ‘chipped away’), and made the dubious assertion that hate speech is not harmful in the same way as libel.

    You have not made anything approaching a compelling case that legal censure of chants about hanging “niggers” from a tree will be a net loss to society.

  34. John Morales says

    [meta]

    Silentbob, you left out the appeal to tradition (in his response to me).

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