Free Speech Can Be Messy, but We Need It

Earlier this year, ACLU attorney Lee Rowland spoke at TedX Reno to debunk some common misconceptions about free speech. Below is an edited version of her talk.

The year 2017 was a hell of a year for the First Amendment. Nowhere was more central to this culture war than the campuses of universities across America — including right here at the University of Nevada, Reno.

Two students found themselves embroiled in the biggest free speech controversies of recent years. Peter Cytanovic became the face of white nationalism when a picture of him snarling, holding a tiki torch at the Unite the Right Rally in Charlottesville went viral. On the opposite end of the political spectrum, graduate Colin Kaepernick went on to the NFL and used his position to highlight police brutality and racial injustice by taking a knee during the national anthem. Both men became incredibly controversial for their speech. There were calls and campaigns for them to be expelled for their opinions.

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But regardless of whether you agree with one of them, both of them, or neither, the First Amendment protects both of those men and their opinions from censorship and retaliation by the government.

That’s a good thing. Let me tell you why.

It’s becoming more common to call for lower legal protections for speech — specifically, that we should criminalize “hate speech.” I hear this from the left a lot. I think many on the left would love a world where Mr. Kaepernick could take a knee without any worry the government would force the NFL to fire him, but where a government school would still have the power to expel Mr. Cytanovic. This is a dangerous proposition.

I’m a progressive. It’s not hard for me to choose between white nationalism and racial justice. The first is abhorrent and racist. The other is a demand for equal rights. But what if we gave the government the power to decide which of those men was too hateful to speak? Look at our current president — he called Charlottesville marchers “very fine people,” while reserving his ire for Black NFL players, whom he called “sons of bitches.” Your idea of “hate speech” may not be the government’s idea of “hate speech.” I know mine isn’t. But even if you agree with Trump — are you sure our next president will agree with your worldview? You shouldn’t be.

That’s why I’m a true believer in the First Amendment. I am an anti-authoritarian. And I know that the government has historically wielded its raw power to silence those who speak truth to power. And because I want students everywhere to be able to take a knee without fear of government censorship, I know we have to cherish our robust First Amendment — even for speech that is hateful.

But even though I’m a free speech attorney, I find many of the common tropes and myths about free speech unsatisfying. I’m going to explain why I’m a true believer by debunking three of these common myths, and, in the process, hopefully reveal three practical tips for exercising your free speech rights powerfully and strategically.

Let’s start with one myth we all learned in kindergarten:

Sticks and stones may break my bones, but words will never hurt me.

Does anyone as an adult actually believe this? It’s manifestly untrue. I’m a free speech attorney precisely because I believe that words matter. We cannot protect free speech by denying its power.

So why on earth do we teach this obvious lie to kids? Because humans can be vicious. And when kids are at the receiving end of taunts, we want them empowered, not diminished, in the face of that injustice.

In February, notorious troll Milo Yiannopoulos had a planned speech at the University of California, Berkeley. Students and others in the community went nuts. There were protests. There were riots. Things were set on fire. The administration canceled his talk.

In April, there was a repeat — except this time it was Ann Coulter. She was going to speak, school officials said there would be riots, and they canceled her talk. Both of these individuals then spent 2017 identifying as victims of liberal censorship. And my god the media ate it up — they got more attention for being silenced than they did for trying to peddle actual substantive views.

A goal of professional provocateurs is to provoke the campus community into trying to silence them. Think of campus trolls as schoolyard bullies. Oh, their words definitely hurt. But the real question is: How do we respond to that hurt? A troll wants you to censor them. It feeds into their power and gives them something to sell. You don’t have to play that role.

Yes, there is power in hateful words. But there is also power in sass — in unwillingness to be goaded into a fight or to play the role of censor.

But not all words wound in the same way. That brings us to our second myth:

Hate speech isn’t protected by the First Amendment.

I often hear younger people say that hate speech isn’t protected by the First Amendment. But that’s untrue. As President Trump’s views of Mr. Kaepernick should make plain, “hate speech” is a flexible concept. Just this week, the Spanish government arrested and charged a man with “hate speech” for calling cops “slackers” on Facebook. That’s what criticizing the government looks like without a First Amendment. “Hate speech” can easily be redefined as speech that threatens the state.

But we shouldn’t only protect speech out of paranoia — there’s an upshot here, too. Our history shows the same First Amendment that protects hateful, racist speech can be and has been used by civil rights advocates to protect historically vulnerable communities.

Charles Brandenburg was an avowed racist convicted of “incitement to violence” for holding an Ohio Ku Klux Klan rally in the late 1960s. The KKK’s lawyers took it all the way up to the Supreme Court, arguing his hateful ideas were protected by the First Amendment. The Supreme Court agreed with Brandenburg that his vicious, genocidal talk about Jews and Black people was constitutionally protected because it only fantasized about future violence. The court decided that before the government can punish speech, there has to be an immediate and specific risk of actual violence to a real person.

In a vacuum, that result might upset you. But at around the same time, NAACP leader and civil rights icon Charles Evers gave a passionate speech advocating a boycott of racist, white-owned businesses. He promised that he’d “break the damn neck” of any activist who broke the boycott. White business owners sued Evers and the NAACP for — you guessed it — “incitement,” arguing that his violent language had led to riots. But the NAACP looked to that Brandenberg case. Those civil rights leaders appealed all the way to the Supreme Court, to be sure that Mr. Evers benefitted from the same rights as a KKK member. And they succeeded.

The court boiled it down to this question: Are we talking about theoretical future violence, or is there an immediate risk of harm to a real person? And while there is nothing equivalent about the KKK and the NAACP, from that point of view, these cases looked the same.

There is reason to be skeptical that the rights extended to a KKK member will actually trickle down to someone like an NAACP leader. The hard truth is that every right in our society first gets distributed to the privileged and powerful. Americans did not get the right to vote at the same time regardless of sex or race. Today, your rights during an arrest — or your right to carry a gun — do not look the same for all races.

But would you say the answer to that uneven distribution of rights is to eliminate the very constitutional protections that enable us to fight the government when it violates them? No. Distributing our constitutional rights equally is a process. The First Amendment is no different.

It’s our job to ensure that everyone benefits from the same level of constitutional protection, that our free speech rights are truly “indivisible.” Our First Amendment is necessary to ensure that those who challenge the government are not silenced — but that’s not sufficient to ensure justice. We have to do the rest of the work.

So, are today’s students up for it? That brings us to our third and final myth:

Students today are snowflakes.

Public schools and universities are governed by the First Amendment. That means they can’t just keep hateful people off campus because of their views. That means Black and Jewish students have had to face white supremacists on campus; immigrant students have been demonized; women have had to endure campus speakers calling feminism a cancer. I guarantee you that most adults don’t have to pass by a group of people calling for their extermination on their walk into work. I don’t think students are snowflakes. I think you’re badasses.

When I tell you trying to silence or censor political enemies is wrong, it’s not because I think it’s weak. It’s because I think it’s unstrategic and strengthens the force of your opponents. But if silencing hateful speech isn’t an option, what does it look like to be empowered in the face of hate?

Learn more about Students' Free Speech Rights

Sometimes the answer will be in your numbers. In August 2017, a group of alt-right protesters planned a gathering at Boston Common, labelling it the “Free Speech Rally.” Only dozens of the permit holders showed up. But ringing the Common were 40,000 people standing strong against racism. That huge counter-protest sent a powerful message of resistance: a blizzard of snowflakes. And it made clear the foolishness of one group trying to own the brand of “free speech.”

Sometimes all it takes is a single person to make a powerful statement. A few years ago, a musician, appalled by a KKK rally in his hometown of Charleston, didn’t bother to try to refute the racist ideas — he just followed them around with a sousaphone, loudly oompah-oompahing along. His message of protest was clear — without a single word. The marchers disbanded in short order when forced to peddle their message of hate over a goofy tuba line.

I believe in the First Amendment because it is our most powerful tool to keep the government from regulating the conversations that spark change in the world. If you want to keep having conversations that can change the world, you should embrace the First Amendment too — messiness and all.

I hope unpacking these myths has helped reveal some truths about how we can strategically exercise our powerful First Amendment rights:

Know your history. Know that the same high-water mark that has protected the most vile and hateful speakers has also protected civil rights and anti-war advocates.

Don’t silence your way out of a debate. Remember that a provocateur wants you to play censor. If you know that a speaker you disagree with — or one you believe is dangerous — is coming to your campus, remember how counterproductive silencing tactics can be.

Dance to your own tune. You can decide when to counter-protest, when to stage an alternative event, and when to ignore ideas unworthy of debate. The very choices you make for confronting — or ignoring — speech you abhor can become benchmarks for how you handle conflict throughout your life.

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Anonymous

I don't disagree with the ACLU on this, it couldn't be more important right now. This is an interesting concept though, as hate has become normalized with the Trump Administration. We may have to allow racism, xenophobia and all the rest to be expressed but we sure as hell don't have to tolerate it or allow it to be normalized.

"paradox of tolerance: Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them. — In this formulation, I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be unwise. But we should claim the right to suppress them if necessary even by force; for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument; they may forbid their followers to listen to rational argument, because it is deceptive, and teach them to answer arguments by the use of their fists or pistols. We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant."

Anonymous

"...as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be unwise. But we should claim the right to suppress them if necessary even by force..."

So, suppression of speech is justified when you cannot argue against it?

Anonymous

"Sticks and stones may break my bones, but words will never hurt me.
Does anyone as an adult actually believe this? It’s manifestly untrue. I’m a free speech attorney precisely because I believe that words matter. We cannot protect free speech by denying its power.
So why on earth do we teach this obvious lie to kids? Because humans can be vicious. And when kids are at the receiving end of taunts, we want them empowered, not diminished, in the face of that injustice."

I absolutely agree with the thesis here. We cannot protect free speech by denying its power. I want to take issue with the comment about parenting. My son is 11 years old and I've never told him sticks and stones... I disagree that you empower a child by lying to them about speech's ability to hurt them. I would recommend having a frank conversation with them about their feelings, what they're vulnerable to and what are the appropriate ways to respond to them. Speech has power in its ability to convey meaning. As a stick to cause injury it only has as much power as the injured party allows it to. Yes, it is a lie to say that words can't hurt your feelings. However, maintaining that lie instead of preparing your child for its inevitable reckoning is failing to defend them and will cause them to suffer unnecessarily. I've told my son that words are important and they have the ability to affect your feelings, even hurt them, but they are not magic. There is no escaping feelings, but the duration and impact of their appearance can be mitigated by mindfulness and awareness. I've always been honest with my child in that words can hurt you, but I've also been busy preparing him with the knowledge that he has power over his response to his feelings. Not whatever exterior source that stimulating them. I empowered my son by letting him know he had power. Lying is never a good first choice, if ever an acceptable one.

"Students today are snowflakes."

I'm just now starting to understand what this term means. My current understanding is that the term snowflake is used to describe someone who is overly sensitive, someone that may require a safe zone at school, someone that demands protection from viewpoints that upset them. I don't know. It doesn't matter to me. It's obviously a pejorative and anyone engaging in nanny-nanny boo boo will not be taken seriously by me. Sorry if it hurts your feelings kids. Some people are jerks. Like I told my 11 year old in the last paragraph, words can hurt you, but you got the real and only power over your response to that hurt. Forgiveness is a selfishly self-healing act. If someone calls you a name and it hurts your feelings exercise your power to forgive them and don't allow people to hurt you more than they are able alone.

"When I tell you trying to silence or censor political enemies is wrong, it’s not because I think it’s weak. It’s because I think it’s unstrategic and strengthens the force of your opponents. "

Now I've really got to take issue with this comment. You are doing these kids a major disservice by tiptoeing around this issue and attempting to cater to their egos. While it is true enough that censoring or silencing political enemies is unstrategic and counterproductive that's hardly the best reason for not doing it. Where are your values? You don't silence political enemies, because it's authoritarian and reflects a pathological power imbalance. You don't do it because it is WRONG, regardless of its strategic importance. Do you not understand how easy it is to read from your comment that whenever it is beneficial strategically then silencing your political opponents is ok? You're our free speech advocates? I'm in shock by how little respect you are showing the primary and fundamental right protecting our liberty. You've reduced its importance to a political tactic just to patronize people that shouldn't have to be told using force to silence people you don't agree with is wrong. Pathetic. Unbelievable. That's why people from all over the political spectrum have lost respect for the ACLU.

Anonymous

The stick and stones saying is a comeback. It's a way of saying "nanner, nanner, you can't hurt me by calling me names cuz who cares what you say". It disarms the name-caller by taking the power out of his weapon (and if the child using the phrase is convincing enough, and has enough children backing him up, it does just that). Of course, we are talking about children having a spat. Adults don't generally say it except in jest or possibly to a bratty neighborkid who said something rude to them. In the adult world it's much more likely that there will be sticks and stones attached towards in the form of power, politics, money, prestige, or etc. However, some people would be happier if they did stop and think about whether the words that are upsetting them really do have the power to cause then harm and if they really want to care about the opinion of the person saying the words they don't like. Some people just aren't worth responding to.

D Frank Robinson

Why are ballots printed by state governments exceptions to First Amendment free speech and press protections? Why are some states allowed to absolutely ban a voter from casting a write-in vote on the state monopoly ballot? Why are voters prevented from casting their votes for candidates until the candidates pay a fine (filing fee) or exceed certain quotas by circulating petitions to solicit signatures which are political meaningless and only harassment to aid the two self-entrenched political parties? Why is ballot access censorship not political campaign censorship?

Anonymous

Identifying yourself as a progressive, gives you political stance away. No difference than the CIA of FBI having political agendas. The 1st amendment has come to mean, so whatever you want to do, ACLU has your back. Will you take up for the stores that were ramoaged during the ban on automatic weapons, school walkouts. Another hand of the left, the ACLU.

Robin

Stopping extremists from speaking is a mistake. If you don't like what someone has to say, the correct responses are either to debate them or boycott their event, but NOT to try to stop them from speaking. Authoritarians on both the Far Right and the Far Left are against freedom of speech. The Authoritarian Left are NOT liberals. They want to force people to do what they want as much as the Authoritarian Right does. They just each want to force different belief systems on other people. Neither are in favor of democracy, freedom, or personal choice.

Realist 999

Getting back to the issue at hand, in reality, there is no free speech in America. Unless you have access to large amounts of funding, or power, you cannot express your so-called right of free speech. Because if you do, someone will be offended and either sue you or physically attack you. Although the US constitution says "shall not be abridged," it has been abridged to the point where the average person has been muzzled in expressing their ideas and beliefs for fear of reprisal. Prove me wrong.

Jim contak

Realist 999 comment is the clearest of all on this board. My concern similar to his is that mob justice and kangaroo courts are depriving successful people of their hard earned professional lives. Mere suggestions (rumor spreading) of impropriety get some fired without any due process. Many claims made well after statute of limitations result in bad financial outcomes for the accused without any real chance At rebuttal as the claim is all based on here say and without any objective evidence that would be admissible in any actual court case.

Anonymous

You mentioned a "right to carry a gun"; does the ACLU now believe that individuals have the right to carry a firearm in some manner? Or do they still believe that the 2nd Amendment does not apply to individuals?

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