Thursday, November 12, 2015

Never Compromise the First Amendment

Conor Friedersdorf:
In January of 1987, flyers distributed anonymously at the University of Michigan declared “open season” on black people, referring to them with the most disgusting racial slurs. “Shortly thereafter,” Catherine B. Johnson noted in a law journal article, “a student disc jockey for the campus radio station allowed racist jokes to be told on-air. In response to these incidents, students at the University staged a demonstration to voice their opposition. The rally, however, was interrupted by the display of a Ku Klux Klan uniform dangling out of a nearby dormitory window.”

Students in Ann Arbor were understandably upset and outraged by the racist climate created by these events. Administrators decided to respond by implementing a speech code. Thereafter, racist incidents kept occurring on campus at the same rate as before. And before the speech code was struck down 18 months later as a violation of the First Amendment, white students had charged black students with offensive speech in 20 cases. One “resulted in the punishment of a black student for using the term ‘white trash’ in conversation with a white student,” the ACLU later reported, explaining its position that “speech codes don't really serve the interests of persecuted groups. The First Amendment does.”
Everyone is best served by a rigorous defense of all our rights. When we tolerate warrantless wiretapping because we are afraid of terrorists, or police misconduct because we are afraid of crime, or campus speech codes because we are afraid of racism, we all lose. The rights you are willing to take from other people will one day be taken from you.


G. Verloren said...

"Everyone is best served by a rigorous defense of all our rights."

Surely this is a bit too absolute of a statement, no? There are most assuredly times and contexts in which restricting or taking away certain right is the appropriate course of action.

A basic example is placing someone under arrest - we literally "arrest", or deprive, them of their liberty, in order to facilitate the legal process. Similarly, when a law is passed which grants the citizenry a certain right, in effect the government is losing their right to restrict or prohibit something.

More complicated examples include the abolition of slavery, with the legal right to own or trade human beings as property being stripped away; and later the overturning of Plessy v. Ferguson, revoking the right to engage in "separate but equal" segregation. And one must remember that there were plenty of people who rigorously defended those rights by arguing they were in the best interest of everyone.

Rights are never inherently good, and always require qualification. As demonstrably beneficial as the right to Free Speech is, even it has restrictions on what kinds of speech it protects, and from which parties. There is always room to doubt and to challenge a given right, and to enact legal change when we colectivey decide it to be appropriate or necessary.

Your examples of warrantless wiretapping, police misconduct, and the institution of a "speech code" at a public university aren't reprehensible acts because they go against our established legal rights - they're reprehensible because of the very natures of said acts and their demonstrable negative effects.

Challenging or defying extant rights is not wrong in and of itself. Some rights deserve to be challenged. When Civil Rights activists challenged the legal rights of whites to engage in segregation, that was a noble and just act. It is the cause behind the challenge and the nature of the legal right in question that matters - not the mere fact that something is or is not a right.

We mustn't blindly champion any and all rights, in any and all contexts, simply because they are "rights". Such behavior can very easily become toxic and destructive.

Take for example the Second Amendment - written in the context of providing for the then-pertinent needs of militias and frontier settlers, it no longer serves those purposes. Yet there can today be little to no rational discourse about whether or not it should be rescinded in the context of the modern world, because so many people instinctively protect and enshrine it as a traditional right. In their zeal to rigorously defend the right, many people fail to fairly and fully consider the nature of the issue. Meaningful debate is next to impossible, obstructed by stubborn animosity and closed-minded bickering.

John said...

I agree that "rights" is a shorthand way of talking about freedoms that we really care about. I also agree with whoever it was who said that whenever people start talking about rights, something has gone wrong with the political system.

But I do think that the notion of "rights" as things we should not mess with for short term political gains is a very useful one. In the current campus debates, I think it is important to insist on free speech as both a right shared by everyone and an essential part of what makes colleges educational. I think the people who want to silence their opponents in the name of their own comfort are making a terrible, terrible mistake, just like all the people who willingly accept warrantless wiretapping through fear of terrorists are making a terrible mistake. In both cases I think reframing the question in terms of the Bill of Rights may help some people see what is at stake.

G. Verloren said...

But the Bill of Rights isn't what's important here.

This issue isn't about the Constitution protecting free speech. It's about how school administrators are willing to make ignorant decisions that end up making things worse in predictable ways. It's about how poorly thought out rules and systems can be abused, and turned against their purposes. It's about how incompetance, however well intentioned, is still incompetance.

Instituting a Speech Code at a public university isn't wrong because it infringes the First Amendment. It's wrong because it's completely counter productive.

Reframing the situation such that you take the focus off of the real problem and shift it onto the only tangentially related First Amendment doesn't make any sense, and I don't understand why you would suggest it.

Unknown said...

Well, I'll go out on a limb and say I think obvious taunting, threats, and incitement aren't necessarily protected by the first amendment. I think the problem here is the university should have thought of more effective ways to silence the racists, using the rules as they stand. The "open season" pamphlet sounds like a clear threat of violence that should have brought a police, and possibly FBI, investigation, with possible criminal charges. The university, as proprietor of the radio station (I admit I'm assuming) should have demanded the firing of a radio host who was besmirching its good name. And surely there were ways to deal with the KKK manikin out the window: disturbing the peace? misuse of university property? violation of a rental agreement on the part of the residents in that dorm room?

G. Verloren said...

The college could have and should have responded in more effective ways similar to what you suggest.

But they didn't, and that's the entire point. That's precisely what all the fuss is about. The people in charge of the school are demonstrably incompetant, and their failure to handle the situation properly has resulted in justified outrage.

pootrsox said...

I find amusing the fiery defense of "free speech" by those whose privilege has, for the most part, protected them from the harassment, the bullying, the demeaning and spirit-draining assault of hostile speech.

I've experienced only a very tiny portion of such assault, as a female who grew up Jewish. Given the amount of pain *I* felt, I recognize that I cannot begin to imagine how destructive it must be to be constantly assaulted with "hey baby, let's fuck" or "you're one ugly cunt" or "hey, nigger, get your black ass off our quad" or "you faggots deserve to be beaten to death!"-- all absolutely common remarks directed at women, at people of color, at GLBTQ folks.

Of course one should have the "right" to express one's beliefs, opinions, feelings, thoughts-- however foul others might find them. But one should *also* have the right to live one's life free of constant verbal assault. To me, the sort of "free speech" that is used to attack others (not their ideas, but their very persons) is in many ways akin to yelling "fire" in a theatre: something that SCOTUS has ruled *is* restricted speech.

There is a deep chasm between saying "I really think is ugly, stupid, dangerous, repulsive and ought to die" and shouting (or emailing, or texting, or posting banners saying) those same things at the people about whom you're talking.

As an employer, I have the right to prohibit assaultive speech in my workplace. Surely institutions of education have the same right? Isn't it the responsibility of the institution to protect all who are a part of it from assault?

Words *do* break people as surely as sticks and stones; citing that childhood "neener neener" at people who feel their very souls being burned by hatred is simply mocking their pain.

(Side comment: the issue at Yale concerned the Master and Associate Master of Calhoun College, whose job descriptions explicitly require that they maintain the college as a safe place.)