Set off by the genuinely appalling theft of a huge anti-abortion sign (one of those signs with gross photos of allegedly abortion-age fetuses) by a feminist Professor at UC Santa Barbara, Freddie deBoer has a pair of posts arguing that the “social justice left” is abandoning free speech.
Although I don’t question Freddie’s report that “it is not at all unusual, for me, to encounter liberals and leftists who […] do not believe that controversial speech (what they call hate speech) should be legally expressible,” I do wonder if the people Freddie hangs out with are a representative sample of lefties. As Corey Robin points out, if anything today’s left seems less likely to question the legal doctrine of free speech than (say) during the Reagan years, when the MacKinnon/Dworkin anti-porn legislation was a major issue. Where is today’s equivalent of Catherine MacKinnon?
Anyway, I’m not posting to argue with Freddie. Rather, I wanted to get down some thoughts about different types of threats to free speech.
First, we have Government Suppression of Free Speech. This includes (but isn’t limited to):
1) When governments directly outlaw certain speech content – for example, the German government outlawing Holocaust Denialism, or the US outlawing cigarette advertising on TV.
2) The government determining that some public areas are not open to protest, such as “free speech zones.”
3) Copyright laws and trademark laws.
4) The government using the law, or the bureaucracy, to punish people for their speech. Or even just threatening to do so, as Boston Mayor Thomas Menino did when he said “If [Chick-Fil-A] needs licenses in the city, it will be very difficult,” in response to Chick-Fil-A’s owner’s opposition to same-sex marriage. (Menino backed down from his position, thankfully.)
5) Laws against libel and slander.
6) Directly shutting down newspapers and other media outlets.
7) Arresting protestors.
It doesn’t take much imagination to imagine contexts for most of those forms of government suppression of free speech that almost anyone who isn’t an anarchist would say is legitimate. We can’t say that it’s always wrong to arrest a protestor; to be able to make that call, we’d want to know the fuller context (what was the protestor actually doing that got her arrested?).
Second, we have Social Suppression of Free Speech. This includes (but isn’t limited to):
1) Social sanctions for stating the “wrong” opinions – or so much fear of social sanctions that speech is “chilled.” When right-wingers complain that for a left-winger to use the term “bigot” or “racist” “shuts down speech,” I think this is what they mean.
2) Economic sanctions for stating the “wrong” opinions. Or, again, so much fear of economic sanctions (such as losing a job) that speech is “chilled.”
3) Protests that have the effect of shutting down opposing speech – for instance, if protestors in an audience yell so loud that it’s not possible to hear the speaker.1
4) Capitalistic suppression, in which the owners of capital – such as newspapers, blogs, auditoriums, tv networks, etc – decide not to publish certain views. Or, for that matter, when the owners of an auditorium have security remove the people protesting the speaker.
I think that, for most Americans, social and economic sanctions are probably the things that are actually most likely to be shutting us up on a day-to-day basis. And when people say they want a “culture of free speech,” I think what they mean is they want a culture in which social and economic sanctions for speech are rare, or at least proportionate.
I can’t imagine any possible policy approach to decreasing “social sanctions” in which the cure wouldn’t be worse than the disease. But I would favor legal protections for employees so that they don’t have to fear being fired for their off-work-hours political speech, unless that speech is somehow directly relevant to job performance.
- Ken White at Popehat had a great comment about this: “The doctrine of the Preferred First Speaker holds that when Person A speaks, listeners B, C, and D should refrain from their full range of constitutionally protected expression to preserve the ability of Person A to speak without fear of non-governmental consequences that Person A doesn’t like. The doctrine of the Preferred First Speaker applies different levels of scrutiny and judgment to the first person who speaks and the second person who reacts to them; it asks “why was it necessary for you to say that” or “what was your motive in saying that” or “did you consider how that would impact someone” to the second person and not the first. It’s ultimately incoherent as a theory of freedom of expression.” [↩]
Of the 4 “Social Suppressions”, number 3 is distinct…and the one that //’s the Mireille Miller-Young case the best.
In the other 3, government has no obligation to stop the censors. Indeed, if it did, that itself would likely be a 1A violation.
However for 3, state action against the censors could easily be required by the equal protection rights* of the censored. The person whose sign was stolen or who can’t get into a lecture b/c protesters are blocking the doorway, has a legitimate claim to compelling state action.
*not sure if how much the actual equal protection clause is relevant here, but the general principle of equal protection under the law would be in play.
Oddly enough, you have excluded from your list what is probably the most common anti-speech thing around: The explicit classification of speech/acts as harassment, hate speech, discriminatory, etc. I don’t mean a conversation in which an individual says “you’re harassing me,” but rather things like laws/rules/regulations/codes.
This can be increased by literally passing new laws/rules; by enlarging the boundaries of what is covered (“we didn’t think this was a problem before, but we now say that it fits under ___ rule”); by increasing the enforcement; by increasing the penalties; and so on.
Some of these things are technically not always First Amendment insofar as it isn’t a government official doing the limitation. Some of them are government-imposed limitations on non-government parties (there are plenty of things that you can’t say to a co-worker, even if your employer doesn’t care and even if they would be perfectly legal to say to a stranger.) Others are government-facilitated, and the eventual enforcers are coerced or “encouraged” to do the ultimate work.
Similarly, I think that the line between how you classify “government” and “social” has become somewhat more blurry. This is unsurprising from a political theory standpoint: the government can usually be expected to try to increase its power if it can.
As an example:
-Sexist and racist speech at a college is not illegal.
-Sexist and racist speech might get you fired (or hired) based on how your boss feels, with or without the government.
-But then again, sexist and racist speech might get you in trouble with your school because the government has anti-discrimination legislation, and because the government sends the school a letter talking about title 9 and potential very-expensive civil suits for gender or race discrimination.
In the third example, the government is acting to achieve the ultimate goal of suppressing unwanted speech, but it has figured out the way to do so without causing a technical 1st Amendment violation. I don’t know if you should accurately be classifying that as a “social” sanction.
I like the post as a good framework for starting to think through this type of issue. It is well thought out, and while it’s not exhaustive it doesn’t claim to be either.
Using this framework, I would classify the Miller-Young case as Government Suppression-6. While there is a plausible argument that her conduct was purely private action (Social Suppression-3), it’s an argument that I don’t find persuasive: She is a government employee, she was acting during the workday and on the worksite. Also, she was actively trying to get students engaged and spoke of the University community as “we.” Clearly some of the witnesses / participants knew that she was a professor.
With all of these circumstances this falls into the category of government action notwithstanding the fact that government employees can in some cases engage in social issues in a purely private capacity.
“4) Capitalistic suppression, in which the owners of capital – such as newspapers, blogs, auditoriums, tv networks, etc – decide not to publish certain views. Or, for that matter, when the owners of an auditorium have security remove the people protesting the speaker.”
I’m going to divide this up into 4.a and 4.b. In the case of 4.a – which we see a lot – I don’t see a solution that’s not worse than the cure. What’s working against the owners of capital’s ability to do this, however, is the fact that the amount of capital needed to run a blog – and reach hundreds of thousands or even millions of people – is minimal. They’re not up there yet with newspapers, radio and TV, but it’s instructive to see what’s happening to those. Newspapers are basically going into the shitter, whether it’s the blatant bias, the lack of timeliness, or other considerations (in addition). I still read one every day because it gives you a bit of time to think (plus the studies showing that people retain more of what they read in physical media than they do online).
If 4.b is meant to cover protestors who are attempting to apply point #3 – drowning out a speaker who has been engaged to speak to an audience on a topic then I do not see this as a suppression of free speech. If I choose to give a speech (or bring someone into a hall I have hired to hear one) and publicize and obtained an audience, anyone who protests it to the extent that the speaker cannot be heard is interfering with the speaker’s freedom of speech and mine as well. They are perfectly free to speak themselves without interfering with someone else. Free speech rights do NOT include the right to speech that blocks two other people who wish to communicate with each other from doing so. It is analogous to jamming a radio or TV station or blocking the distribution of newspapers or magazines because you don’t like the content.
Disgracefully, 3 and 4.b have happened many times on university campuses – which are supposed to be bastions of the competition of ideas – and the adults who are supposedly in charge of teaching this very concept to young people have sat by and watched it happen. Those people should either be required to honor free speech or they should be replaced with people who will.
Arresting a person who is trying to keep other people from communicating with each other is not a free speech violation, it is free speech preservation.
I think that in this context the term “controversial speech” is meaningless and should be replaced. Consider what happened here. The speech being given was that fetuses should be considered human beings and that destroying them is murder. Is this controversial speech? Not to at least 10’s of millions of people in this country. It’s controversial to Miller-Young, certainly – but then much of what she says is controversial to many other people.
It seems to me that calling it “controversial speech” labels the speech in a debatable fashion and takes attention away from what happened. It makes more sense to me to edit this statement to say “it is not at all unusual, for me, to encounter liberals and leftists who […] do not believe that speech that opposes their ideas should be legally expressible” That makes the matter much more plain and removes any judgement of what others not involved in the action may or may not think of the speech itself.
Also – the classification of free speech violations here don’t completely cover what Miller-Young did – and what she did was more chilling in a way than anything else here. She didn’t just drown these people out – she actually physically assaulted the speakers and physically stole and destroyed their means of speaking – and then boasted that she was able to do it because she was stronger than them! It reminds me of times in this country when publishers of abolitionist newspapers would be assaulted and would have their newspapers stolen and their printing presses destroyed. While “Government 6” covers shutting down someone’s speech directly, that can be accomplished by the government without using direct force against the speakers. And while she is an employee of the government, she didn’t lead government forces against the speakers – she led a mob. This woman acted just like the proponents of slavery in this country once did.
Amp, kudos to you for calling attention to this here.
This makes it sound much more benign than it was. From the post:
“…one of those signs with gross photos of allegedly abortion-age fetuses…”
Years ago, I spent over a week up in the night with a terrified three-year-old having nightmares about dead babies after we accidentally drove past a protest with those types of signs. Whether graphic images like that should be allowed in various public spaces is certainly controversial.
I don’t really have much to say about the main part of your post, but I question your definition of “controversial” – as far as I understand the word, “controversial” means “creates or invokes controversy”. Something cannot be controversial only to one side of a debate but not the other; the fact that there are two (or more) sides is what makes it controversial for everyone involved, whether or not they agree with it.
Re: She is a government employee, she was acting during the workday and on the worksite
Employees of a public university (like Miller Young, or for that matter like me) are only in a very tenuous and technical sense ‘government employees’. I mean, yes, the state pays her salary, but it also pays the salary of the janitor at the DMV. She doesn’t actually have any coercive government power at her back.
As a pro-lifer, I fully encourage more pro-choice women’s studies professors to harass teenage abortion protesters and steal their signs. It’s great public relations for my side. And no, I don’t think she should face legal or professional sanctions for what she did, a bit of public scolding and shaming would be better. We put too many people in jail as it is.
Well, what’s “controversial”? Something that one person doesn’t like? Something that 200 million people don’t like? I doubt that anyone would agree with the first. I don’t doubt that most people would agree with the second. Where’s the break point? I think the uncertainty of that makes the use of the term sketchy. I also think that the whole POINT of the First Amendment is to protect unpopular and controversial speech. Popular speech is a lot less likely to need it. I personally consider that the fact that speech may disturb 3-year olds is unfortunate but not a reason for the government to suppress it’s public expression.
If the First Speaker is standing on a park bench holding forth in the Boston Public Gardens or the steps of the State House then I agree with this. If the First Speaker is standing on a stage or speaking on a radio or TV program or podcast that has been engaged through payment of rental or the obtaining of permits for the express purpose of the deliverance of his or her speech then I disagree with this.
Amp:
Is this what has happened if you ban someone from the blog, Amp?
Hector St. Clair:
This woman has no concept of what the right to free speech means, or what the principle of the free exchange of ideas means (which is a principle that at least public universities are founded on). She should be fired – first because she has shown she is ignorant of basic principles, and second because anything less will likely simply embolden those of her political and social persuasion and justify teaching the justification for such acts to the young people on campus. I suggest that if a pro-life professor – if one can be found – assaulted some abortion rights protestors they’d be out of a job.
Eytan, you make a good point, but I think it supports mine. “Controversial” tends to paint a negative light on a particular viewpoint without really illuminating the real issue involved. Clearly the ideas expressed were controversial to this feminist professor and the young people she led – but so what? What does it matter if it is controversial to one person or millions? EVERY idea is controversial to some group or another, so calling an idea “controversial” labels something without really imparting any information. And the fact that a large number of people find an idea controversial does not and should not mean that it has less First Amendment protection than others.
I’m not saying that being controversial is good enough reason to suppress speech. It’s not.
I’m also in full agreement with you that the defining borderline between “controversial” and “non-controversial” is vague. So are a lot of other terms we use in English, which doesn’t make them any more sketchy or useless. It just means that some cases are easier to determine than others.
In any case, it seems to me that the whole point of the free speech protection is to protect controversial speech. Speech that’s not controversial does not need protection.
Re: This woman has no concept of what the right to free speech means, or what the principle of the free exchange of ideas means (which is a principle that at least public universities are founded on).
Employees of public universities have every right to disbelieve in free speech. You can be a communist and be employed at a public university, for example. There’s no ideological loyalty oath involved in the process of becoming an academic, at least not anymore.
@Hector – I agree that concluding that the professor’s actions are government action isn’t as cut and dried as looking at who signs her paycheck.
But when I watch the video it appears to me that she is leveraging her leadership position in the university to try to get students engaged on her side of the argument. She then takes the sign into a university building and (presumably) up to her office. Would she have taken the same actions if she didn’t have some level of authority on campus? Did bystanders who knew she was a professor take a message from her actions that they wouldn’t take from a student doing the same thing? Again, taking everything into consideration I believe this qualifies as government action.
That said, no, we shouldn’t make a Federal case out of this. I hope that the university leadership has had a verbal counseling with the professor and made it clear that she can’t act like this in the future.
I should say, I am pretty sure that US case law would agree with me on this. But I’m mostly speaking from a sense of what I think the law should be.
No, no: the FBI should investigate! Always! If this isn’t a threat of violence–accompanied by ACTUAL violence, what is? (\sarcasm)
More seriously: From a criminal perspective, she should be treated like anyone else who assaulted someone and stole their things. The concept of the First Amendment is that it shouldn’t matter much whether her point of view is popular or not. The goal is to have outcomes be the same for “Nazi who steals an anti-racism sign from an Israel rally” and “noose-waving KKK member who steals a sign from an anti-racism rally” and “liberal feminist who steals an anti-abortion sign from a rally.”
I think she should be promptly fired, and not put in jail, because this behavior doesn’t seem unusually criminal. But then again I’d also say that about the Nazi and the KKK dude.
Indeed they do. They do not, however, have a right to act on it, especially in a criminal fashion, and especially not in their workplace. And TEACHING it – which, by deliberately engaging students in her action she seems to have done, is in my opinion legitimate grounds for dismissal.
G&W – you said:
and then you said:
So, to be clear – you’re saying that assaulting someone and stealing their stuff is not unusually criminal?
My opinion here, which I assume will not surprise you, is that she should be prosecuted. Whether or not she should be put in jail should be up to a judge and jury. On the other hand, I do not believe she should be fired until after she is found guilty – I do not believe that people should be fired for having criminal charges placed against them without a conviction (regardless of what the job in question is).
I think “assaulting someone and stealing their stuff” is a vague description. That same description can cover Mugger Joe leaping out at someone, beating them over and over until they’re unconscious, and stealing their wallet; and this woman grabbing a protestor’s sign and later leaving a scratch on their forearm when the protestor was (understandably, since they’d just been robbed) trying to force their way into an elevator. They are both crimes, but one seems much more small-bore than the other, and one of the things prosecutors are supposed to consider (as I understand it) is whether or not pursuing a prosecution is a good use of court time and of taxpayer money.
I’m not saying she shouldn’t be prosecuted. I’m saying that if they choose not to prosecute, that would be a reasonable decision. I also think prosecuting her for some relatively minor crime would be reasonable (say, disturbing the peace). I don’t think throwing the book at her the way they’d throw the book at Mugger Joe would be reasonable.
This would be easier to argue if she were pro-life, since then I wouldn’t be vulnerable to an accusation of going soft on criminals from my own side. But I think I’d say the same thing were the political roles reversed. Not every instance of a broken law is a big enough deal so that it should wind up in a courtroom with criminal penalties.
Well, that seems like it’s more a matter of property rights than free speech.
To see what I mean, suppose that the owner of the auditorium where the speech is taking place, has made it clear that her auditorium is a place in which audience members are allowed to yell out, and that if the speaker isn’t able to respond well to hecklers that’s the speaker’s own look-out. Wouldn’t that change your opinion?
Pretty much.
I’d argue that it’s a just and reasonable example of suppression of speech. But it is still suppression of speech.
Maybe she should be fired? I think it might be reasonable to fire her. But to best be able to fairly make the “she should be fired” determination, I’d want to first know if she’s generally a good professor, if this incident is unusual or part of a pattern for her, etc..
Everyone deserves to be judged based on more than their worst moment. (Admittedly, I’d whistle a different tune if she had pulled a gun and shot the protestor.)
At least to me, controversial doesn’t have that negative connotation. An opinion or issue is controversial if many people disagree on it. I can think of many issues – lgbt rights, for example – that I think very positively of which are nonetheless controversial.
Amp – I don’t disagree that there’s a distinction between this case and a mugger, and that the prosecution should reflect that. I was responding to G&W who, in a single post, both equated Prof. Miller-Young’s actions with assault and stated that her actions were not criminal.
Eytan:
Eytan, gin-and-whiskey said that her actions were not unusually criminal, not that they were not criminal at all.
gin-and-whiskey:
I can’t tell if gin-and-whiskey is saying that she should not be prosecuted, or that she should be prosecuted but her sentence, upon presumed conviction, should be light. In the latter case, I can understand the argument. (And in the former case, I don’t per se disagree, but I’d want to dig into it further than I have time to, right now.)
Technically, what she did is a felony, in many or most jurisdictions: robbery, the taking of property by force or threat of force. Plenty of felonies result in no jail time. Plenty of misdemeanors result in jail time. As far as ultimate severity, there’s actual overlap, even if conceptually felonies and misdemeanors are distinct levels of crime.
As robberies go, this sounds like a pretty minor one; the force was not deadly, and in those circumstances was unlikely to escalate into deadly force. At the same time, any time you get physical, there’s that tiny risk that someone will fall and whack their head on the pavement or the coffee table, which is presumably why the legislatures, in their infinite wisdom, have made use of force generally illegal.
Grace
#2. I presume she’ll be prosecuted and I also presume that she’ll end up with some sort of relatively minor sentence–that said I would guess that she’ll plead out and won’t go to trial, and that tends to reduce a sentence still more. As degrees of criminality go this is not especially far up the list. Frankly the harm she would suffer from being fired would exceed the harm from the typical sentence for this sort of thing.
Eytan, “doesn’t appear to be unusually criminal” = “as degrees of criminality go this is not especially far up the list;” I’m not sure where you are getting the idea that I said this was legal.
Also, you appear to be reading one sentence of my post without reading the rest of it; the “she should be treated the same” was made in the context of the other two explicit examples of “same act, different actor.” If you want me to explain that more: I think she should be treated the same as other similar criminals who have committed other similarly-not-so-serious acts. However, I do not believe that most social justice folks who are defending the professor would be defending an equivalent criminal act motivated by conservative thought.
Anyone who is defending her actions (and I’ve certainly seen more than a few “we stand with her” posts) seems to be doing do based on the CONTENT. And that is an inherently anti-First-Amendment position.
Very off topic: Alyssa Edwards MUST be the model for the image accompanying this post, right?
G&W – I seem to have misunderstood you then, my apologies.
Thanks for analyzing this. Even if it’s not perfect, it’s miles beyond the usual “censorhip!”/”only a government can censor!” dueling monologues.
Perhaps Overton windows should be in the discussion– any recommendations for descriptions of how they get enforced and moved?
Eytan,
I think, if we’re trying to define what controversial speech is, it makes more sense for you to change this statement to: “Speech cannot be uncontroversial only to one side of a debate but not the other.” In other words, if I say A, and you agree–A–then there is no controversy. If I say A, but you say B, then it doesn’t matter whether I think it’s uncontroversial. It’s not uncontroversial unless we both agree.
Amp,
I’m not sure how to phrase this, but I think that there is a reasonable expectation of speech suppression based on audience expectation (perhaps based on audience consensus?) when a person is a part of an audience of some size. For example, if 50 people go to see a movie and one person insists on talking through the whole thing, that person should be socially suppressed even if the owner of the theater, upon hearing complaints, says, “I don’t really care. You all paid the same amount of money.” I realize that such a situation is unlikely, because most theater owners understand that individual audience members reasonably do, in fact, give up some of their speech rights (socially, if not legally) when they gather for an event like a movie, a speech, a lecture, or even a stand-up comedy show. If you have a reasonable expectation that other people have made effort to gather to hear someone else, and not to hear you, and those people have a right to be where they are, then I think you do have some level of obligation not to interfere with the communication that is occurring.
There’s a dictionary definition and a functional definition of “controversial.”
There is technically a controversy about whether or not the world is about 6000 years old, insofar as there are some folks who believe that. There is not a functional controversy, however. Rational people do not think the claim is even possible. It would be inaccurate to reflect that as a “controversial” fact, at least in common parlance.
If you mean “has made it clear to the speaker” and if the auditorium owner is the person who engaged the speaker directly instead of hiring it out to the people who engaged the speaker, then yes. I call it a First Amendment issue because generally if people stand up and attempt to (or succeed in) shouting down a speaker in such a venue and then get hustled out or arrested for their act, they claim that their free speech rights have been interfered with – which they have not.
Assault and theft and suppression of free speech and a complete lack of repentance for all of them are pretty much red lines for me as far as this kind of thing goes. Everything I’ve read on this tells me that she still thinks that overall she had justification for her actions and that she has rights that supercede those of the people she assaulted.
If you mean “has made it clear to the speaker” and if the auditorium owner is the person who engaged the speaker directly instead of hiring it out to the people who engaged the speaker, then yes. I call it a First Amendment issue because often if people stand up and attempt to (or succeed in) shouting down a speaker in such a venue and then get hustled out or arrested for their act, they claim that their free speech rights have been interfered with – which they have not.
Assault and theft and suppression of free speech and a lack of repentance for all of them are pretty much red lines for me as far as this kind of thing goes. Everything I’ve read on this tells me that she still thinks that overall she had justification for her actions and that she has rights that supersede those of the people she assaulted.
Have you gone mad?
This isn’t something where the facts are in dispute. Everyone agrees on what happened–including the professor, for example. The standards for firing someone who takes someone’s stuff; in their role as a professor; during working hours; on campus; in front of a ton of witnesses; and who admits doing so? Those standards are pretty darn low.
Whether or not she pleas out or gets convicted is irrelevant: the school can (and should) act on what is known to be true.
It is (telling? surprising? not so surprising at all?) that these are the same colleges which support the expulsion of an accused rapist based on a 50% standard of proof and a “finding” by a no-due-process wholly-civilian “court,” even if the accused student denies it the whole way. And yet, we’re supposed to wait for a criminal conviction before concluding that the professor’s ADMITTED act was wholly outside the scope of the “professionally acceptable” realm, which is–for obvious reasons–a much tighter standard than the “not get expelled” realm and is not even comparable to the “criminal conviction” realm?
That is bloody nuts.