When Speech Isn't Free

Why you're probably wrong about the First Amendment

There's been a lot of discussion about freedom of speech and the First Amendment over the past couple weeks, from protests at Harvard to yelling at the neighbors.

And astoundingly, so many people are on the hunt to point out the hypocrisy of the other team that nobody has stopped to actually read what the law says on the topic.

Yelling fire in a Crowded Theater

Have you ever heard someone say the term: "You can't yell fire in a crowded theater" as a way to describe the limits of the First Amendment?

Fun fact: they're wrong.

This phrase is a paraphrasing of Supreme Court Justice Oliver Wendell Holmes' opinion in the 1919 case Schenck v. United States. The portion of the opinion is actually what scholars call a dictum, or a non-binding statement the author wants to make. It actually had no legal power when it was authored. In an even better development, Schenck was overturned fifty years later.

In Schenck, the court held that an individual arrested for protesting against American involvement in World War I actually had no constitutional right to do so. If you know anything about the First Amendment, this ruling should hit your ears like nails on a chalkboard. And it's for that very reason that the court overturned it in 1969.

So people aren't just incorrect when they say "you can't yell fire in a crowded theater." They are so incorrect that they are citing a non-binding statement written in passing in a legal opinion that was overturned almost sixty years ago.

Fire on Campus

Having gone to a relatively liberal university, I know full well the tactics that some use to shut down speech they dislike.

They often claim that the speaker is perpetuating some harm to them by voicing their opinion; that speakers are making the university "unsafe" for people in their marginalized group.

And they often claim that there are limits to the First Amendment; you don't have a legal right to say something so awful that it causes pain to another person—you can't yell fire in a crowded theater.

But like justice Holmes over a century before them, they're wrong. You are allowed to have even the most vile, hateful speaker on campus. From judge killer Angela Davis to Neo-Nazi Richard Spencer, people with vile, objectionable opinions worthy of scorn are still entitled to state their opinions in public.

So, What Speech Isn't Free?

In the aftermath of Hamas' massacre of over a thousand Israeli civilians, American college campuses rapidly became inhospitable for Jewish students, faculty, and speakers.

After weeks of escalation, Congress finally called the presidents of Harvard, Penn, and MIT to testify.

If you haven't seen the video of their performance yet, I encourage you to watch.

In light of their statements and their blithe treatment of the subject of genocide and harassment, many have called for the resignation of these three presidents.

While many view this as a proper demand to make of leaders who have lost any semblance of moral clarity, others feel that demanding these presidents either crack down on student speech or resign is antithetical to the text and spirit of the First Amendment.

Now, given my pretty strong opinions on the freedom of speech, you'd think I would fall into the latter camp. But you'd be incorrect. Let me explain.

While you can yell "fire" in a crowded theater, there still are some limits on the First Amendment. You can't use your freedom of speech to conspire to commit a crime. You also can't, for example, direct an armed and angry mob to violently attack and take over Congress, executing the Vice President in the process.

But that's for another time. As it applies to campus speech, there are two concepts in First Amendment jurisprudence that I think are highly applicable here:

1. Viewpoint Discrimination

Viewpoint discrimination is as simple as it sounds: if you are a business, university, government entity, or other institution, you are not allowed to treat the speech of others differently based solely on the views held by speakers.

For example, a school is not allowed to let students form a Republican Club without also letting other students form a Democrat Club or any other political club.

In these universities' cases, they are not allowed to bring the hammer down on speech from conservatives, religious groups, et cetera while giving carte blanche to those protesting against the state of Israel.

These universities have suppressed speech from groups that depart from the secular, intersectional, progressive beliefs so commonly found on Ivy League campuses. They have a constitutional obligation to treat students who fall within that in-group the same as they treat students falling outside of said in-group.

And they have failed tremendously to do so. After years and years of stifling speech, they suddenly decide to become free speech stalwarts the second that activists call for a violent revolution against Jews? I don't think so.

2. Severe and Pervasive Harassment

The second issue here is the topic of harassment and hostile environments. To risk oversimplifying, the courts have ruled that the First Amendment gives you the right to be a jerk, but not to do so in a manner that creates a hostile environment for a targeted group.

For example, you have a legal right to step into the middle of campus and shout a slur, as abhorrent as that might be. You do not have a right to organize a group of individuals to follow members of a minority group around, repeating said slur.

A more real example is one coming out of Midvale, Utah. A woman has recently gone viral after months of harassing her interracial neighbors.

To be clear, this woman has a legal right to be a vile person. She has the right to say rude things to them. But she does not have a right to speed by their house, chase down their child, berate them any time they step outside, and intrude on their personal property.

So when these university presidents say that there are "certain circumstances" that calling for the genocide of Jews would violate their codes of conduct, they hide the ball by failing to also say that the current behavior is so severe and pervasive that it does violate their code of conduct.

Jews are forced to take shelter from the mobs. Their study sessions are interrupted by gunfire. They are surrounded and shouted down in public spaces. The treatment of Jews on campus is indeed severe and pervasive.

The Way Forward Is Simple

Really, it is. It boils down to three simple policies:

  1. Treat all speech the same, regardless of the viewpoint being expressed

  2. Draw the line at severe and pervasive harassment, and enforce the rule when it is violated

  3. Mandate compliance with the previous two rules by all university staff.

If the presidents of the most elite colleges in the world cannot accomplish these three simple tasks, they deserve to be forced out. Good riddance.

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