Freedom of speech needs revisiting

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The First...Amendment?

It’s been a rough couple of months for free speech advocates, to say the least. Nazis and white supremacists marched in Charlottesville. Campus protests were scheduled, and protests to the protests were planned and cancelled, only to be replaced by protests, followed by still-going-anyway protests, followed by, followed by, followed by… It’s enough to make you want to pull the plug on your Wi-Fi, which is completely understandable, so long as you’re only unplugging yourself and not your neighbor’s or coworker’s.

We’ll leave the NFL players taking a knee during the National Anthem alone for now. We’ve got a writer on it. Just you wait.

Our concern for the week is that there’s evidence that some Americans are hazy on what kinds of speech are protected and what kinds aren’t. Specifically, college students. Last month, the Brookings Institution released a study reporting how little American college students know about the First Amendment.

It’s not good.

Forty-four percent of surveyed students thought that hate speech was unprotected by the First Amendment, with another 13 percent reporting “Don’t Know.” Additionally, when asked whether shouting loudly in the presence of a campus speaker whom one opposed was appropriate, 51 percent said “Yes.”

The study notes that Supreme Court cases over the decades have qualified this right. In 1969, Brandenburg vs Ohio established that speech “inciting or producing imminent lawless action and is likely to incite or produce such action” is not protected. In 1969, Watts v. United States established that “true threats” are also off limits.

But inciting violence and true threats are not the same thing as a campus speaker with whom one disagrees, or even despises. About half of college students surveyed, according to the study, didn’t understand this, or didn’t care.

Students calling themselves Democrats, it should be noted, were more apt to give the wrong answers to these two questions. Whether that’s because of a certain kind of partisan ignorance, or whether they’re more sympathetic to the voices they see as marginalized by hate speech, is difficult to say.

As predicted, there’s been plenty of uproar about these figures. Bill Maher called it alarming on his HBO show. The Washington Post called it “chilling,” and the National Review said it revealed “our solipsistic culture.” The whole “trigger warnings on campus” issue got dredged up again from the media muck of earlier this year, despite no evidence of any epidemic of “safety rooms” or mass campus hysteria to be found.

Oh, we could quibble with the broader perspective of this issue. We could point out, for example, that Americans overall, not just college kids, don’t really know much about the First Amendment. They never have. In 2006, a McCormick Tribune Freedom Museum survey pointed out that only 28 percent of Americans (American adults, that is, not college kids) could name more than one of the First Amendment’s five freedoms, though twice as many could name all five characters of the Simpsons family. So that’s ten years of “duh” about free speech, and we’re all still here.

We could point out that, because civics instruction and history overall took a back seat to standardized testing subjects like math, science and grammar, to the applause of many of the voices now tsk-tsking and shaking their heads sadly, core knowledge wasn’t championed like it used to be. We could point to a decline in newspaper reading, which doesn’t help, and we could certainly point to school policy across this country, like what to wear or not wear on a t-shirt or what words you aren’t allowed to say in class or in the hallways, as understandably muddling the notion of Free Speech being an absolute.

But at the end of the day, we’d be hard pressed to ignore the implications of college kids not knowing that speech, even if despicable, cannot be legislated out of existence without those exceptions the courts have made over the years.

Dennis Miller once argued it was easier to let neo Nazis march and shout their incoherency into bullhorns rather than waste time trying to silence them, and that we should let them go nuts (again, metaphorically speaking) shouting their own racist ideology, where it will crumble under the analysis of free speech and unfettered, rational discourse. It’s easy to make this case, undoubtedly, when you’re not suffering daily aggressions and hostilities, micro and macro. What to do when racist and hateful speech is overpowering that discourse and marginalizing the oppressed is another story altogether, and concerns over such voices dominating our discourse should not be dismissed.

But certainly we can all agree that we should understand some fundamentals about the First Amendment. Like it or not, our freedom of speech rights do not except speech that is offensive, and they do not except speech that is deplorable. A law that legislates speech based on how much we like it does nothing useful for a democracy.