Howard Dean thinks “hate speech” is not protected by the First Amendment. A New York University professor was given space in the New York Times to deride the idea of “a blanket permission to say anything anybody thinks” and to defend protestors who, using violence, shut down a speech that was to be delivered recently by Charles Murray, the social scientist. A political science professor at Middlebury, the college where Murray was barracked, jostled, and threatened, apologized to the perpetrators for inviting Murray.
Justification of modern, left-wing fascism and spineless capitulation in the face of it is becoming more common. The illiberal tide is rising. This isn’t just a thing among wacky rich kids at colleges that aren’t worth the fees they charge. No, a growing minority on the left argues against the principle of free speech and against the idea of open debate. They use bad law and bad philosophy for their arguments.
They would, without a doubt, gravely regret the consequences if they got their way, for the results would be pernicious.
Ann Coulter, the right-wing provocateur, was invited to speak at the University of California, Berkeley, recently, which infuriated campus militants. Some of them protested and threatened massive disruption, at which the university caved in and canceled Coulter’s speech. The censors — they are thought police, the same ilk as book burners — had won. They deployed the threat of violence to silence a voice that disagreed with them.
Former Vermont Governor and Democratic National Committee Chairman Howard Dean thought this was just fine. Citing a tasteless Ann Coulter joke about Timothy McVeigh blowing up the New York Times building, Dean wrote on Twitter “Hate speech is not protected by the first amendment.”
Dean is an ass. He is flatly wrong, as every scholar of the First Amendment could show. Hate speech, crazy speech, idiotic speech, communist speech, fascist speech, racist speech, sexist speech — they’re all protected by the Constitution. Incitement to violence, speech actually urging people to attack others, is a rare exception to the freedom of speech. But joking that you wished someone were dead doesn’t count as incitement.
Thankfully Dean didn’t find much support on progressive Twitter for his views. Bernie Sanders, Dean’s fellow Vermonter, condemned the effort to silence Coulter. “What are you afraid of?” he asked, “Her ideas?” (Sanders was speaking more about students than about former presidential candidates turned quasi-lobbyists.)
While a minority on the left, these Berkeley censors and their cheerleaders, are few and far between. Ulrich Baer, a professor at NYU, used the columns of the New York Times to defend the violent mob at Middlebury which shut down scholar Murray’s speech. This wasn’t censorship, Baer wrote, but “an attempt to ensure the conditions of free speech for a greater group of people.”
It was worse, in other words, to allow Murray to speak about Coming Apart, his book documenting growing social and economic inequality and immobility, than it was to silence him. Murray’s arguments, according to this case, are so evil that there is “no inherent value to be gained from debating them in public.”
Arguments like Baer’s so offend the good, reasonable, and widely held assumptions of the public mainstream, that sometimes it is difficult to make counterarguments. The case in favor of the traditional and tolerant view is so obvious that many people are at least momentarily lost for words when the need arises to articulate the compelling arguments that support it. We’re likely initially just to point, shout “censorship! ” and call it “illiberal.” But most peddlers of the new fascism do not object to such initial sallies. They will, indeed, plead guilty as charged. Just as an opponent of abortion rejects Roe v. Wade and an abolitionist rejected institutionalized slavery, so do illiberal progressives reject the expansive notion of free speech.
You can’t attack such people by pointing out that they reject a principle of our nation’s founding, because their political agenda is largely to overthrow the principles of the founding. They response will amount, to “Yes, and?” If you say, “These are the rules we have settled on,” they say, “we never settled on these rules.”
So it’s better to appeal to them in a way they could understand. And what they understand is raw power. They don’t bother with principle. Their principles always give way to their quest for control.
So it’s probably best to pose the hypothetical case and point out to members of the left that they won’t always be riding high, dictating terms to the rest of us. How will they regard the ability absence of free speech when it is their opinion that is being suppressed?
A good example of how this debate needs to be conducted came recently when a liberal tweeter wrote: “First Amendment absolutism is bizarre.” The appropriate reply came for Adam Serwer, a liberal journalist, who noted, “If America had ‘hate speech’ laws they’d throw BLM protesters in jail *first*.”
The power to censor will always work to protect views held by the powerful from criticism by the powerless. Consider a Bull Connor armed with “hate speech” laws. Imagine whom J. Edgar Hoover might have jailed if offensive speech were criminal. Think how the powerful elites could wield the trendy idea of speech-as-violence to crack down populist challenges to their power.
When academics like Baer posit that speech police could protect the marginalized, they’re indulging their fantasies. Last November’s election surely showed the left, as it showed everyone without their eyes closed, that public opinion is not where liberal elites thought it was.
Even if appeals to this country’s history, traditions and norms mean nothing to Gov. Dean and Prof. Baer, you’d think that the 2016 election would do the trick.
