Free Speech Isn't Free-of-Consequences Speech

In a lot of discussions about free speech in America, typically referring to the First Amendment, I've seen what feels like conflation of several different ideas into one concept, leading to the use of strawmen to avoid actual discussion, often unintentionally. I'm not a constitutional scholar, but from decades of reading and recent court cases, I can tease apart the separate issues.

Give me some runway to define the situation before I get to the heart: consequences to speakers who engage in extreme speech.

Government-run institutions, whether at a local or federal level, can't pick and choose the speech they allow. That's the fundamental bedrock of free expression in America: in whatever fora are available in which some people may speak (or simply be), the government cannot choose among various kinds of expression and choose which is acceptable and which isn't. The sole exception is a sub-category of hate speech, in which the statements or actions will credibly lead to the imminent incitement to "lawless action." (The Supreme Court set this test in Brandenburg v. Ohio.)

This comes up routinely when governments attempt to create "free-speech areas" far from the subject of a protest, limit or control artistic expression in public spaces and buildings in which other forms of art are fine, or at a college that tries to block a visitor, speaker, or instructor on the basis of what they have said in the past or reportedly plan to say.

This can seem awful. Why should a hate group like the KKK (which now exists as dozens of fractured groups) be allowed to march, hold a rally, speak on a campus, or distribute flyers when they have a history of inciting violence? Books have been written about why it is (or why it shouldn't be), but it's the state of how things are and reflects how courts will handle disputes.

It's also noted by the ACLU, seen as a stalwart of protecting left-wing speech, that it defends the KKK and others both on general principles, but also because it consistency finds that the rights it wins in courts in those cases it later uses in defense of liberal principles, too. As the ACLU has written, "[T]he Supreme Court’s decision in 1969 in Brandenburg v. Ohio upholding free speech for the KKK was the principal decision relied upon by a lower court the following year in overturning the conviction of Benjamin Spock for opposing the draft."

(We also don't have a rule of prior restraint in America, which is censorship before the fact. The government can't prohibit a book from being published because of concepts it contains that might be subject to criminal charges or civil action. An exception is granted for national security, and it gets very murky. Private parties can't bypass this by suing to prevent the release of material, because they must rely on the courts and government intervention, producing the same effect. I bring this up for a point later.)

Those who follow norms of civil discourse can't win when confronted with those who have no concern about adverse outcomes. The primary confusion I see in discussions is the conflation of following constitutional edicts with endorsement of speech. This regularly (but, honestly, not that frequently) comes to the fore on college campuses, because they tend not just to encourage lots of different kinds of discussion, but also have students, staff, and faculty who want to bring in views contrary to the prevailing campus attitudes.

This came up with Milo Yiannopoulos' recent "Dangerous Faggot" tour, the title of which was even intended to stretch the limits of acceptable speech in reporting on it. Yiannopolous is a provocateur, who has no fixed opinions — it's possible to find several contradictory ones among any few year period — and has profited well from his current extreme right-wing, white-supremacy-adjacent position.

Because colleges allowed other speakers, there was no effective way to bar Yiannopolous, even though he had previously released information during talks harmful to people on campus, had violence break out at speeches (sometimes between protesters and counter-protesters), and had announced his intention to release damaging information about students at UC Berkeley. Colleges sometimes try to present a bill for security or have security requirements for groups bringing in speakers, but these seem to not pass a smell test, either, from what I've read, as they discourage speech.

UC Berkeley couldn't win. It was a clear constitutional violation to bar him from speaking, but allowing him to speak could have caused harm to students. In most cases, people don't engage in this kind of speech, because of the potential for consequences.

Freedom of speech isn't freedom from criticism of that speech. A requirement to adhere to the First Amendment doesn't muzzle anyone. UC Berkeley's Chancellor, for instance, released a statement that included this: "In our view, Mr. Yiannopoulos is a troll and provocateur who uses odious behavior in part to 'entertain,' but also to deflect any serious engagement with ideas."

The university can't restrict protests and counter-protests under the same guidelines. As disruptive as it might be, free speech isn't so much better served by more speech (a common trope), but by the robust encouragement of speech. That is, the trope suggests we should hear as many terrible ideas as we can, so that exposed to light they shrivel up. I'd rather say that terrible speech should be heard in order to bring together opposition to that speech with the clarity of why it is wrong. (This happens in opposite, too: an inclusive speaker being protested by bigots often rallies counter-protesters and a reinforcement of inclusivity.)

Berkeley has to allow Yiannopoulos to speak because the institution invites speakers and allows organizations to allow speakers, but they don't have to stifle speech in opposition to his — nor can they stifle counter-protests to those protests. That's one consequence.

Freedom of speech doesn't provide you commercial fora. Yiannopoulos has a book contract with Simon & Schuster, which ostensibly will be a Bill Maher-style humorous takedown of political correctness that doesn't include the kind of hate speech he routinely engages in. It might be less offensive, in fact, than the typical Ann Coulter book. Maher had Yiannopoulos on his show recently, in a widely condemned move. CPAC (at this writing) has him featured as the keynote presenter at an event dedicated to conservative principles.

Threats of boycotts against Simon & Schuster do not equate to silencing him, despite the efforts to paint it that way by a surprising number of publishers, free-speech groups, and his agent. Our rights in the U.S. prevent the government from preventing your book being published, including threatening publishers that might produce it. It doesn't guarantee your terrible ideas turn into a book contract, nor that a publisher, once offering the contract, doesn't tear it up. (Update: Simon & Schuster canceled the contract.) (The publisher could be sued, conceivably, if it cancels the contract in a way that breaches its terms.) Maher can uninvite Yiannopoulos with equal impunity. CPAC can likewise cancel his speech. (Update: It did.)

These are all the consequences of free speech. Yiannopoulos can publish in other ways, including self-publishing, finding another publisher, or even buying a high-volume laser printer and get the results trimmed and bound and selling the book on street corners and via mail order. All of those actions are protected from government interference. He can use the Internet to spread his ideas, as he has long done, and companies can ban him from their services, as Twitter did, without banning him from the Internet. (Commercial Internet providers work within a form of common carrier laws that immunize them against data that passes over them in exchange for them not interfering with it.)

(About prior restraint, above: Simon & Schuster has whatever rights to review his work before it goes into print; that's not prior restraint. The government can't oversee it or prevent its publication, though a successful libel lawsuit afterwards could have the consequence of the publisher pulling it from sale.) 

Consequences of civil disobedience and violence. Constitutionally protected free speech also isn't immune from extra-legal responses by individuals and groups, which is where police and courts get involved. A group might choose to prevent Yiannopoulos' speech by barricading entries and screaming to prevent him from being heard. That's a civil act and could result in arrest. The people engaged in civil disobedience can't carp if they suffer a consequence from denying speech; many revel in it, showing the flaws in a system that has no fetters, and many examples of civil disobedience changed the world.

People may also choose to engage in violence. The "punch a Nazi" meme that has been rolling around since white-supremacist Richard Spencer was punched while giving a video interview must be paired with the notion that the assailant could be arrested, charged, convicted, and sent to jail for their actions. That, again, is a consequence and some people may choose what they believe is the moral high ground of assault knowing the potential outcome of incarceration.

Campus disinvitation is not frequent, but it's used to score political points. The number of times people try to bar speakers from campuses with any kind of organized or substantive effort is relatively few, usually focused on a few individuals, who are often on the far right, but sometimes on the far left. These incidents are blown up out of proportion by those who are often far less extreme members of the same ideology to use as political props.

One group, FIRE, has tracked this since 2000, and has over 300 incidents involving substantially fewer people — for instance, William (Bill) Ayers has been the subject of eight disinvitation attempts, half successful. FIRE defines disinvitation broadly, so this includes institutions asking someone to not come, people withdrawing their attempt to speak, and people being unable to speak while present. Only about half of the attempts in the database were successful, but about 2/3rds of attempts were from left-leaning groups.

You don't have to smile and agree. One additional point related to the recent Washington State Supreme Court decision that a florist who provides flowers for weddings cannot choose to discriminate against protected classes, whether by race, gender, marital status or others. In this case, a florist who routinely did flowers for a gay couple declined to do their wedding arrangements, citing her religion.

The florist maintains that her arrangements are protected artistic expression under the First Amendment, as are her religious beliefs. In a statement, she said, "The state is trying to use this case to force me to create artistic expression that violates my deepest beliefs and take away my life’s work and savings, which will also harm those who I employ. I’m not asking for anything that our Constitution hasn’t promised me and every other American: the right to create freely, and to live out my faith without fear of government punishment or interference."

But her statement muddles principles, which is a reason the court found so strongly against her: "Public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined."

She can make all the flowers she wants and have any religious belief she wants. She simply cannot choose in a commercial setting using a discriminatory filter about who to serve. She wants to have her cake (well, flowers) and eat it, too: to be able to apply personal beliefs in a secular realm. This is just as clearcut as if she wouldn't create bouquets for black people, but would for everyone else. (You can refuse service for all kinds of other legitimate reasons, they just have to be applied to everyone.)

But there's one bit of this story that was missed. Public accommodation laws don't require that the people operating a service have to suppress their personal beliefs in providing service, so long as they don't act in a discriminatory fashion or express hate against a class in a way that would constitute that in effect. (As I understand this, of course.)

The florist can, for instance, openly discuss her religious beliefs with customers, as little as many might want to hear them. She isn't stifled. She's not required to smile. She's not required to agree with her customers about their beliefs. She doesn't have to put a rainbow flag in her window.