Some basic truths and ways to think about ‘free speech’

To make sense of this year’s battles over free speech in Berkeley, Charlottesville and elsewhere, it helps to keep in mind four basic First Amendment truths.

First: The First Amendment means what the Supreme Court says it means.

To be precise, it means what at least five justices on the current court say it means. When you exclaim, “That violates our First Amendment rights!” you are simply making a prediction that at least five justices will agree with you. We have decades of Supreme Court precedents to help make our predictions more accurate.

Second: Only the government can violate the First Amendment.

Our Constitution is a series of constraints on government and government alone. (Government includes federal, state and local and their subdivisions, including Cal.) The Constitution does not bind corporations, unions, churches, individuals or private entities.

So when Twitter terminated Milo Yiannopoulos’s account, it infringed his free speech, but it didn’t violate the First Amendment – Twitter is not the government. Same with Google firing an employee because of his email denigrating women’s abilities in tech. Same if the National Football League or one of its teams fires or suspends a player for taking a knee during the National Anthem. Nongovernmental speech restrictions don’t violate the First Amendment.

Third: There is no “hate speech” exception to the First Amendment.

This is a more contentious proposition because so many people think hate speech should be outlawed. But over the decades the Supreme Court has ruled time and again that what many call hate speech is protected by the First Amendment.

Hate speech is not a legally recognized term, and it means different things to different people. In general, people use the term to refer to speech that disparages individuals or groups because of their race, religion, nationality or ethnicity. But the court has consistently held that such speech can’t be punished.

For example, the court decided that a Ku Klux Klan leader could not be convicted for advocating white supremacy and urging that “the nigger should be returned to Africa, the Jew returned to Israel.” In another case, the court decided that a fascist speaker could not be punished for provoking outside protesters to throw rocks through the windows and attacking “atheistic, Communist Jews or Zionist Jews,” leading his audience to yell “dirty kikes!” and “send the Jews back to Russia!”

The court ruled that free speech may “best serve its high purpose when it induces a condition of unrest…or even stirs people to anger.” And of course the federal courts ruled that uniformed Nazis couldn’t be prevented from marching through Skokie, Ill., a mostly Jewish town with many Holocaust survivors.

The current Roberts court has not questioned or retreated from these precedents. Indeed, it has reinforced them, ruling for example, that homophobic and anti-Catholic protesters could not be punished for picketing at a military funeral, displaying signs proclaiming “God Hates Fags” and “Priests Rape Boys.”

It also struck down a California law restricting the sale of extremely violent video games to minors, including games that allowed gamers to indulge in “ethnic cleansing” and “gun down African-Americans, Latinos or Jews.” And this June the court held that a rock band calling itself “the Slants” was entitled to a federal trademark on the name even though the term would be offensive to a large number of Asian-Americans who consider it a racial slur. In short, the court has flatly rejected invitations to treat hate speech, however defined, as a category deprived of First Amendment protection.

Fourth: We are not helpless to deal with speakers whose views we loathe.

It is well established that government, even though it can’t ban speech because of its viewpoint, can impose reasonable “time, place and manner” restrictions on speech. That is, you may have a right to express hateful ideas, but you don’t have a right to express them whenever, wherever and however you choose.

Government (including Cal) can regulate the venue, the schedule and the way in which a speaker can communicate his or her ideas. It must take reasonable measures to ensure the safety of the speaker, the audience and protesters, and this may impose some costs. But it’s better than giving in to a “heckler’s veto” or saying there are some closed questions that no one is allowed to debate.

We the people, and government, can also combat views we despise with counter-speech, condemning hateful ideas, correcting facts, promoting civility, and advocating the truth. As Justice Louis Brandeis said 90 years ago, the remedy for speech we consider dangerous or disturbing “is more speech, not enforced silence.”

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