Let's start with the basics. The First Amendment to the United States Constitution protects Americans' right to free speech, and that's not just about you being able to use your words.
The First Amendment allows people of faith to practice without persecution. It allows journalists to report in the public interest. It allows dissenters to organize and protest. It's what allowed watchdogs to record instances of police brutality, including Eric Garner's killing at the hands of New York police officers. It's what allowed Jonathan Bachman to capture that iconic moment before Black Lives Matter protester Ieshia Evans—standing serenely with open arms, summer dress billowing behind her—was arrested on July 9, 2016, by Baton Rouge police.
Here's what the First Amendment definitely doesn't protect: a white supremacist punching a woman in the face, as we saw in Berkeley, California, during a pro-Trump demonstration on April 15. Violence erupted between self-described anti-fascist protesters and right-wingers who descended on Berkeley from across the country, ironically under the auspices of a "free speech rally." Both sides wore masks and bore clubs.
All eyes fell on the city again when University of California, Berkeley officials canceled right-wing pundit Ann Coulter's campus talk on April 27 due to safety concerns. (The administration later offered to reschedule her event in May, but Coulter declined.) Two conservative groups claimed in a federal lawsuit that the university was restricting their speech, and Coulter called Berkeley "the graveyard of the First Amendment."
"For the future of our democracy, we must protect bigoted speech from government censorship," David Cole, national legal director for the American Civil Liberties Union, said in a statement criticizing Berkeley's decision to cancel Coulter's event. "On college campuses, that means that the best way to combat hateful speech is through counter-speech, vigorous and creative protest, and debate, not threats of violence or censorship."
Berkeley, the cradle of the free-speech movement in the 1960s, has seemingly reemerged as the center of a nationwide debate over the delicate balance between free speech and safety. But it's not just our friends in the Bay Area grappling with these questions. The contemporary debate over free speech has also risen out of protests in Washington, DC, Middlebury College, and, yes, Seattle.
We live in crazy times. Far-right agitators—from white-nationalist leader Richard Spencer to recent pariah Milo Yiannopoulos—have sparked renewed interest in what types of speech are protected. Some on the left find themselves wanting to ban, stifle, or prohibit certain types of speech, especially speech they feel has been weaponized for use against historically disempowered communities. Inevitably, this leads to fights over what "free speech" really means (and what other terms—such as "hate speech," "incitement," "fascism," and "anti-fascism"—really mean).
Before the next go-round in this important and ongoing debate, let's define some terms.
HATE SPEECH VERSUS FREE SPEECH
On March 2, Charles Murray, a social scientist infamous for his racist and sexist studies about genetic inferiority, was shouted offstage by students, chased around campus, and physically confronted as a result of his talk at Middlebury College in Vermont. In a letter protesting the scientist's invitation to speak, more than 450 Middlebury alumni wrote that Murray's presence at the college "motivates eugenics and the genocidal white supremacist ideologies which are enjoying a popular resurgence under the new presidential administration."
"This is not an issue of freedom of speech," the alumni wrote. "In this case, we find the principle does not apply, due to not only the nature, but also the quality, of Dr. Murray's scholarship." The New York Times editorial board later voiced its support for Middlebury president Laurie Patton's defense of Murray's right to speak. "Free speech is a sacred right, and it needs protecting, now more than ever," the board wrote.
This same type of debate has been raging in Seattle. In November 2016, students petitioned University of Washington president Ana Mari Cauce to block Milo Yiannopoulos—most famous for his racist, misogynistic, and transphobic views—from speaking at the Seattle campus at the invitation of the UW College Republicans. After a bitter fight between liberal students who wanted Yiannopoulos banned and campus administrators who said they had an obligation, as a state-funded university, to uphold his First Amendment rights, the former Breitbart editor ended up speaking. On Inauguration Day, he appeared inside Kane Hall as his supporters and protesters clashed outside. Later that evening, an anti-fascist demonstrator was shot by one of Yiannopoulos's fans. The following day, a UW instructor began receiving death and rape threats online after being videotaped leaving a demonstration the day of Yiannopoulos's appearance. (After video clips in which Yiannopoulos seemingly condoned pedophilia resurfaced in February, the self-proclaimed "dangerous faggot" has since become a pariah in right-wing circles.)
Were UW and Middlebury officials correct in saying that Yiannopoulos and Murray had a First Amendment right to their awful views?
Yes, say First Amendment scholars and attorneys Erwin Chemerinsky and Ronald K.L. Collins. Yiannopoulos's and Murray's beliefs may be abhorrent, they say, but their right to speak is firmly protected by the Constitution.
"It's a hard pill for progressives to swallow, but hate speech is protected," said Collins, a UW law professor.
Even when speech is racist, anti-Semitic, or homophobic, it is still protected by the First Amendment. The only exceptions are when speech includes "a true threat, harassment, or destruction of property," said Chemerinsky, dean of the University of California, Irvine School of Law. A true threat—"something that causes a person to reasonably fear for their physical safety"—is not protected by the First Amendment, he said.
In other words, speech that is seen as hateful, and therefore labeled by some as "hate speech," is not by itself illegal. And Collins points out that perceptions of "hate speech" can be very subjective. "In many respects, 'hate speech' refers to people whose lifestyles you don't agree with," he said. "The thing we signed on to [the Bill of Rights] says that we'll protect speech that we find offensive."
Hate speech evolves into a hate crime only when someone takes physical action or makes a "true threat" against another person or group. Bottom line: As long as a person's speech does not contain a "true threat," that speech is protected by the First Amendment.
But that doesn't bar people from opposing hateful speech, said Collins. "Every time we get up and defend hate speech, we have an obligation to condemn it," he said.
In the weeks leading up to Yiannopoulos's talk at UW, students and local residents implored university president Cauce to block him from coming to campus because they believed there was a risk of his appearance inciting violence. But to pass the incitement test, said Collins and Chemerinsky, speech must cause "imminent lawless action," which is notoriously difficult to prove.
This standard was established by the 1969 US Supreme Court decision Brandenburg v. Ohio, which reversed the conviction of Ku Klux Klan leader Clarence Brandenburg, who had suggested "revengeance" might need to be taken against those who oppress the white race. Because Brandenburg's statement did not cause "imminent lawless action," justices ruled that his hateful speech was still protected by the First Amendment.
The United States has a long history of allowing expressions of free speech that, while they may technically stop short of incitement, seem likely to generate an intense response—or even violence. In 1977, in National Socialist Party of America v. Village of Skokie, the Supreme Court ruled, controversially, that a faction of neo-Nazis had the right to assemble and march through Skokie, Illinois, a predominantly Jewish town.
Today, efforts to restrict hateful groups' rights to speech could be dangerous to progressive causes and for marginalized communities, said Chalia Stallings-Ala'ilima, attorney and president of the Loren Miller Bar Association.
"The problem is that you don't want to start chipping away at it, even for the best of reasons, because then where do you stop?" she said.
George Lovell, UW professor and political science department chair, echoed this sentiment. "[Free speech] hasn't just been a weapon for people on the right," he said. "It's been a powerful tool for marginalized people, too." The same right that allowed neo-Nazis to march in Skokie also allowed civil-rights activists, years earlier, to march in places like Selma, Alabama.
The First Amendment also protects people who are protesting against speech they find offensive. For example: Despite what Yiannopoulos's fans claim, activists demonstrating against the provocateur's talk at the UW didn't represent an infringement upon his free-speech rights. Claiming First Amendment protections is a weak shield against legal protest.
There are limits, however. Free speech can be restricted by rules that regulate when, how, and where one can speak. For example, Collins, the UW law professor, explained that a student may not like what a professor is teaching, but still "they cannot get up and yell, 'You're a fascist!' The time and place is inappropriate."
CRITIQUES OF FREE SPEECH
UW president Ana Mari Cauce explained in a statement that the university's decision to allow Yiannopoulos to speak on campus was a testament to the university's commitment to upholding free speech.
But in the digital age, the lines between constitutionally protected speech and threats are easily blurred, said Lovell.
In mid-January, Lovell's colleague, Jack Turner, was harassed online and over the phone by members of a white-nationalist site when he wrote a post about his students tearing down neo-Nazi recruitment posters on campus. Although UW officials received reports of the incidents, they claimed there was little the university could do.
"[Harassers] can get away with it because, practically, they're hard to catch and then rhetorically they claim free speech," he said. "The intention of it is to silence people by hiding behind absolutist free-speech claims... My fear is that this will work as a tool of intimidation—that people will see a risk in speaking out or that they will be the next person targeted."
This tactic has been weaponized by people in power, including members of the far right, said Alan-Michael Weatherford and Yasi Naraghi, both UW comparative literature doctoral students. They were harassed online after a video of them taken after an Inauguration Day teach-in demonstration was posted on YouTube and 4Chan. Weatherford received death and rape threats, and alleged he was even followed on campus. Naraghi said she no longer feels safe at UW.
The First Amendment is intended to ensure that everyone has an equal right to speak their mind. However, Naraghi argued, free-speech laws have ended up perpetuating systemic inequity. Conflicting groups such as progressive activists and neo-Nazis are asked to hear each other's sides, she says—even when one side promotes white-supremacist ideals such as creating a white-only nation. From her perspective, UW students should not, for example, have to argue that speech promoting genocide be banned from campus. Although the First Amendment is intended to protect all people, Naraghi said, throughout history, free speech has been a privilege long held by white, educated, and wealthy people—most often, cisgender men.
"One of the ridiculous things about free speech is that it's based in liberal ideas of freedom," said Weatherford. "It makes the assumption that everyone is equal, but free speech has no analysis of power. It's like we live in a vacuum... When those who have more power institutionally are threatening another group, that's not free speech."
However, neither Weatherford nor Naraghi were able to offer a clear method for determining, in a mass society, which particular citizens' speech should be limited because of their perceived power. Naraghi described such regulation, however vaguely imagined, as being a way that "we can escape veering toward authoritarianism." Of course, the centralized arbitration of who has the power to speak is a hallmark of authoritarianism. However, the students seem to be suggesting a more democratic arbiter. Whether that's achievable remains unclear.
WHAT ABOUT THE ANTI-FASCISTS? DO THEY BELIEVE IN FREE SPEECH?
In the fight against the Trump administration's restrictive and racist policies, anti-fascist movements—"antifa" for short—are growing in the protesting world as "coalition politics of the revolutionary left," said Mark Bray, historian and visiting scholar at Dartmouth College.
Looking at the brawl that broke out at the Trump rally in Berkeley on April 15, Bray said mainstream media failed its audience by declaring the event a "free speech" demonstration rather than unveiling what it actually was: a gathering partially composed of neo-Nazis and white-nationalist groups. "It's clear that the organizers recruited from far and wide, all over the country, to fight," he said.
Historically, said Bray, there is a tendency for "fascists to hide behind the language of free speech and [use it] to obscure and whitewash white-supremacist politics."
The Stranger reached out to local anti-fascist organizers with Emerald City Antifa for comment about the free-speech debate, but they only wrote back: "Fuck off fascist scum!" Instead, we spoke with representatives from the Portland, Oregon–based Rose City Antifa (RCA), who would speak only on the condition of anonymity.
"We believe that liberals mobilizing to defend fascists on free-speech grounds increases interest in their views by conferring legitimacy on them," RCA wrote in an e-mail. "This plays directly into their organizing goals, allowing them to drive a wedge between their opponents, using free speech as a smoke screen. By tolerating racism, homophobia, anti-Semitism, and xenophobia, so-called free speech advocates are complicit in the acts of terror that fascist organizing makes possible."
They continued: "Failing to stop fascists from speaking—that is, giving them the opportunity to organize to impose their agenda on the rest of us—makes you as bad as them... We support self-defense and self-determination above all. What's the purpose of free speech, if not to foster a world free from oppression? Fascists oppose this vision. Thus, we oppose fascism by any means necessary."
But are antifa groups against constitutionally protected free speech?
"The First Amendment and related free-speech laws protect citizens from state interference, not from criticism by the public," RCA continued. "We're not opposed to free speech; we're opposed to enacting an agenda of hate and terror. We target individuals and groups that are organizing along fascist lines."
Based on this explanation, it does sound like the group is in favor of curbing certain types of speech. Bray interprets their position this way: "They're taking seriously the potential threat that fascists and white supremacists organizing can pose. It's not necessarily that [their speech] would result in genocide, but that it could grow to pose a serious threat to people of color, Muslims, Jews, and so forth."
Limiting some types of speech isn't unprecedented. In response to the devastation and trauma Nazis wrought in Europe during World War II, German officials censor certain public displays and some publications put out by extremist organizations, including the Nazi Party. Google Germany even blocks white-nationalist and Nazi websites and doesn't provide search results for websites denying the Holocaust, Forbes reports. This type of censorship seems to align more with the antifa cause.
"What we saw with World War II is that assumptions of linear progress are unfounded—things aren't going to get better no matter what," said Bray. "These anti-fascist protesters are putting themselves on the line to make sure these things never happen again."