Constitutional Law

Random Neural Firings On Free Speech In America

Whither free speech?

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Pretty woman shouts into a megaphone, possibly protesting

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Euphemisms. What are they? They are words that are less offensive and more sugar-coated than the truth. They try to cushion the blow of bad news. They are all around us. A few examples:

What does it mean when someone “walks something back”? How equivalent is that to “liar, liar, pants on fire”? What’s the difference between walking something back and saying, “I made a mistake”? Easy. We were taught in evidence class that the latter is an admission, something a lawyer should never say (although I disagree with that; sometimes a “whoops” is appropriate). However, I’m not sure that anyone with any brains wouldn’t see the “walking back” as an admission, only not a forthright one.

Another example: Mr. Z is leaving the company to pursue personal interests or words to that effect. The HR director has said either by email or memo that “We wish him the very best in his future endeavors.” Code words for “he got sacked”? Of course.

Other examples include “reductions in force,” “streamlining,” “doing more with less,” and other variations on that theme. Although the thought is to soften the hard news, people aren’t stupid, and they can see between the lines of the euphemisms that it’s curtains for whoever is the subject of the euphemism.

And then there’s my personal favorite: “with all due respect.” A euphemism for telling the court that it is wrong, wrong, wrong, while implicitly saying that the court’s decision is moronic.

As the world returns to whatever is the “new normal” (a euphemism perhaps?), and with the newest variant of COVID-19 on the rise, there’s a new form of discrimination that the EEOC is warning about. Ironically, it took an epidemic to recognize that post-COVID caregivers have rights and should not be discriminated against. And who are the majority of those caregivers? How about working mothers? Not to diss working fathers who are caregivers, but most caregivers are women. So, it might be a good time to look at how the EEOC looks at returning to work caregivers.

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Whither free speech? I was at Berkeley in the late 1960s, the birthplace of the free speech movement (FSM). Joe Patrice’s post about the latest kerfuffle at Yale Law School (where else?) is just the latest iteration of how much free speech on college campuses has changed in the past 60 years. Berkeley was ground zero for the FSM. I wonder how Mario Savio, the FSM leader, and other FSM leaders would regard today’s happenings, particularly what they would think about cancel culture.

A little background: in the 1950s, McCarthyism was the order of the day and said essentially that there “was a Red under every bed.” The result: a limitation on student political activities at Cal and elsewhere. Under pressure from Sacramento (Berkeley was and is a state school), Berkeley administrators ordered that students be barred from political activities near campus. Obviously, that did not sit well with the students. In the early 1960s, Cal student Mario Savio and others said “phooey,” (or less polite language) to those restrictions, and those protests culminated  in what became the FSM.

One of the first things that Ronald Reagan (yes, that Ronald Reagan) did when he took office as California governor in early January 1967 was to fire Clark Kerr, the president of the University of California system (not just Berkeley). Kerr’s firing and continued protests roiled the school.

As the Vietnam War intensified that year, so did the protests. Student strikes, sit-ins, teach-ins, walk-outs, and other forms of protest became standard operating procedures. Occupation of university buildings, especially Sproul Hall — the administration building — were common. Just as much education was outside the classroom as inside. The turbulence was everywhere, the opposition to the war palpable.

The times are so quite different now; social media didn’t exist then. Getting the word out on protests was through newspapers including but not limited to the Daily Cal, flyers, and tables set up in Sproul Plaza on topics of all political persuasion. There were rallies, student strikes, and the lot. We were in the midst of a war 10,000 miles away, and there were lotteries for the draft. Every male, on campus and off, hoped for a high-enough number to keep him out of the Army and Vietnam. The war and the civil rights movements were the subjects that everyone had opinions about, and no one was bashful about expressing them to the delight of some and dismay of others.

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It was a quite different time than today. Cal students elevated, to a fine art, heckling speakers, even shouting them down. That’s not to say there weren’t arrests; there were. That’s not to say there weren’t bitter debates and broken friendships, sometimes even irreparable; there were.

I understand how frustrated speakers are when heckled or shouted down. But that’s the way things work in our country, at least so far. We have only to look at Putin’s Russia right now to see what happens when protest, when dissent, when objections to the way things are lead to arrest, imprisonment, or worse. While stifling protest may work there, it shouldn’t work here.

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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