Here’s a quick quiz. Three speakers each stand at a podium in a room filled with 100 people. Every one in the audience is seated; there’s no screaming and shouting; there are no weapons present. The three speakers say, in turn:“Kill the Jews!”
“Kill the Blacks!”
“Kill the gays!”
Wait! That’s too polite. The speakers say, in turn:
“Kill the [racial slur for Jews]!”
“Kill the [racial slur for Blacks]!”
“Kill the [sexual slur for gays]!”
Wait! That’s too polite. The speakers say, in turn:
“It’s time for genocide! Kill all the [same as above]!”
Here’s my question: Which one of those statements is protected by the First Amendment?
The answer, of course, is easy: All of those statements are protected by the First Amendment.
All of those statements are offensive and crazy, and no civilized person would believe the ideas they express. But they’re just speech. They’re not intended, and likely, to incite imminent violence, so the speakers get to talk. End of story.
Note that I’ve intentionally eliminated the problematic stuff from my hypothetical questions. There’s no armed crowd in the back of the room that might be incited to run off and kill people. No one is chasing a Jewish person around campus repeatedly screaming, “Kill all the Jews” into his ear. There’s no immediate incitement, there’s no harassment, there’s just a clown at the podium expressing offensive views. That’s allowed. This is America. God bless us.
So how did three college presidents get themselves into trouble about this?
They seemingly got into trouble by not condemning advocacy of genocide of the Jews harshly enough. This is funny because the Constitution actually permits people to advocate genocide of the Jews. The Nazis, for example, are allowed to march in Skokie. Why is it wrong for college presidents to allow people to say things that the Constitution permits?
Here’s why those college presidents really got into trouble: Their colleges started trying to enforce restrictions on speech other than those imposed by the Constitution. The colleges wanted to eliminate “microaggressions” on campus. Once you go down that path, you’re toast.
Microaggressions are just that: Micro. Trying to eliminate small offenses is very tricky and probably not even a good idea. First, if the offense is a small one, tell the victim just to live with it. Life is tough. You’ll be subject to thousands of minor indignities between now and the tomb. You’ll get no protection from any of them. You might as well learn that lesson in college.
Second, some scholars say the First Amendment is designed to force you to tolerate offensive speech. According to these scholars, society is stronger if speakers say what they want and listeners must react without violence. This teaches the listener self-restraint. Permitting microaggressions to go unpunished may be good for us.
Third, and perhaps most importantly, once you design a rule to punish microaggressions, you must try to enforce that rule in a nondiscriminatory way. That’s almost impossible. A huge variety of opinions float around on campus; what’s a “microaggression” to one person is “speaking the truth” to another. Once administrators start trying to sort through these things, the administrators can’t win.
If some hooded nutcase from the KKK starts ranting about killing every African American on campus, that offends every thinking human being. Nonetheless, don’t punish it.
Because tomorrow some person will start ranting about “intifada” or “from the river to the sea,” or “kill all the Jews,” or whatever, and you’ll be paralyzed. If you punished the first speech, perhaps you must punish the second. Or perhaps not. Don’t walk this path.
The easiest rule for college administrators is this: “If speech is permitted under the Constitution, we permit it on campus.” End of story.
You’d have vigorous debates on campus, but so long as no one got hurt, that’s what you want.
Perhaps administrators must create rules more restrictive than the one I’ve suggested. I really don’t know. I’ve never been a college administrator, and I’ve never really thought about the issue.
But I know that many things being said on the far left are simply wrong. “Silence is violence” is a nice slogan, but it’s not a correct statement of First Amendment law. And if people want to advocate views with which you disagree: sex is binary, affirmative action is bad, there is only one God, and it’s not yours — then disagree to your heart’s content.
But don’t stifle speech.
We need to hear all opinions — even the crazy ones.
Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].