Free Speech Does Not Require Civility (Updated)


James Hanley

James Hanley is a two-bit college professor who'd rather be canoeing.

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126 Responses

  1. Avatar Tod Kelly says:

    It’s interesting to note if your examples of incivility, you’ve chosen ones where the disenfranchised are speaking out to (and against) power.

    What, then, do we say to a group of fraternity boys that stand in front of a student union with signs saying, “fags not welcome,” or in front of student dorms that house African Americans with signs saying “n**ger go home?” What about acts of incivility that go further, like swastikas on Jewish Student Centers — is the incivility there just as welcome, so long as the normal fine for vandalism is levied? What about incivility with students whose sexual orientation is a good predictor for higher suicide rates due to incivility — do we let those same frat boys say anything at all at any time they wish to those students?

    I bring this up because I think White and everyone else who argues “for” or “against” civility are missing the elephant in the room, which is this: We all tend to define incivility in different ways, and further, we all tend to rely on what we erroneously assume to be “common” sense to dictate where we draw that line with acceptable v. unacceptable incivility.

    I am not arguing here either for “civility” or “incivility;” rather that I think the debate over the two is flawed at its point of origin.Report

    • Avatar Mad Rocket Scientist in reply to Tod Kelly says:

      So where do we draw the line? How do we say “this is rude but protected, but this is rude & illegal”? How do we stop our political class from moving that line until they feel ‘safe’?

      I put a link in a comment last week to a story about a woman who was writing graffiti that compared the NYPD to Nazis, complete with swastikas. She was arrested for a hate crime. Is that protected, or over the line?Report

      • I think for me, this is no different from discussions about “what the Constitution really means.” Which is to say that we have a mostly general overall consensus, and then pick through the individual stuff piece by piece — partially for the stuff, and partially to prod and poke and see how the general consensus stuff is working out for us. And that’s not only acceptable, it’s actually a good thing.

        Because James’s argument that free speech must allow incivility to be tolerated is 100% correct — at least up to a point. But the thing is, the exact same thing can be said about the argument that you must have civil discourse in order to be able to have a society with free speech.Report

      • Avatar Mad Rocket Scientist in reply to Mad Rocket Scientist says:

        As long as civility is enforced by social means, rather than legal ones.

        I have no problem with a whole room of people telling the heckler to shutup. I do have a problem with the cops arresting him for being a rude ass.Report

      • But is that really an issue here?

        Coming from a college campus, I think the more relevant question is this: Do you have a problem with a college, private or public, having enforceable rules about speech which is determined by those same rules to be harassment?

        Most Free Speech/PC debates I see that swirl around around college campuses attach themselves not to issues where police are arresting people, but rather to ones where there is a question about whether or not the school should allow one student to say or do certain things to another student.Report

      • Avatar Mad Rocket Scientist in reply to Mad Rocket Scientist says:

        Yes, I do, if it is a public university. Universities are too quick to label offending speech harassment. If it would fly in a court of law, it should not result in sanctions or expulsion of a student.

        I have a problem with private universities doing it as well, but they are private.Report

      • Avatar Alan Scott in reply to Mad Rocket Scientist says:

        @mad-rocket-scientist , the thing is, a letter from the university chancellor is undeniably a social, rather than legal, means of enforcing civility.Report

      • Avatar Mad Rocket Scientist in reply to Mad Rocket Scientist says:


        As I said before, the letter alone doesn’t bother me too much. I have no issue with a chancellor who wants to encourage civility; my concern is that too often, Universities use a heavy hand to try to enforce civility.

        Which is a concern others seem to share.Report

      • Avatar James Hanley in reply to Mad Rocket Scientist says:

        Do you have a problem with a college, private or public, having enforceable rules about speech which is determined by those same rules to be harassment?

        Public universities cannot make rules that define speech as harassment except in accordance with the Constitution, or if you prefer, in accordance with controlling Supreme Court interpretations of the Constitution.

        That seems, to me, not seriously arguable these days. States and their subunits and agencies are bound by the First Amendment since Gitlow v. New York, 1925. This is why campus speech codes have repeatedly run afoul of the law.

        So, no, indisputably as a matter of current constitutional law, no, public universities cannot just draw up rules about speech, define speech as harassment, and enforce those rules, except within the bounds determined by the federal courts. That universities have repeatedly tried to do so outside those bounds, and been slapped down, is both why your statement cannot be accepted without such extensive qualification and why the Chancellor’s letter is troubling.

        Private schools can be as censorious as they want.Report

    • Avatar James Hanley in reply to Tod Kelly says:

      Can we say ‘you may be uncivil, but this other person cannot’ without engaging in viewpoint discrimination? And if we choose to allow viewpoint discrimination, are you confident it’s the oppressed minority’s viewpoint that will be the one tolerated?

      The reason I use minority expression as my example is that I expect them to take the brunt of civility rules, while the media focuses on the rarer cases where a white person gets shut down.Report

      • Avatar Tod Kelly in reply to James Hanley says:

        But do you really believe that, though?

        I know you well enough to know that you’d be against students being punished by your college were they to burn an American flag to protest… well, anything really.

        If a group of students burned crosses with the express intention of frightening certain minority students so that they would either not vote, or leave at break and not return, would you really want school officials to allow that? Or for that matter, the government?

        And maybe you would, out of principle. But most people — even those who like me who are OK with how a court might rule in, say, a Nazi parade — eventually say “incivilities all fine and well, but there are lines.”Report

      • FWIW, bans on cross-burning are constitutional only insofar as the prosecutor is able to show a specific intent by the defendant to intimidate. In other words, it’s bannable solely because it is a particular manner of threatening physical violence, and the bans can only apply insofar as someone actually possesses that intent of threatening physical violence. Actual, intentional, threats of physical violence aren’t usually treated as speech at all. Whether or not it should be constitutionally protected even with that intent, it’s easy to see the analogy between cross-burning and, say, threatening to kill someone while pointing a pistol at them even if you never pull the trigger. At best, the argument might go, this is in effect an attempted assault rather than speech.

        But bans on speech or expressive conduct solely because the speech or conduct is likely to cause fear, without any intent requirement, are clearly unconstitutional. So it’s not the speech itself that is unprotected, but rather the intent to commit or threaten violence that is unprotected. That may seem like a subtle distinction, but it’s an important one.

        And it’s really easy to see how these kinds of “speech codes” will wind up being used in practice when they’re as vague as university policies tend to be. We have a good example from just a couple of weeks ago, in fact, when a professor who had left his old job after being offered a job at an Illinois public university had that job offer rescinded because of “uncivil” comments he made on Twitter about Israel’s war in Gaza. And he wasn’t exactly a professor who was going to be teaching Middle Eastern affairs, so you can’t even say that the speech that got his job offer rescinded was work-related.Report

      • Avatar James Hanley in reply to James Hanley says:

        Yes, I do believe that. I know that white people are actually more likely to smoke pot, but black people are more likely to be arrested and convicted for it. I know blacks are more likely than whites to get their doors kicked down and their dog shot in the middle of the night. I know they’re more likely to get shot by the police than whites. I know the Department of Agriculture discriminated against blacks in agricultural loans for decades.

        But I’m supposed to believe the authorities will be more tolerant of their incivility than whites’ incivility? That runs afoul of parsimony, and while parsimony isn’t proof, it’s a good reason for tending to believe one thing over another. It also suggests you’re going to need an actual argument, not just expressions of doubts.

        There’s a fine line, of course, between speech and intimidation. And we can’t pretend we always can recognize it. But intimidation can go two directions as well. And we have to be careful about making the distinction. I have a colleague who argued seriously that a campus Right to Life Protest that consisted simply of a set of gravemarker like crosses was intimidation, not speech, and so should not have been allowed. I think it’s no coincidence that he happens to be pro-choice, non-Christian and very liberal. I expect such determinations to be similarly based on ideology unless we are very careful.

        “I hate n*****s,” spoken ocasionally, and not repeatedly directed at anyone, is protected speech. “I’m going to get you, n*****,” is a threat, and threats are one of the categories of non-protected speech (but not because of their incivility, per se). “I hate n*****s,” said repeatedly to, or even in the presence of, the same person, may constitute harassment, but, again, not actually because of the incivility of the phrasing. I wonder if you are collapsing these categories.Report

      • Tod,

        I think that’s a tough nut to crack. When it comes to cross burnings, I see it as speech that is also a threat of violence and not merely “uncivil.” In other words, I see cross burnings as more akin to “I’m going to kill you”–a type of threat that even most free-speech absolutists would say ought not be protected. Now, I guess I could imagine an actual demonstration where a cross was burned and it was an expression of, say, a white supremacist’s beliefs, etc., might not be enough of a direct threat of violence that I’d want to ban it. But I have a hard time imagining that situation happening.

        Why not have a rule/code against threats of violence and then attack the cross-burning on those grounds?

        Cross burning, of course, is one of those “nuclear” examples. You might also be suggesting something like very strident and offensive speech in the context of, say, a classroom discussion, or other situation. I still think if someone wants to stake a claim against that speech, they had better be able to do it as a threat of violence (or some other violation against safety, etc.). A bunch of frat boys* outside a dorm saying “n-word go home” to my mind qualifies as a threat of violence. A bunch of frat boys in a “white pride” parade saying “n-words go home” does not and in my view ought to be protected.

        *For the record, I don’t know a lot of “frat boys.” I’m reluctant to bait them with all the stereotypes that have been assigned to them.Report

      • Mark and James responded while I was writing, but I generally agree with them. But I’ll wend a little of to what Tod is saying and ask about a question that bothers me and might also get to what he means: Ought an instructor [at a public university….etc., etc….] be allowed to tell a student to leave if, for example, he or she uses uncivil speech? Let’s say an instructor does, and he or she is challenged. Let’s also say that telling the student to leave does not mean the student is “expelled” from the class, but that he/she can come back later. The instructor might want to rely on a certain statement of university policy, and fortunately (for him or her) has one:

        Discriminatory harassment includes conduct (oral, written, graphic or physical) directed against any person or, group of persons because of their race, color, national origin, religion, sex, sexual orientation, age, disability, or veteran’s status and that has the purpose or reasonably foreseeable effect of creating an offensive, demeaning, intimidating, or hostile environment for that person or group of persons.

        That’s probably the preamble to a “speech code” (wikipedia isn’t entirely clear on what it is, but it’s supposedly taken from a site that describes the rationale behind “speech codes”). I suspect that what are called “speech codes” are meant to function to address situations like that. That may be wrong on some level, but it’s a bit of a different ballpark (I think?).

        By the way, I’m sure there are specific examples that I could Google. I’ve actually tried to Google, but didn’t look very far. But I haven’t found an example of a “speech code” with all that term implies (“these words ought not to be uttered,” “those words can be,” “the speech review board will hold a hearing of all people who allegedly violate this code”).

        I hope it’s clear that I’m mostly against speech codes and probably side with James’s and Mark’s view on the subject, but I’m not sure Tod’s point can be easily refuted.Report

      • Obviously, context matters in determining whether one has, for instance, uttered “fighting words” or engaged in actionable defamation.

        Very clever people might be able to come up with a context in which even as innocuous a phrase as “I generally approve of the President’s policies” might colorably fall into an actual exemption from free speech jurisprudence.

        Policymakers (e.g., chancellors of public universities) should be cautious about interpreting such exceptions, rather than eager to use them as reasons for creating rule regimes that depress even unpleasant sorts of communication.Report

      • Avatar Tod Kelly in reply to James Hanley says:

        @james-hanley @mark-thompson @greginak

        I think you’re all missing my point, while sort of reinforcing it.


        A group of white men might look to intimidate a black man in any one of an increasingly threatening manners, such as:

        A. Burn a cross

        B. Burn a cross and, when the black man sees them, point at him to let him know they are watching him

        C. Burn a cross and, when the black man sees them, use their fingers to draw a line across their throat

        D. Burn a cross and, when the black man passes, walk over and tell him that if they catch him, let’s say, walking with a white women, they will “make him pay”

        E. Burn a cross and, when the black man passes, walk over and tell him that if they catch him, let’s say, walking with a white women, they will kill him and his family

        All of these instances different degrees of a threat against someone; in none of these is anyone doing anything other than communicating ideas.

        Now, you can say that one of the these is a more serious, tangible, or immediate threat than the other, and is therefore illegal in the way that another is not. But that is, by it’s very definition, allowing the government to step in and say “that breaches the level of civility we’re going to allow” in a place that is somewhat arbitrary.

        As I said to begin with, we all really do have those lines we won’t let society careen into — we just conveniently reclassify the things that cross those lines using words other than “speech,” so that we can still tell ourselves that we are okay with protecting all speech.Report

      • @tod-kelly

        For the record, I’d say all except “A” ought to automatically be subject to the law/punishment as threats. Maybe even “A,” given more context, can be interpreted by law enforcement as a bona fide threat.Report

      • Avatar greginak in reply to James Hanley says:

        @tod-kelly Here is a story that crosses over these lines. Starts with just plain racial jerkatude then veers into a crime.

      • Avatar James Hanley in reply to James Hanley says:


        in none of these is anyone doing anything other than communicating ideas

        Is a threat really nothing more than an idea? I question that implicit assumption,Report

      • Avatar Stillwater in reply to James Hanley says:

        Tod Kelly,

        I’m having a bit of trouble following ya on these coupla subthreads, but it seems to me that this

        As I said to begin with, we all really do have those lines we won’t let society careen into — we just conveniently reclassify the things that cross those lines using words other than “speech,” so that we can still tell ourselves that we are okay with protecting all speech.

        is the jist of what you’re getting at. I’m gonna take a stab at interpreting that claim, so lemme know where I’m wrong. Given that there are myriad kinds of speech which we think ought to be against the law, the functional limits on what we think of as a fully general protection are actually circumscribed by a social (or perhaps a better word is “societal”!) context which most of us are unaware of. And it’s only in virtue of the unacknowledged contribution existing social norms play in all this that a person could say that speech is protected full stop while also recategorizing certain types of speech in terms of harm (or whatever).

        Something like that?Report

      • Avatar RTod in reply to James Hanley says:


        A verbal threat is just words. So is a written one. Just like a burning cross is just a symbol. If you look, there is nothing in the first amendment that makes allowances for words that are part of a threat.

        Threats are magical, they are words and words only. We decide, collectively, that free speech does not extend to them.

        I don’t know how you can not agree with that.Report

      • Avatar RTod in reply to James Hanley says:

        @stillwater Exactly.

        And then we, in courts or legislation, make these things “not protected speech” and thus they are no longer protected.Report

      • Avatar James Hanley in reply to James Hanley says:

        we just conveniently reclassify the things that cross those lines using words other than “speech,” so that we can still tell ourselves that we are okay with protecting all speech.

        Thinking about that, I think it’s wrong in a significant way. As a matter of law, we’ve gone beyond speech to protecting “speech plus action,” and “expressive action.” Rather than reclassify speech as something else, legally we’ve tended to reclassify something else–even including naked dancing!–as speech.

        What speech acts we’ve drawn outside the boundaries of protected speech are actually quite narrow, and it takes a pretty strong showing of harm to get to that point. E.g., libel, which is so narrowly drawn that all you have to do is say “in my opinion, Hanley enjoys torturing puppies,” or make it a really vicious joke instead of a factual claim intended to be seen as true (“well what do you expect from someone who’s the kind of guy who probably gets his kicks torturing puppies?”). Or with racist speech. You can walk wear a shirt that has no words, but a picture of a lynching and a happy face and we’ll call it speech, even if you walk into the same black-owned grocery store every day wearing that shirt. You’ll probably need to exhibit a believable threat before it passes out of protected speech, and as I note above, I don’t think the assumption that a threat is nothing more than expression of an idea is tenable.

        So this “convenience” you speak of, I don’t recognize it. Maybe if you gave some specific examples instead of being so general?Report

      • @james-hanley Yeah, this.

        On the whole thing of threats just being words, I’ll just add that I dont think that is accurate. There’s a difference between mere threats and actual threats, IIRC. Actual threats -unprotected threats- usually require more than just words, IIRC, though it’s been awhile since I looked at this.

        The whole fighting words doctrine is incredibly limited to the point of being almost meaningless.Report

      • It gets slippery down in the weeds, doesn’t it?

        Is anyone here really arguing that bona fidethreats of violence (assume that, Solomon-like, you magically know what these are) are really protected by the First Amendment? If so, then it doesn’t matter what a real threat is versus, say, a pretend threat made within a work of art. Because it’s an act of communication, it’s privileged, full stop.

        Well, that’s clearly not what anyone wants, and it’s not a reasonable understanding of what “freedom of speech” means due to its over breadth, so since we’re going to admit that in theory some acts of communication are threats, then we are obliged to use our purportedly Solomonic wisdom to define bona fide threats.

        (Mutatis mundatis for any other activity which obviously ought to be contrary to law which potentially incorporates communication, e.g., copyright infringement, incitement to violence, espionage, defamation, forgery, workplace sexual harassment.)

        But it’s a fool’s errand to do so absent context and that’s what y’all seem to be clashing over here. We can accumulate examples with experience and use common law analysis techniques to tease out common elements of them. But in the end we will likely find that indeed some limits of the legal right are arbitrary. And that may be okay, because there have to be limits of some kind, and when principled limits are unavailable arbitrary ones will have to do.

        I see the risk in this approach — we cannot know with precision in advance what any given communication is privileged, and so there is a degree of uncertainty in the law, uncertainty that creates room to censor speech that ought be allowed because the political process punishes that which is unpleasant! not that which is unprincipled. Which is why the process of weeding out exceptions to the privilege ought be done with deliberation, over time, incorporating reasoned opinions of decision-makers buffeted from political pressure. In our system, we call such people “judges” and they, too, are falliable and subjective. Which in turn is one reason why at this level, we make them operate in groups, requiring deliberation amongst them.

        Burt the Kritocrat does not wish to diminish the role of the political branches, but if we acknowledge (as we must) that no legal right is absolute and therefore someone has to balance rights and powers against one another, then why not trust a judge to do that as opposed to a legislator or a police officer?Report

      • @burt-likko

        then why not trust a judge to do that as opposed to a legislator or a police officer

        My main answer to that is sometimes we don’t always have that choice. Yes, we should prefer judges, in their deliberative capacity and guided by the constitution, to elucidate the boundaries of what counts as the rare exceptions to freedom of speech. But in practice, the legislators, police officers, and (I’ll add) any other government official with discretionary power–they’re all going to intrude on the process and make those determinations. Not all violations they engage in will make it to court, or enough people won’t be able to beat the rap before it’s declared unconstitutional in another case, or people might beat the rap but still have to suffer the ride, and that too is an intrusion.

        So when it comes to trust, yes, I’d probably (usually) trust judges over the other actors. But we still have to deal with the non-judges with power. So we have to worry what they’ll do and seek our own (peaceful!) checks against their incursions against freedom of speech.

        I don’t think you necessarily disagree because I don’t see what I’m writing as disagreeing with you. I just think it’s possible rely too much on judges ultimately, and in the long run, getting it right but in the meantime suffering a lot of damage be done.Report

      • Avatar James Hanley in reply to James Hanley says:

        It is slippery down in the weeds, but beyond that I can’t fully agree with you. Yes, there may be a degree of arbitrariness in deciding the line is drawn here and not there, but it is not arbitrary to the extent that here abd there both occupy a very restricted range of space. It’s not arbitrary to the extent that we don’t allow subjective perceptions of offensiveness to be used as justification for banning speech.

        It’s actually quite the rare moments of speech when you can’t know in advance whether it’s constitutionally protected. Edge cases always exist, whatever the area of law, but in comparison to, say, equal protection or search-and-seizure or even perhaps establishment, speech is, I would argue, a much clearer, more easily comprehensible, area of law.Report

      • I mostly agree with your last paragraph, @james-hanley , re: speech law being relatively predictable. I think you fail to properly credit the legacy of First Amendment jurisprudence for creating this better-than-many-plausible-alternatives state of affairs. It certainly seems a mistake to attribute our relatively strong tradition and law of free speech to the legislative or executive branches, or to the people as a cultural whole, as these have almost always accepted free speech with at best grudging reluctance.Report

      • Avatar James Hanley in reply to James Hanley says:


        Apparently I was very unclear at some point. I credit this almost wholly to the judicial branch, hence my repeated emphasis on Constitutional law as it currently is, and see the political branches as representing a perpetual threat to free speech.Report

    • Avatar LeeEsq in reply to Tod Kelly says:

      My belief that if free speech means anything it has to be for the powerful and abusive as well as the weak and uncivil. Free speech must protect all speech and that includes the bigoted and the evil. The real line is whether vandalism or violence is involved or not. If violence or vandalism is somehow involved in the speech than you should prosecute for that but if there is no violence or vandalism than it should be allowed. Frat boys holding up a sign that says “fags not welcome” deserves just as much protection as the local LGBT club on campus holding a rally in front of said frat boy’s house. If the frat boys graffiti homophobic slogans on the walls of LGBT club room or if LGBT students trash the frat boy’s fraternity house than both acts are vandalism and not protected.Report

  2. Avatar LeeEsq says:

    Adding to Tod’s point, what do you do in situations where people’s right to uncivil free speech interferes with the free speech of other people to make their day or listen to speakers they want to listen to. What if I go to listen to Speaker X because I happen to be a fan and in agreement but my ability to listen to Speaker X because of the heckler’s veto.Report

    • Avatar James Hanley in reply to LeeEsq says:

      What is there about a true hecklers’ veto that isn’t handled by legitimate tone, place, and manner rules?Report

      • Tone, place, and manner?

        Or did you mean time, place, and manner?

        I’ve much lower apprehensions about the second formulation than the first.Report

      • Avatar James Hanley in reply to James Hanley says:

        Heh, a curiously inapropos autocorrect.Report

      • Avatar Mike Schilling in reply to James Hanley says:

        I was made uncomfortable by its time.Report

      • Avatar LeeEsq in reply to James Hanley says:

        Ignoring the typo, the hecklers don’t seem to think so. If they identify a particular speaker or event as vile, they seem to believe that it is within their right to disrupt it. They are sometimes successful and therefore rob others of their right to speak and listen.Report

      • Avatar James Hanley in reply to James Hanley says:

        Sure, Lee, but that doesn’t really answer my question, does it?

        You can stand in the back of the auditorium holding signs that say “Netanyahu = Hitler,” where the Jewish speaker can’t help but see them, but you can’t hold the signs down front to block others’ view. You can chant loudly that “Israel commits genocide” close enough to the venue so your presence is unmistakeable, but you can’t yell so loudly so closely that others can’t hear the speaker.

        Those who think they have the right to prevent others from being heard are wrong. And not letting them do so does not violate their speech rights, so long as nothing more than time, place, and manner restrictions are used.Report

      • Avatar Patrick in reply to James Hanley says:

        Those who think they have the right to prevent others from being heard are wrong.

        I thought the guys that rode their Harleys up and gunned them to drown out the Westboro folks so that the funeral attendees wouldn’t have to listen to them chant while they were burying their loved ones were okay.

        I believe that you have a right not to have your speech curtailed, and you have a right to assembly, but the commons is not there solely for your speech and your assembly.

        There’s a difference between access and dominance. If you’re prevented access, that’s generally a good thing. if you’re using access to assert dominance, I’m okay with people taking steps not to hear your message.

        Because that’s what you’re trying to do.Report

      • Avatar James Hanley in reply to James Hanley says:

        What am I trying to do? I don’t follow that part?

        It seems to me I’m trying to prevent dominance, while not preventing access.Report

      • Avatar Patrick in reply to James Hanley says:

        Sorry, indeterminate pronoun problem, that wasn’t addressed at you, James Hanley.

        I mean, I found what the Westboro folks were doing was attempting to dominate an area of the commons. They searched around until they could find a place where they could file for their public access permit in such a way that they could demonstrate during a funeral.

        They didn’t do this because they needed access to the commons in order to spread their message. They had that already.

        They did it to be assholes, because the controversy around their actions would garner them even more spread for their message. That’s pretty abusive, to fuck somebody’s funeral up for the sole purpose of advancing your agenda, iff’n you ask me.

        So I don’t feel terrible that someone took steps to prevent people on site from hearing their message. Their message was still heard, and it could still be heard in lots of different ways.

        I’m just pointing out an objection to your one particular sentence “Those who think they have the right to prevent others from being heard are wrong.”

        I have a right to prevent others from being heard, in specific instances. I don’t have a right to prevent others from being heard, in all circumstances. People have a right to access to the commons to spread their message. People don’t have a right to dominate the commons to spread their message to the exclusion of other purposes of the commons.

        There’s not a lot of absolutism in this space. This is one area where I do find a lot of Ken’s stuff outside my delta zone, he’s a lot more of a free speech absolutist than I am.

        There are practically good reasons for civility. Civility can also be abused. I had this as a running conversation on Elizabeth Stoker’s facebook page where she was coming down pretty hard on the “civility can be abused” side.

        Sure, it can be abused. Sure, it can be used to shut down debate. Sure… when it is abused, it is pretty often a privileged class that is abusing it. All that stuff is risible and worthy of being called out for what it is.

        But civility also has serious benefits.Report

      • Avatar James Hanley in reply to James Hanley says:

        But even when the bikers showed up, everyone was aware that Westboro was there, and what their message was. I would say the bikers were more of a counter-demonstration. Had they actually tried to keep Westboro from being there, from holding signs, and so on, they would have crossed the line.Report

  3. Avatar Mad Rocket Scientist says:

    Specifically, we can only exercise our right to free speech insofar as we feel safe and respected in doing so, and this in turn requires that people treat each other with civility.

    Safe, in this context, is another one of those over-broad terms. ‘Safe’ is very much a subjective quality when used in reference to speech or expression. It’s more objective when talking about physical safety & integrity, but emotionally, intellectually, one persons ‘safe’ is another persons ‘terrifying’, and a thirds ‘stifling’. Trying to ensure an emotionally ‘safe’ place for discussions is a race to the bottom where no one is allowed any degree of expression.Report

    • Avatar greginak in reply to Mad Rocket Scientist says:

      @mad-rocket-scientist I agree but only up to a point. Safe is mushy but still important. If it means a view isn’t allowed to be expressed then that is a problem. However safe can also mean free from threats, not shouted down, or not repeatedly interrupted.Report

      • Avatar Mad Rocket Scientist in reply to greginak says:

        Agreed, that is a more reasonable understanding of ‘safe’.

        Too often, I see it used more in the context of “that speech makes me feel uncomfortable”.

        For instance, the professor who attacked the teenage protesters on the UC campus. Their message may not have made her feel subjectively ‘safe’, but her decision to respond with violence objectively threatened their safety.Report

      • Avatar greginak in reply to greginak says:

        I agree too many people, especially on my general side of the aisle, tend towards the ” i don’t like what you said” = hate speech thing. Uncomfortable is a part of debate and need to be accepted in general. That does lead to some difficult situations then with no easy answer.Report

    • Avatar Alan Scott in reply to Mad Rocket Scientist says:

      @mad-rocket-scientist , I don’t buy that “safe” is a race to the bottom. It doesn’t gel with my experience as a student or as an educator.Report

    • Avatar Stillwater in reply to Mad Rocket Scientist says:

      Trying to ensure an emotionally ‘safe’ place for discussions is a race to the bottom where no one is allowed any degree of expression.

      I sorta agree with this: circumscribing speech by what constitutes the emotional safety of those who might hear it certainly constitutes a limit on allowable expression. Sometimes that’s justified, I suppose. But I tend to think that the logical outcome of those types of safety-based restrictions isn’t the prevention of speech so much as the entrenchment and exacerbation of the same identity-based antagonisms which motivated the emotional safety restrictions to begin with. We see this very dynamic all the time right here on this blog, when someone labels a type of expression mansplainin, which inevitably engenders a hostile response from the person accused.

      From a pragmatic pov, I guess the issue is whether the legitimate goals of folks who are concerned with safety are furthered by drawing awareness to certain types of what they view as problematic speech, or if those goals are hindered. That calculus will necessarily include the extent certain folks use that justification as a form of aggression rather than explanation. (And so on with other permutations, of course.) Personally, I equate civility with a murkily defined form of non-reactivity, so insofar as some folks get emotionally bristly in reaction to another person’s judgment of their speech, I tend to think they (we, I include myself in the bristly group) not only constitute part of the problem discourse is supposed to resolve, but we exacerbate that problem.

      On the other hand, equating civility with some type of externally, socially determined, set of acceptable behaviors in discourse strikes me as quite likely leading to the retrenchment of privilege and power exerted by members of a dominant culture, while attempts to challenge expressions of that view (especially by members of that group) will almost inevitable lead to antagonistic emotional reactivity.

      That’s how it seems to me, anyway.Report

  4. Avatar greginak says:

    I think Dirks message was poorly phrased and vague. Mostly wrong but to mushy to really nail down. In actual classes civility should be elevated to achieve a positive conversation where people can heartily disagree with each other. That requires a moderator to make sure all students can have an opportunity to speak and create an environment where all members feel comfortable enough to speak. F U FBall isn’t appropriate in a class although i can picture a time when it might be called for.

    Outside of class though civility is nice and important to having a meaningful exchange of views, but completely optional. That is the place where it isn’t a time for moderators to be doing there thing.Report

    • Avatar Alan Scott in reply to greginak says:

      Outside of class where, though? Do the reasons that civility makes the classroom a more productive place magically disappear when it comes to campus clubs, cafeterias and dorms?Report

      • Avatar greginak in reply to Alan Scott says:

        Yes class is different. For one thing attending class is supposed to be mandatory, although we all know in principle it can be very optional. However class attendance is something you have to do while everything else has more options. A class is meant to serve a particular purpose of delivering some units of education. Part of that can involve class discussions and participation. A screamfest isn’t a discussion. In the quad after class, or certainly on the Internet, people can call each other names and have a jolly old screamfest. But a class setting needs to have a basic level of civility so all can participate.

        Clubs? There are optional so i think there is a lesser bar there for insisting on some sort of civility. Dorms? I can see a strong desire on the part of colleges to have a student led system of settling differences with over site from the school. Having a bunch of youngsters living away from home will create a lot of friction and not just the fun kinds of friction. But if kids are to learn about being adults that needs to be at least partly about learning to live among others and get along, not just how to make a bong out of toilet paper roller.Report

      • Avatar Alan Scott in reply to Alan Scott says:

        @greginak Cool, but “learning to live among others and get along” can mean a lot of things. Sometimes it means listening to an obnoxious person even when you really wish they’d shut the fish up. But sometimes, it also means being that obnoxious person, and being told to shut the fish up by someone like an RA or a club adviser.

        I’m approaching this question the way I do because of my long involvement with a campus gaming club, first as a student an later as an alumnus. When I first started going to the club, there was one female participant, out of maybe 15-20 regular participants. Today, there are about 8 or 9, of probably 40-50 regulars.

        In order to achieve this, we took a number of steps–some of which could reasonably be seen as trampling the free speech rights of students–and these steps were taken by a club affiliated with a public university with privileged access to state-owned spaces.

        A club adviser chastised an officer about a long-running in-joke regarding blowjobs, and told him to stop making such references. Students playing Cards Against Humanity were told that their game was inappropriate for inclusion in our common room. One club member was not allowed to participate as a volunteer after he made sexually harassing remarks to other participants. The list goes on and on.

        Our active embrace of civility and empathy, of creating a safe space, has made our club better in so many ways. It has allowed us to attract more participants, both male and female. It has frankly helped some of our participants behave in a more appropriate fashion around members of the opposite sex. It has made me less ashamed to say “I enjoy role-playing games”. And frankly, for all the progress we’ve made, we still have more to go, and that will continue to offend some people’s notions of free speech.Report

      • Avatar James Hanley in reply to Alan Scott says:

        I don’t know the precise law on this, but I’d think clubs can legitimately control speech to an extent their sponsoring public university can’t. The clubs themselves are not agents of the government. (The faculty adviser, if there is one, may be, so there might be a fine line there, but the law is made up of such fine lines.)Report

      • @james-hanley Yes, clubs are considered to be private organizations that are generally allowed to set their own rules regarding how they will be governed. There is some question as to how much a university can dictate rules to a group (e.g., the battle over whether universities can prohibit clubs from mandating that their officers be of a particular religion or ethnicity even where the club is explicitly religious or ethnically based), but there’s absolutely no debate that a club can set it’s own internal rules of discussion without running afoul of free speech since they’re a private group. I’m pretty sure this is true even to the extent they’re overseen by a faculty advisor, especially assuming the advisor isn’t being paid by the university to act in that capacity.Report

    • @greginak

      I do wonder if many of the so-called speech “codes” are actually classroom management guidelines. Maybe they’re overbroad, and maybe there are ways to ensure instructors have the prerogative to enforce a modicum of mutual respect in the classroom without adopting these “codes.”

      I will say that in my brief experience as a TA and even briefer experience as an adjunct, incivility was never (to my recollection) much of a problem. In one rare exception, classroom disruption was, but that wasn’t a speech issue. The biggest issue was what seemed to me like boredom or apathy. (I say “seemed…like” because it’s hard to tell. As an undergrad, I had at least one or two professors give us lectures about how apathetic we obviously were because we weren’t participating. I wasn’t apathetic at all. My lack of participating had other reasons, and maybe I should have participated more, but it wasn’t due to apathy.)Report

  5. Avatar Burt Likko says:

    I thought this was obvious:

    1. Free speech is a legal right.
    2. Civil speech only rarely needs legal protection.
    3. Civility in speech is a norm, not a law.
    4. The legal right of free speech applies to the government, not to private actors. Freedom of speech does not mean freedom from criticism.
    5. Without legal protection for free speech, civil speech becomes impractical and diluted to the point of worthlessness.
    6. The legal right of free speech of necessity protects uncivil speech.
    7. The proper response to uncivil speech is criticism — whether civil or uncivil is kind of a judgment call. (“Fish you, fishball” may well be a fine response to certain kinds of uncivil speech in certain contexts, and I am strongly considering adding it to my lexicon of ready-response quips for the appropriate circumstance.)

    Ergo, Chancellor Dirks has pretty much stepped on his d!ck out where everyone can see it.Report

  6. Avatar Mike Schilling says:

    Quoting James:

    the boundaries between protected and unprotected speech, between free speech and political advocacy.

    Quoting Dirks:

    for the boundaries between protected and unprotected speech, between free speech and political advocacy, between the campus and the classroom, between debate and demagoguery, between freedom and responsibility,

    Note that the period in the first quote is misleading. Dirks isn’t making an analogy between two opposites, he’s listing pairs of concepts that are in some sort of tension. He’s certainly not saying, for instance, debate:demagoguery::freedom:responsibility.

    Again quoting Dirks:

    For free speech to have meaning it must not just be tolerated, it must also be heard, listened to, engaged and debated.

    And Ken White’s analysis:


    First, observe the hidden premise Chancellor Dirks is presenting — that free speech must have “meaning.”


    Dirks has changed the subject from free speech (about which he’s only said good things, you might note) to speech that is both free and meaningful. If Dirks said that free speech, to be persuasive, must be in a language shared by the speaker and the audience, he would not be denying anyone their right to speak in Urdu. It’s not amiss, in my opinion, for the chancellor of a university to encourage people to engage rather than either shunning anyone who disagrees or telling them to go fuck themselves. Dirks isn’t placing civility above free speech. He’s encouraging people to combine the two. IReport

    • See Dirks’ follow up in which he seems to acknowledge being in the wrong here, and which Jaybird links below. But the way in which his original letter is phrased is really troubling. When you – as an authority of a government agency – write that there is a “vague boundary” between, e.g., “free speech and political advocacy,” you’ve essentially just said that free speech doesn’t exist, or is subservient. To focus for the moment just on that specific example, “political advocacy” isn’t in any way distinct from “free speech” – it’s the most important and valuable subset of free speech; to say that there’s any kind of boundary between the two, much less a vague boundary, is to fundamentally misunderstand the very concept of free speech.

      Similarly, he discusses the “boundaries between protected and unprotected speech.” Here, he is acting as if “unprotected speech” is a meaningful category, and in the context of the letter, seems to be arguing that “unprotected speech” is synonymous with “uncivil speech,” even if the exact boundaries between “protected” and “unprotected” are vague (which, for what it’s worth, makes what he wrote even worse – IMHO, an authority figure saying that what is “protected speech” is vague is akin to saying that the authority figure has the right to determine what is and is not protected speech).Report

      • Avatar Mike Schilling in reply to Mark Thompson says:

        in the context of the letter

        “Context” is the mother of prevarication. Ken White says so, and Ken White is an honorable man.

        More seriously, I agree that “between free speech and political advocacy” is troubling, because obviously political advocacy is the kind of speech that most needs legal protection. But “unprotected speech” is a real category: libel, threats, some forms of harassment, etc. And he used the word “unprotected” once, in a laundry list of amorphous concepts, where discouraging incivility is the main point of the email. I don’t see any reason to equate them.Report

      • Avatar James Hanley in reply to Mark Thompson says:


        Notice he never spoke about libel or threats, only incivility.Report

    • Avatar James Hanley in reply to Mike Schilling says:

      Nonsense, Mike. He’s proposing a boundary between free speech and political advocacy, even as you describe it. There is no such boundary, plain and simple, and the effect if saying so is to suggest one is protected and the other not–free speech is protected, so what’s on the other side of the boundary is not, or may not be.

      I cut the quote there because I agree with the later distinctions.

      Dirks is also wrong about meaning. Free speech has meaning because you can say whatever the holy hell you want without getting thrown in prison, not because you actually get someone to pay attention to you.Report

  7. Avatar Jaybird says:

    Dirks has a followup:

    It’s interesting, I tell you what. Here’s the money sentence: In invoking my hope that commitments to civility and to freedom of speech can complement each other, I did not mean to suggest any constraint on freedom of speech, nor did I mean to compromise in any way our commitment to academic freedom, as defined both by this campus and the American Association of University Professors.Report

    • Avatar Mike Schilling in reply to Jaybird says:


      Or,more accurately, follow-up-u-c-berkeley-chancellor-nicholas-dirks-is-so-explicit-that-Ken-White-cant-misunderstand-him-this-timeReport

      • Avatar James Hanley in reply to Mike Schilling says:

        You seem to have ignored how many others seem to have “misunderstood” him.Report

      • Avatar greginak in reply to Mike Schilling says:

        But he’s just a soul whose intentions are good
        Oh lord, please don’t let him be misunderstoodReport

      • Avatar Mike Schilling in reply to Mike Schilling says:

        And it never happens that many people are wrong on the internet.Report

      • Avatar James Hanley in reply to Mike Schilling says:

        Yes, indeed Dirks does have his defenders.

        Dirks may not have intended to set free speech and civility in contrast to each other, but his words did in fact do so. As a defense of free speech, it was the worst defense in recent memory. It had libertarians like White and myself objecting, it had conservatives at FIRE (I think they lean conservative) complaining, it had the California Scholars for Academic Freedom (a group founded to support Arabic and Muslim scholars who were being attacked) writing a rebuttal, and it drew a sharp response from the probably-liberal Berkeley Free Speech Movement itself.

        In other words, those who have a professional interest in free speech and have spent a great deal of time studying the issue are overwhelmingly appalled by the letter. “[M]any people are wrong on the internet” is not a meaningful response when you’re talking about people with substantially more expertise on the subject than you have.

        So far, as I said, you’ve only presented a tortured interpretation that requires imagining words Dirks never said about types of unprotected speech, so you can sever “unprotected” from “uncivil,” when the thrust of the whole message was a contrasting of free speech and incivlity.

        Dirks’ demonstrated his unawareness of Constitutional law when he says the boundaries between protected and unprotected speech are unsettled. They are, in fact, among the clearer boundaries in constitutional law, and very little speech is unprotected, what is unprotected is tightly circumscribed, and “incivility” has no legal relationship to the determination of what is not protected. If he had meant to say, “avoid libel and threats,” he could have, but in conjunction with “unprotected” speech, he only references incivility and political advocacy.

        Dirks explicitly stages “the commitment to free speech” as a threat to the “community’s foundation,” an implicit–even if unintended–critique of the commitment to free speech, as itself an existential danger.

        You are “troubled” that he distinguishes between speech and advocacy. I am, by contrast, astonished at the gross civic ignorance demonstrated by such a sentence. I’m stumped to figure out how we can imagine that the person who would write such a thing actually does have some accurate understanding of free speech.

        No, Mike, a person who understands free speech so poorly as to distinguish it from political advocacy, and to think the boundaries between protected and unprotected speech are unclear and have something to do with civility, such a person cannot be said to have an understanding of free speech or to be strongly defending it. At best such a person is being a well-intentioned but muddle-minded fool.

        Indeed someone is wrong on the internet. As usual, it’s not the experts, but the dilettante.Report

      • Avatar Patrick in reply to Mike Schilling says:

        Dirks may not have intended to set free speech and civility in contrast to each other, but his words did in fact do so.

        If you don’t regard two things as contrastable, you may pen a piece that implies that they are to folks who assume that you regard those two things as contrastable.

        It’s all in the assumptions baked into the piece. I like Ken quite a bit, but he projects a lot of illiberal feelings on everyone.

        Here at the site, we sorta try to abide by the mantra: read your interlocutor charitably. I don’t see an attempt to do that in this case, generally.Report

      • Avatar James Hanley in reply to Mike Schilling says:


        Reading charitably does not mean assuming meanings that aren’t there. I don’t read Dirks’ missive as the intentional effort of a censorious twit to signal his intent to expel anyone who doesn’t speak with utmost politeness. But I’ve re-read his email at least a dozen times now, and I can come to no other conclusion that–inadvertently or not, whether because it’s his real beliefs or because it’s just a really bad piece of writing–it sets incivility in contrast to, or at the very least in tension with, free speech.

        And can there be any serious argument that he did not explicitly contrast protected speech and political advocacy?Report

      • Avatar Mike Schilling in reply to Mike Schilling says:

        So far, as I said, you’ve only presented a tortured interpretation that requires imagining words Dirks never said about types of unprotected speech, so you can sever “unprotected” from “uncivil,” when the thrust of the whole message was a contrasting of free speech and incivlity.

        What I’ve done is read the words that were there. I didn’t need to assume that “protected” was identical to “civil”, something that’s never stated. Nor did I need to truncate a list of five comparisons to two in order to claim that they’re really all the same comparison. Nor did I imagine words: I pointed out that there is such a thing as speech that isn’t legally protected, because, you know, it’s a fact. It’s not a great e-mail, and it’s good that Dirk later clarified what he meant, but he did not, anywhere in the original, say that uncivil speech is not legally protected.

        You know what this brouhaha really reminds me of? Conservative talk radio interpreting any criticism as a threat to reintroduce the Fairness Doctrine.Report

      • Avatar James Hanley in reply to Mike Schilling says:

        Simply because Dirks used the words “unprotected speech” doesn’t mean he understands free speech law well enough to be referring to actual types of unprotected speech. And there’s no hint in the whole message of references to libel, slander, or threats, so to say he’s talking about such forms of unprotected speech you do in fact have to smuggle in those words as being implicitly present. You can say you’re not, but if you aren’t bringing them in then you’re left with Dirks not actually referring to any types of speech that are unprotected.

        You know what this brouhaha really reminds me of? Conservative talk radio interpreting any criticism as a threat to reintroduce the Fairness Doctrine.

        Then you may be unfamiliar with what’s happened across the country on college campuses over the past several decades.

        Perhaps you’re not aware of Modesto Community College preventing a student from handing out free copies of the Constitution.

        You may not be aware of the prevalence of speech codes, like Boise State’s prohibiting

        the use of university IT resources for “displaying, transmitting, retrieving, or storing inappropriate or offensive material,” unless “identified and pre-approved in writing by the [Vice President for] Academic Affairs and Provost as part of legitimate research, teaching, or academic pursuits.”

        You may not be aware that “offensive” and “inappropriate” are unconstitutionally overbroad terms, and that such a rule, if actually applied as written, would prohibit faculty and students from using university resources for researching and discussing any issue controversial to cause someone offense.

        You may not be aware that some public universities explicitly use unconstitutional content based restrictions in approving student flyers.

        Maybe you somehow missed the UC Davis pepper spray incident three years ago.

        Perhaps you’re unaware or unconcerned about these on-going attempts to restrict speech in the name of preventing offense, or are unable to see how Chancellor Dirks’ email fits into that. No worries, you say, he didn’t really mean that. But to anyone who’s paying attention to these issues, his muddled wording is perfectly reflective of what college administrators are actually doing across this country.

        You, in your job, don’t need to be aware. But your little sneer at those who are paying attention says considerably more about you than it does about them.Report

      • Avatar Mike Schilling in reply to Mike Schilling says:

        Simply because Dirks used the words “unprotected speech” doesn’t mean he understands free speech law well enough to be referring to actual types of unprotected speech.

        Yeah, let’s assume he’s ignorant. It’s the best way to handle people we disagree with.

        You, in your job, don’t need to be aware. But your little sneer at those who are paying attention says considerably more about you than it does about them.

        Just as your frequent insults say more about you than about the people they’re directed at.Report

      • Avatar James Hanley in reply to Mike Schilling says:

        Yeah, let’s assume he’s ignorant.


        “the boundaries….between free speech and political advocacy…have never been fully settled.”

        “Specifically, we can only exercise our right to free speech insofar as we feel safe and respected in doing so,”

        Fundamentally wrong and fundamentally wrong. There is no need to assume he is ignorant on this matter. He demonstrated his ignorance.Report

  8. Avatar Saul Degraw says:


    I am going to agree with “safe” being an overly subjective term and one that I’ve seen used to basically mean “OMG and shut up because you disagree with me. You are bad and should feel bad for not taking my viewpoint.”

    If White Dude Bro vandalizes the on-campus Hillel (example used because I am Jewish) or says something derogatory about how minority X belongs tending the grounds and not in class (as students or professors) throw him out of school. I am more suspicious if not feeling safe becomes “How dare you criticize my view on Israel/Palestine? Or immigration?” I don’t feel safe in the presence of people who disagree. You talk about how Ideology is the enemy and part of us learning to be better is going to involve realizing that not everyone has to agree with you on everything and that is okay. Sometimes someone can disagree substantially and have it be okay. This also requires the resisting the urge to troll the other side. I am all for people learning to be more civil that way.

    Burt also brings up a great point that civil speech rarely needs legal protection. The really out there stuff does need legal protection.Report

    • Avatar Jaybird in reply to Saul Degraw says:

      What I find funny is how your example seems to say “I’d be okay if people like me were in charge of telling people who say things that I find offensive that they would be kicked out, but I’m less okay when we start exploring stuff outside of that.”

      (For the record, I’m pretty sure that “vandalism” doesn’t qualify as “free speech”.)

      But, let me ask you this: would advocacy of genocide/ethnic cleansing qualify as “free speech”, in your view? How about advocacy of institutionalized racism? (WATCH OUT!!! THIS IS A TRICK QUESTION!!!!)Report

  9. Avatar Tod Kelly says:

    As an aside, I had never seen that polling statistic of 38% thinking the 1st Amendment went to far. Judging on the timelines where it’s spiked, I suspect that the sticky wicket is freedom of religion, not speech.

    Still, I would be interested to know more about it. 38 seems an depressingly high number.Report

    • Avatar Saul Degraw in reply to Tod Kelly says:

      The problem is that speech is broad. Someone can be troubled by pornography but think burning a flag is okay and vice-versa. You would need to ask a highly-detailed set of questions to figure out what someone meant by too far.Report

    • Avatar Troublesome Frog in reply to Tod Kelly says:

      If it didn’t exist, do you think the First Amendment could be passed these days? I’m not sure it could pass as a piece of federal legislation, much less a constitutional amendment. That makes it all the more impressive to me that it was adopted by people in the 18th century.Report

      • Avatar LeeEsq in reply to Troublesome Frog says:

        Its not really clear what the writers of the Constitution thought when they wrote the First Amendment into the Constitution or at least its not clear what they believed should be protected or not in terms of speech. 19th century Americans certainly had no problems saying they believed in free speech while supporting the great censor Anthony Comstock. Local and state governments long censored media in the United States. One reason for the Hayes Code was that Hollywood studios were tired of dealing with dozens of different censorship standards and wanted to create a national standard to make film distribution easier. That way a movie wouldn’t have to be edited or even shot in multiple ways to be acceptable to different markets. The idea that First Amendment should protect every form of speech including pornography is very recent, like within in the lifetime of the oldest posters on this group.Report

      • Avatar James Hanley in reply to Troublesome Frog says:

        That makes it all the more impressive to me that it was adopted by people in the 18th century.

        @troublesome-frog, keep in mind they were only applying it to this new-fangled federal gov’t they were kinda scared of even bringing into existence. They didn’t apply all the limits in the First Amendment to their own states’ constitutions. Some, varying by, state, but not all.Report

    • Avatar Michael M. in reply to Tod Kelly says:

      Just a guess, but one factor might be Citizens United. A lot of people generally supportive of free speech, both in concept and (usually) as applied, have trouble with the absolutist idea of money equaling speech. Free speech doesn’t seem so free anymore when the people with all the money can buy more of it.Report

      • Avatar Jaybird in reply to Michael M. says:

        What bugs me about Citizens United being brought up as an example is that we aren’t talking about the law being used to prevent a particular PAC from buying more than 10 hours’ worth of commercials in a particular month.

        The law was used to censor a movie. When the lawyers stood before the Supreme Court to defend the law, they argued that the law could, in theory, be used to ban books.

        I’m a First Amendment Absolutist not because I’m unwilling to discuss whether a particular PAC should be prevented from buying more than 10 hours’ worth of commercials in a particular month. Hell, that might be an interesting discussing. It’s because if we start discussing that sort of thing, the next thing you know, the government is censoring movies and arguing that it can ban books if it wants.

        Absolutism is the less dangerous position in practice.Report

      • Avatar Michael M. in reply to Michael M. says:


        The problem I see is the fundamental disconnect between the way the absolutist position treats the concept of “free speech” (or, perhaps, just “speech”) and the way speech plays out in the real world.

        I think one reason free speech has enjoyed such widespread public support in the U.S. is that it plays so well to our national idealization of “fairness.” Americans tend to have a well-tuned, almost knee-jerk aversion to systems that can be demonstrated to be rigged in favor of any particular group or against any particular group. Over the past several decades, conservatives have become expert at exploiting this and liberals have been playing a lot of catch-up, somewhat effectively on a lot of fronts. If you can demonstrate why something is fair or unfair, you’ve already won at least half the battle in swaying public opinion to your side. [1]

        Free speech, conceptually, is fair — everyone who can express themselves gets to, without government constraint. But practically, the manner in which that expression can be disseminated is constrained. Resources available for the dissemination are inherently limited. Even if they are much less limited than they used to be, there are still long-established channels that have a far bigger reach for dissemination than others. And those channels are expensive, only open to people who can assemble sufficient resources to utilize them. There has been a growing awareness of dynamic for at least a few decades, most commonly in the political arena (but also, I think, in the area of creative expression — specifically, in the absolutist view of copyright and patent law and how that has decimated the commons that creators relied on for centuries before multinational corporations worked to lock it up, with the cooperation of government officials who get hefty contributions from those corporations.)

        I think that has the unfortunate effect of eroding support for free speech, not because people don’t still believe that everyone should have the right to express themselves without government constraint, but because people are increasingly aware of how highly monetized the channels for disseminating the speech are. The system is looking more rigged after Citizens United than it did before. The longer the absolutist view that time, place, manner of speech don’t matter holds sway, the more support for free speech will continue to erode.

        [1] A prerequisite for this is belief that the particular group in question is one that deserves to be treated fairly. Race-based slavery and discrimination was okay when the majority of white people viewed black people as inherently inferior. Same-sex marriage had no chance until LGBT people were no longer viewed by the majority as inherently sick or perverted. When you can successfully demonize a particular group, you don’t have to treat them fairly.Report

      • Avatar James Hanley in reply to Michael M. says:

        Michael M.,

        Three points:

        1. Your comment focuses on something very different than “civility.” That’s ok, and I’m not complaining, just emphasizing that we’re now talking about something other than what Dirks was talking about.

        2. Absolutist copyright is an issue where you’ll find most absolutist free speech people standing shoulder to shoulder with you. Some even argue for the complete elimination of copyright.

        3. Your suggestion that there is an “absolutist view that time, place, manner of speech don’t matter,” is not wholly accurate. Most free speech absolutists–in fact all of them that ai personally know–think reasonable time, place and manner restrictions are legitimate. I’m not acquainted with anyone who argues that you should be able to drive a sound truck through a residential neighborhood at 3 am blasting your message at 120 decibels. Granted, they might accept fewer TPM restrictions than you might, but they’re not entirely opposed.Report

      • Avatar James K in reply to Michael M. says:

        @michael-m @jaybird

        I think what a lot of people fail to grasp is that its actually really hard to separate what PACs do from what private citizens do, especially since PACs have every reason to obfuscate that distinction. To make the restrictions effective they need to be disturbingly broad.Report

    • I didn’t click on James’s link, but depending on how the question(s) was(were) phrased, it might not have been about freedom of speech at all, but about separation between state and religion. Not that I disagree with the concept, but it might not’ve been about freedom of speech. Or it might’ve.Report

    • Avatar James Hanley in reply to Tod Kelly says:

      Here’s the question:
      “Based on your own feelings about the First Amendment, please tell me whether you agree or disagree with the following statement: The First Amendment goes too far in the rights it guarantees.”

      All survey questions, and responses from multiple years, can be seen here.

      For a more specific free speech question, using specific examples, Volokh reports on a General Social Survey question. Support for speech increases with education, but he finds that 21% of whites with graduate degrees are willing to censor at least some offensive speech.Report

      • Avatar Saul Degraw in reply to James Hanley says:


        That being said, the US is an outlier in how extreme our 1st Amendment is taken even compared to other developed nations. Offensive is also an elastic word. I imagine that there are people who would unironically censor Mapplethorpe or Serrano but not someone using a homophobic or racist slur sincerely. There are also people who would probably censor homophobic and racist slurs but not Mapplethorp or Serrano.

        In short, people are weird.Report

      • Thanks for the references, James. I might look at them later.Report

      • I’ve just read Volokh’s short piece and I have a criticism of it (even though I must acknowledge that it’s a short blog post and not an in-depth academic monograph). I think it’s one thing for people to take the pro-speech line in a series of questions. It’s quite another when it’s a specific, real live controversy. I suspect that the recent unpleasantness in the University of Illinois suggests that many people who sincerely would have answered those questions in support of the free speech position now seem to adopt a restrictionist approach. It’s something we’re all potentially guilty of, not just those calling for the non-hiring of Mr. Salaita.Report

      • Avatar James Hanley in reply to James Hanley says:


        There’s the rub, right? It’s easy to be supportive of free speech in the abstract, but only when we encounter specific cases do we find who really supports free speech, supports it even when it’s not their own and is offensive to them.Report

      • Yeah, I agree. Since I’ve never really been tested on that score, I sometimes wonder if I’m really one of the elect whose belief is sincere, or if it is just ritual.Report

      • A little less snarkily:

        My point is that Volokh was wrong. Opposition to freedom of speech does indeed, in part and in some cases, depend on whose ox is being gored, not solely on the education level of the person. The more educated person might know the “right answer” on the test, but does not necessarily put it in practice when it’s his/her ox.

        I also wouldn’t be surprised if lesser educated people–especially if we use education as a marker of class–see more instances of infringements on their own speech rights and at the same time see “professionals” (especially professors) empowered to exercise their speech rights more often and more vigorously.

        The answer isn’t to limit professionals’ rights, of course. It’s to empower people without the props of professionalism to be able to exercise the same rights in practice. Perhaps only so much can be done, but I think such a dynamic could be going on.Report

      • Avatar LeeEsq in reply to James Hanley says:

        @Saul, aren’t people who would censor Mapplethorpe more likely to be homophobic or at least puritanical and therefore more sympathetic to homophobia and therefore more likely to tolerate homophobic speech than homoerotic art. Likewise, aren’t people who would censor homophobic speech more likely to not be homophobic and therefore tolerant of homoerotic art. I think your examples don’t work because of how people’s sympathies align. For an example of weird inconsistent censorship, you need somebody that would un-ironically censor Mapplethorpe but be fine with the works of Tom of Finland.Report

    • Avatar Patrick in reply to Tod Kelly says:

      FWIW, the Founders probably felt okay with going pretty far given that people still could call you out for a duel back on those days if you said something particularly risible, and you were either sorta obligated to accept or grovel.Report

  10. Avatar Kazzy says:

    Rather than attempt to delineate between what is and is not civil, why not consider the productivity of speech? How constructive it is based on the context in which it is delivered?

    Imagine, for instance, a college course on the American Civil War. While the argument that the south was exclusively interested in states’ rights and that the war was not about slavery might be considered offensive/unpalatable/uncivil to some, examining it is germane to the purpose of the class and would seem to hold high constructive value. Referring to black folks as the n-word — which would be considered offensive/unpalatable/uncivil by many, with a large overlap with the group that found the states’ rights argument as such — is unconstructive and detracts from the purpose of that class. As such, it would be appropriate to bar such language.

    But that is a classroom setting. Let’s now imagine a public sidewalk. The purpose of a public sidewalk is very different than a classroom. As such, it should have different rules. Yelling the n-word at black folks as they pass likely* doesn’t detract from their ability to make use of that sidewalk in such a way that it overwhelms the individual right to free speech, as offensive/unpalatable/uncivil as that speech may be. However, yelling, “I will kill any n-word that passes me on this sidewalk,” and posturing in any such way to indicate any amount of seriousness to this statement how does impact the “productivity” of that sidewalk. The sidewalk cannot serve it purpose at that point. As such, that speech ought be banned.

    Am I making any sense here?

    * As a white person, I may well be inaccurately weighing the different sides of this equation. I am fully prepared to stand corrected on this.Report

    • Avatar Gabriel Conroy in reply to Kazzy says:

      You are making sense, although I’d want the default to be in favor of speech. You’re not necessarily saying otherwise, but I wanted to state that.

      I do think that a white person calling a black person “n-word” on a public sidewalk is almost inherently a threat of bodily harm, perhaps assuming certain things about the neighborhood in question or the relationship between the two people. I guess I’m approaching that position from the vantage point of my own neighborhood in Chicago. Very few persons of color live here, and although I haven’t asked, I imagine it can be intimidating for one to walk down the sidestreets around where I live. (The main streets, probably not so much, but again, I haven’t asked.) I’d have a hard time someone not feeling threatened, and legitimately so, by being called “n-word” by an adult white stranger there. If I did witness such an exchange, I *might* be persuaded that calling the police *could* be a good idea to ensure the person’s protection. (That’s assuming a lot which is not in evidence: that I’d actually call out my neighbors, that introducing the police would actually help and not hurt matters, that there is an implicit threat going on.) I have never witnessed such an exchange, but I think it comes close to the line. And for the record, I probably wouldn’t call the police, for all the reasons, both good and bad, from my parenthetical comment.Report

      • “I’d have a hard time someone not feeling threatened, and legitimately so, by being called “n-word” by an adult white stranger there.”

        Clunky writing, I should have said, “I’d have a hard time believing someone wouldn’t feel threatened”Report

      • Avatar Kazzy in reply to Gabriel Conroy says:


        That might not have been the best example, for reasons you note. However, the idea of setting “rules” based on the purpose of a given space seems like a no-brainer to me. And, yes, I agree that the goal should be to maximize freedom of speech.Report

      • Kazzy,

        I guess we’re pretty much in agreement (and I shouldn’t have nitpicked your example, either, because I know what you were getting at). I’ll just underscore the point about the goal being to maximize freedom of speech: any “purpose-based” rule should be “rules for things that might qualify as exceptions, provided strict scrutiny is also met.”Report

    • Avatar James Hanley in reply to Kazzy says:


      I get where you’re coming from, and I don’t want to be too critical, but I will say your opening lines made me shudder.

      why not consider the productivity of speech? How constructive it is based on the context in which it is delivered?

      I don’t think you were suggesting that government censors get to decide whether your speech is productive/constructive, and decide based on that whether it gets First Amendment protection or not. But that’s how it initially reads to me (were you someone who was not-Kazzy, I might believe that’s what you meant, but I think I know you well enough to assume that’s not it.)

      As to the classroom, it belongs to the professor, and they can enforce decorum. They would be in the wrong for punishing a student for expressing an unpopular viewpoint, when there is discussion, but they don’t have to allow discussion, and they can enforce rules to promote a productive learning environment–that is, they can punish disruptive behavior, but not the speech itself. That this is a fuzzy and indeterminate line is, of course, inevitable. As I always tell my students, the real world is never as neatly organized as the categories we impose on it in order to understand it.Report

  11. Avatar Michael Drew says:

    As a kid & early collegian I styled myself a First Amendment absolutist – wrote a paper defending Texas vs. Johnson, the whole bit. (Not that that’s that extreme a First Amendment position, but it just illustrates my interest.)

    In college I took a class on the First Amendment and decided I thought the fact that there are so many exceptions to truly free speech we believe in that it must not be really all that important to us, but I still felt it was quite important to me and to all of us as a civic valueI had a more attenuated view of what it should mean legally in practice, though.

    Recently the McCullen v. Coakley decision, and its unanimity, made me question whether I’m particularly committed to free speech as a value at all anymore, if it must mean what the Court held it to mean. As a previous attitude did, I’m sure that attitude will eventually moderate. But it hasn’t yet.Report

    • Avatar James Hanley in reply to Michael Drew says:

      One of the things I find amusing about the objections to McCullen v. Coakley is that nobody seems to notice the decision was unanimous, withKagan and Sotomayor. This one can’t be written off as 7 men who just don’t get it. If you find that decision weakens your support for free speech, then it would seem to me that your problem probably is with the absolutist phrasing of the First Amendment itself.

      there are so many exceptions to truly free speech

      Except legally there really aren’t, and mostly they’re out at the extremes.Report

      • Avatar James Hanley in reply to James Hanley says:

        Let me expand on that last point by considering the exceptions to free speech.

        1. Libel/slander: This exception exists to protect people from harm, but not harm to their sensibilities or feelings. And it’s tremendously curtailed. If the person is a public figure, their protection is limited. Simply making false statements about a person is insufficient; they have to show that you knew or should have known the statements were false, or that you made them with reckless disregard for the truth. If the facts are parody or mockery, they’re protected no matter how outrageous (just ask Jerry Falwell). If your statements are clearly opinion, you can say damn near anything about a person. “I think James Hanley is so dishonest he probably sells grades for money and sexual favors,” is a statement that could do real harm to my reputation, but would be protected. (There’s a reason people go jurisdiction shopping in other countries–hello, Britain!–in these cases; the U.S. isn’t friendly to libel/slander claims.)

        2. Threats: This again goes to real harm to a person, and the threat is only unprotected if it is plausibly linked to a likelihood of action. You can make unserious threats, but serious enough to make people really nervous about you, pretty freely. (That is, constitutionally you can–there’s a good chance your local police department doesn’t have any officers who know jack shit about your constitutional, or if they do, don’t give a flying fuck about them.)

        3. Obscenity: Obscenity is limited to things that “lacks serious literary, artistic, political, or scientific value,” which actually sounds like a lot could fit within it. But in fact the application has been narrowed so that very little is actually legally obscene. Although Miller does include the stupid community standards test, all three prongs of the test must be met, so obscenity applies only to sexual conduct that is “patently offensive” and has no other merit. But there’s not much that fits in that content. Child pornography does, but even so virtual child pornography is legal, demonstrating that it’s not the message that’s being restricted here so much as it is the harm to actual children–the act, rather than the idea or its expression, is banned.

        4. Perjury: Here we have a truly compelling public interest limiting speech, our interest in a fair system of justice, which is as rock-bottom fundamental to our polity as free speech itself.

        5. Use of copyrighted words/images: Probably all of us here agree copyright has gone too far, but of course the Constitution explicitly allows Congress to limit speech in this particular way, and that allowance actually predates the First Amendment.

        6. The speech of minors: The Court has allowed the speech of minors–and, I think, even 18 year olds if they are still in school–to be limited. This is controversial, but at worst it reflects only that children are not yet citizens with full participation rights. It’s a very limited–time limited–exception, and even so it’s not an absolute exception (c.f., Tinker v. Des Moines).

        7. Commercial speech: This one is also controversial, to some extent. Commercial speech enjoys some constitutional protection, though; it’s just not absolute.

        Have I overlooked something? Probably (and I’ll probably be embarrassed when you point out what I overlooked). Anyway, is this a lot of exceptions? I guess that depends what our standard is. It doesn’t seem like a lot of exceptions to me. Maybe there’s a few more exception than there are for free exercise, but then our religious practices are less likely to cause harm to some others in some way than our speech is. I think there are fewer exceptions for speech than there are to the search and seizure class, which is such a jurisprudential mess that I feel as though I’ve lost all semblance of what our actual constitutional rights are against police searches.Report

      • Avatar Michael Drew in reply to James Hanley says:

        If you find that decision weakens your support for free speech, then it would seem to me that your problem probably is with the absolutist phrasing of the First Amendment itself.

        Transitioning out of my youthful POV, that was indeed a big part of the issue. I was willing to go with the absolutist phrasing basically until I thought about some applications that were harder than flag burning. Then when I found out that a lot* of exceptions exist and why a lot of them do, I decided that made a lot more sense.

        You did notice that I specifically mentioned the unanimity? I’m not sure why the unanimity must mean that my problem is with the absolutist language. Obviously, yes, I would have a problem with an absolutist interpretation (though, who knows, status quo bias probably plays a part in why I came to support the approach I learned about in the 1A class. If existing interpretation had featured consistently absolutist application of the First Amendment, I might have cottoned to that just as well). The unanimity doesn’t reflect the absolutist phrasing of the amendment. The unanimity shows agreement that this regulation was on the opposite side of a non-absolutist line that had been drawn about what constitute reasonable time, place, and manner restrictions on speech. If the plain language of the amendment were really at issue, there would be no time/place/manner restriction, reasonable or otherwise.

        And it’s a reasonable legal finding given the precedent (which is plainly contra the language of the constitution), and also given that interpretation has to be kept within some kind of decent earshot of the language of the text in order to keep people from freaking out. That’s why what it caused me to question was not the language of the constitution, which is clearly more absolutist than any of us wants to see applied and thus really not the issue. (I mean, not any more than any other provision of the constitution, anyway. Are you saying that what I had been caused to question is whether the First Amendment was something less than Perfect Divine Law? Of course I think it’s not; that’s what I realized shortly after I started looking at it rationally and factually.) Nor was it the legal reasonability of the finding. Given the language of the constitution, nearly any move in the direction of limiting speech restrictions is clearly legally reasonable, even if it adjusts precedent somewhat.

        No, what I realized I had to question or adjust (again) or re-observe in myself was simply the degree to which I value Free Speech as an abstract value in light of, or in the context of, this matter, which then compelled me to reopen the issue of how much I value Free Speech as a civic value at all. I realized I have minimal interest in protecting anyone’s right to use the public sidewalk to attempt to dissuade individual fellow citizens from going about their private, lawful business. At really any distance. I don’t want it to be illegal for there to be a law in your town, James, making it illegal (reasonably so – nothing more serious than an ordinance violation) for people to be able to stand at 50 yards to try to get you, James, not to buy a coffee at Tim Hortons. If there’s a problem with people being able to get into Tim’s for coffee for fear of being verbally accosted by people protesting working conditions in Ethiopia and a 8-foot bubble and 10-foot fixed buffers have not done the trick, I don’t care what the radius needs to be, I have no interest protecting anyone’s right to involve themselves in the person’s attempt to get their coffee. That’s not to say I want laws passed where there’s no need for them, but it is to say that I think sidewalks are first and foremost places for people to use to get where they’re going and not have to answer to strangers for why they’re going there.

        Now, that’s all pretty damn contrary to the spirit of a high prioritization of Free Speech and of the First Amendment, isn’t it? It’s not a function of the too-absolutist language of the legal text. It goes pretty much right at the spirit of the thing, at least as we currently understand it, does it not? (Or does it not?) So my issue is really with the value of Free Speech itself as a value, not with the text of the constitution. I guess you could say that I must, then, in a sense have “an issue” with the absolutist text of the First Amendment, but that presupposes that I otherwise find my values strongly in alignment with the values set out in the constitution, so that “an issue” flows from departures between them. But that ship sailed long ago. The values of the constitution quite often just don’t really reflect my own, so it’s no particular issue when I’m examining a particular place where they do. The issue really isn’t, or so I’m starting to think, “Gee whiz, the First Amendment doesn’t say quite exactly what I’d like it to.” It’s that I’m not sure (I’ve made no hard decisions here yet) that I’m on board with the extent of the prioritization of this value at all, well past the point where some minor tweaking of the language to make it not so absolute would address the issue. (Again – not sure where I stand. Reevaluating. I’m not on the other side yet, either.)

        * On the number of exceptions, as you say, it does all depend on where you’re looking from. The number of exceptions, and especially the way there seemed to be greater, not lesser, fealty to the plain language of the amendment the further back, and thus closer to ratification, in time you went, certainly was pretty surprising to someone who didn’t have much of a pre-formed idea about how many there were going to be, but instead just understood Free Speech to be a central value of our civic life, but was able to read the text of the amendment and form naive impressions that way. That was the person on whom learning of the variety of exemptions had such an effect.Report

      • One point I’m not sure I stressed quite enough – it’s in large part the unanimity of McCullen that brings me to question how much I value Free Speech as a value. The unanimity wouldn’t strictly be necessary, because as I say, given the language of the amendment such a decision can clearly be justified, so I could take up the issue voluntarily, noticing that I don;t stand with those making the more restrictive understanding of the First Amendment and considering what that means for my valuation of Free Speech. But that would also be pretty easy to avoid, since I think the opposite finding would be legally justified too – I’m a pretty strong constitutional indeterminist. I wouldn’t need to do a values reassessment in a split decision (even 8-1), because I could say that my view is consistent with a reasonable interpretaion of the text that at least some jurists at the very top of our system would defend publicly and officially, hence I’m in line with a reasonable and viable reading of the First Amendment. And If I’m right with the First Amendment, then I could tell myself I’m also good with Free Speech. (To be clear, the last few sentences stand as a kind of hypothetical rationalization I could do, not as argument.)

        But the unanimity really forces the values-level reassessment. The First Amendment couldn’t be plainer (it’s only our decision to adopt a loosened approach to application that lets us deal with the hard cases that the language clearly prescribes the way we want to). Our courts have helped themselves to a number of exceptions to the plain language in order to allow for other values to be pursued. But they have drawn the line, in this case, unanimously in a place where I basically don’t even see a need for any clear line at all. I’m left with really no choice but to undertake the values-level reassessment.Report

      • Use of copyrighted words/images: Probably all of us here agree copyright has gone too far, but of course the Constitution explicitly allows Congress to limit speech in this particular way, and that allowance actually predates the First Amendment.

        Mostly because I’m trying to be difficult and have nothing better to do on a Sunday morning, I’ll say this: could the 1st amendment be interpreted as overruling copyright, sense it did come later than that provision? The answer is probably no, but I do imagine that fair use may have emerged partially to ensure freedom of speech in a copyright world. (If memory serves, the doctrine can be traced back to the early 1800s, but I forget the court case.)

        And yes, I agree that copyright has gone too far.Report

      • Avatar James Hanley in reply to James Hanley says:

        From my perspective, free speech is really our last resort before violence, and there’s a real danger that restricting speech will shift people to that last resort that much more quickly. And ultimately, I think opposition to wide open free speech reflects an antipathy to the freedom of others. It’s never our own speech we believe ought to be limited, because we’re the good guys; it’s always the speech of others.

        Isn’t it interesting how we–whoever we may be–are always in the right, and it’s not we who should be constrained?Report

      • It’s never our own speech we believe ought to be limited, because we’re the good guys; it’s always the speech of others.

        Well, of course we….[THIS PORTION OF THE COMMENT IS SELF-REDACTED IN THE INTEREST OF LIMITING MY OWN SPEECH]….it when I see it,” a standard I find problematic, to say the least.Report

      • Avatar James Hanley in reply to James Hanley says:


        I’m sure it could, but there’d be no solid textual or historical basis for it. You couldn’t make a good original understanding argument or an argument based on precedent (not that I can imagine). The whole reason commercial speech in general–and copyright violations would, I think, fall under that broad term–can be somewhat more limited is that we understand the original purpose of the First Amendment to have been to protect political speech.* So it would require a new constitutional doctrine, I would imagine.
        *This is why conservatives tend to object to the way free “speech” has been transformed into free “expression” to such an extent that nude dancing gets First Amendment protection. I’m opposed to morality laws myself, but I do find the First Amendment claim for nude dancing to be a bit hard to swallow.Report

    • I suppose if I were the one doing the dancing, the SCOTUS would quickly find a way to distinguish the case and permit any and all jurisdictions to ban it.Report

  12. Avatar Jim Heffman says:

    The easy solution, of course, is to declare that certain acts are not speech but are in fact attacks.

    “You knew I had a history of sexual abuse, and you knew that I experienced severe emotional trauma when it is discussed around me, and so in bringing up the topic you specifically intended to cause me severe emotional trauma, which is an attack on me.”Report

  13. Avatar Ordinary Echo Chamber says:

    [Note: Comment content has been modified by the editors.]

    Hi! I’m the sockpuppet that was banned eons ago. I’ll be popping up over the next few weeks to post things explaining how I’m not a sock puppet and have only just found this site, but let’s be honest: I’m not fooling anyone.

    All of those comments will be deleted on sight. So please enjoy this one! Report