drwex: (Default)
[personal profile] drwex
I want to return to the "free speech, hate speech" discussion I posted about last month. There are two good easily readable articles from actual lawyers that I want to bring to your attention.

First up , "Remaining Faithful to Free Speech and Academic Freedom" written by Vikram David Amar, the Dean at the University of Illinois College of Law. Professor Amar decries the trend on campuses to prevent conservative speakers from delivering invited remarks. Often such obstruction comes in the form of shouting down or physically threatening the speaker (or the audience). Sadly, often such obstruction comes from forces that would consider themselves liberal or progressive. These groups often uphold values of diversity and inclusiveness, but argue that such values only extend to members of disadvantaged groups.

Traditionally, conservative viewpoints are expressed by members of privileged groups (men, cis, able, white, etc.) and the argument goes that such people aren't entitled to the same speech rights. Or, as Zunger and Samudzi argued in the previous go-round, the extension of free-speech rights to (what Amar identifies as) "odious, racist, sexist, hateful speech" is furthering the disadvantages already present in our system and so therefore the solution is to restrict such speech.

As Amar further says:
blockading, obstructing, assaulting, destroying property, and making threats, are not, in any stretch of the imagination, constitutionally protected things to do, no matter what the objective behind them

Use of such tactics in the furtherance of speech suppression is therefore doubly wrong. This is the principle under which it has been possible to remove people who are blockading entrances to, say, health clinics that provide abortion services. We cannot both request such protection for our favored friends and deny it to our hated enemies.

The second item, much blunter and less academic, is "Actually, hate speech is protected speech" an Op-Ed in the LA Times by Ken White, a lawyer perhaps best known for The Popehat blog. When not blogging, White is a practicing criminal defense lawyer.

White makes the point that I kind of belabored last time - the exceptions to free speech are few and narrow and that's for very good reason. Hate speech is protected, unless it can be shown to violate one of the immediacy exceptions, such as when it "...might be reasonably interpreted as an immediate threat to do harm."

He discusses various exceptions and arguments that are worth discussing but points out that even as attitudes in other areas of law (e.g. equal marriage, consensual adult same-sex acts) have changed rapidly, the courts have been unwilling to back off of strong protections for speech. And that's a good thing.
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