Category: First Amendment

Mission creep at the FFRF

December 17, 2023 • 12:30 pm

One of my favorite secular organizations is the Freedom from Religion Foundation (FFRF), of which I’m a member of the “honorary board”.  But even honorary boards should play an advisory role, and so I’m doing that here by calling attention to the organization’s mission creep.

In previous posts, I noted that the organization, which is dedicated to keeping church and state separate—a most laudatory goal—had branched out into areas that didn’t really aim at that goal. For example, they’ve gotten involved in legislation that promotes the participation of trans women in women’s sports, which is not only not a church/state issue, but is unfair and, I think, harmful to women’s rights. The FFRF also branched out into disability rights. That’s a cause I do support, but is not in the stated ambit of the FFRF. At the time I posted about this, I wrote:

This time, the FFRF is making a push for disability rights. While I’m in favor of disability rights, I don’t see them as connected in any way with the separation of church and state. This latest move, on top of the unwise support for transsexual girls participating in public school sports (especially when they’re post pubescent), shows that the organization is expanding into the realm of social justice, just as the ACLU and SPLC has. In general, I see such an expansion as unwise, especially when it involves misguided stands like those about transgender women athletes.

This, too, isn’t a church/state issue, but in both cases above the FFRF has tried to justify entering these areas by saying that they’re forms of “Christian nationalism.” That is, Christian nationalists may oppose trans activism more than do “regular” Americans, and may also be more often against disability rights, though that connection seems more nebulous. Here’s what the FFRF said about that:

Disability rights are a state/church issue.

While America’s conscience has not consistently recognized this, there are clear ties between the Christian nationalist ideology that pervades legislation and the ongoing reality of stagnant and inadequate disability rights laws. The dangerous theocratic Christian ideology that led to Roe v. Wade being overturned is the same ideology that continues to play a part in the oppression of the 61 million disabled adults across the United States. This ideology has guided both harmful disability rights policy and the dismantling of abortion rights. To put it simply, if you care about disability rights, then you also care about the separation of state and church

That didn’t convince me that much.  Several of us wrote to the FFRF about this expanding mission, but the organization simply stuck to its guns that these are church/state issues.

Now the FFRF has expanded its mission again—this time promoting voting rights and some legal attempts to make it hard for minorities to vote, even if they’re citizens. That, too, is a form of activism I favor, but, like the cases above, the FFRF justifies this activism as opposing Christian nationalism. In the latest issue of their paper, Freethought Today (click on the headline), there’s an article by Sammi Lawrence, “FFRF’s Anne Nicol Gaylor Legal Fellow,” justifying a push for voting rights on the grounds that opposing those rights is one goal of Christian nationalism. Click the headline to read.

Again, I favor opposing attempts to restrict voting, but that is simply not a church state issue. Here’s how Ms. Lawrence justifies it:

A vibrant, fully franchised electorate is the best guarantee to protect our secular Constitution and government. Without a functioning democracy, the wall of separation between state and church cannot be protected or rebuilt. A diverse and fully enfranchised electorate ensures that no single religion, sect or group can take charge of government and privilege itself or discriminate against others. Protecting voting rights, and thus our democracy, is therefore a state/church issue that should concern all secular Americans

. . . . A three-judge panel in Arkansas State Conference of the NAACP v. Arkansas Board of Apportionment has ruled that private parties, including membership organizations, cannot sue to enforce Section 2 of the Voting Rights Act. Judge David Stras, a President Trump appointee who FFRF highlighted in its 2020 report on the Christian nationalist takeover of the federal courts, wrote for the majority, saying only the federal government may sue to enforce Section 2. For context, Section 2 of the Voting Rights Act prohibits states from creating voting laws that discriminate against voters on the basis of race, and it has become one of the cornerstones of our country’s civil rights laws since it was enacted in 1964.

This is thin gruel and tortured logic.  To say that this is a church/state issue because only a fully franchised citizenry can enforce the Constitution, or that the federal courts are being infested with Christian nationalists, does not show that voting rights is a church/state issue. If you want to say that, then any belief or act that can be connected with Christianity or Christian nationalism becomes a church/state issue. But fighting for voting rights does nothing to keep that First Amendment wall up.

In fact, I’d say that those who benefit most from enforcing voting rights, minorities who are mostly black, are those most likely to be religious. As a 2018 Pew Poll found, and this has been true for decades, “Black Americans are more likely than overall public to be Christian, Protestant.” That doesn’t mean that they’re more likely to be “Christian Nationalists,” of course, but the more religious someone is, the more likely they are to favor erasing the wall between church and state. Atheists don’t oppose the Establishment Clause.

The issue is certainly one of civil rights, but not Establishment Clause rights.

If the FFRF wants to expand its mission, it should admit that frankly, and not engage in this kind of circumlocution to justify its expansion. It’s unseemly and illogical. And, in the case of transgender activisim, by buying into progressive politics, the creep can even be harmful.

And this is my say as an Honorary Board member. The ACLU and the SPLC were once fine secular organizations devoted to protecting everyone’s civil rights.  Now both are circling the drain (the SPLC is actually in the drain) because they decided that social justice is as important—or more important—than civil rights. I’d hate to see my beloved FFRF go the same route.

Why calls for genocide are usually legal

December 13, 2023 • 10:00 am

A lot of the fracas around Presidentgate, when Republican members of Congress questioned—some might say bullied—the Presidents of Harvard, MIT, and Penn about their speech policies, centered on how the Presidents answered questions about hypothetical calls for the genocide of Jews.  Their answers ultimately led to the resignation of Penn President Liz Magill as well as of the head of Penn’s Board of Trustees. Harvard’s President Claudine Gay squeaked through after scrutiny by the university’s board of Overseers. It was after Magill walked back her “it depends” answer, and issued a video calling for censorship of calls for genocide, that I decided that she should go—and she did. In my view, nobody should run a University who favors serious curbs on the First Amendment.

Much of the arguments then and now involved whether calls for genocide of the Jews should be permitted—permitted under both the universities’ speech codes and, I suppose, the First Amendment. I don’t know about the speech codes of those three schools, which, according to the Presidents, largely do conform to the courts’ interpretation of the First Amendment. And, as I said at the time, using the First Amendment standard one would have to answer the question, “Do your speech codes prohibit calling for the genocide of Jews?” by saying “it depends.” That is the correct answer, but the Republican bullies didn’t like it, yelling and demanding a “yes or no” answer. But such an answer isn’t feasible for many First Amendment questions, which often do depend on how and when speech is uttered.

The problem in Congress, I’ve added, came not from these correct answers (though Magill retracted hers, which was a big mistake), but from the arrant hypocrisy exercised by these schools, so that minor infractions of speech were punished while calls for genocide of the Jews—at least in the “river to the sea” mantra—were fine. It doesn’t look good to suddenly adopt strict First-Amendment principles right at the time when they involve criticism of Jews.

Also acceptable would be more explicit calls for genocide—under most circumstances.  My solution (and Steve Pinker’s) was to enact both a Chicago-style First Amendment speech code and a policy of institutional neutrality. (Steve had three other suggestions, too.)

I was glad to see, then, that the Foundation for Individual Rights and Expression (FIRE) laid out the legal issues behind calls for genocide on campus, and concluded, as you can see below, that yes, most calls for genocide are protected speech under the First Amendment. The exceptions are things that you’ll already know if you’re a free-speech maven.

Click to read (or listen). The piece is by Aaron Terr, FIRE’s director of public advocacy, and Matthew Harwood, FIRE’s vice president of communications. I’m certain that they consulted with FIRE’s legal experts as well, so I’d take this as a pretty definitive view.

Excerpts from the short article are indented, and my own text is flush left.

FIRE agrees that the issue at the hearings was not free speech, but double standards, and that Magill abandoned free speech entirely in her apologia (bolding and headings are mine, FIRE’s words are indented):

Many of those pressuring universities to punish anti-Semitic speech are rightly calling out these institutions for having double standards — policing microaggressions while letting enthusiastic support for Hamas go unpunished. They’ve correctly identified the problem, but are pursuing the wrong solution. The right solution is to eliminate all speech codes and protect free speech consistently — not to censor consistently.

Nonetheless, Magill has chosen to open the door to more censorship — and it’s a decision that will reverberate across our nation’s campuses and have consequences for the very Jewish students and faculty she rightly wants to protect in this turbulent moment. While it may not be intuitive at first blush, there are good reasons why both the First Amendment and most colleges’ free speech promises generally protect even “calls for genocide.”

What does the First Amendment allow about this issue?

Harvard, Penn, and MIT are private institutions, but they commit — on paper, though often not in practice — to protecting free speech, so their students and faculty reasonably expect to benefit from First Amendment standards.

And the First Amendment protects advocacy of violence, so long as it doesn’t cross the line into unprotected conduct or speech like incitement or true threats. These narrow, well-defined exceptions protect individuals from immediate threats to their physical safety, without risking a widespread crackdown on dissenting or unpopular speech.

The Supreme Court defined incitement in the landmark case of Brandenburg v. Ohio. The justices held that the First Amendment protected speech at a Ku Klux Klan rally — complete with a burning cross — where armed Klansmen used slurs against black and Jewish people, called for “revengeance” if the government “continues to suppress the white, Caucasian race,” and announced a march on Congress on the Fourth of July.

Ergo, the Presidents were correct in saying that some time—indeed, most of the time, as you see below—it’s okay under the First Amendment not just to imply genocide (“from the river to the sea. . “) but to explicitly call for genocide. You can read more about Branderburg v. Ohio here, a case that set out the limits on calls for violence.

What legal curbs are there on calls for violence? There are a few, but as far as I know none of the campus calls for violence, implicit or explicit, have crossed these boundaries.

The Court made clear that speech promoting unlawful action loses First Amendment protection only if it is directed to and likely to produce imminent lawless action. That’s a necessarily high bar, designed to protect a great deal of charged political expression by capturing only that speech that is all but inseparable from the unlawful action that directly follows it. Quoting an earlier decision, the Court reiterated that “mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.”

The First Amendment also makes an exception for true threats — statements that communicate to another person or group a serious expression of intent to cause them unlawful physical harm.

Advocacy of genocide or violence remains protected speech, unless it meets one of these exceptions in the particular circumstances in which it’s uttered. So, the First Amendment would generally protect, for example, students peacefully marching across the quad chanting “From the river to the sea, Palestine will be free,” even if the chant were interpreted as supporting the ethnic cleansing or genocide of Israelis.

But as FIRE’s Legal Director Will Creeley recently explained, if the slogan were “directed at a specific Jewish student by a student or group moving threateningly towards him, during a protest that has turned violent and unstable, it may arguably constitute a true threat.” Moreover, “a campus speaker’s exhortations to a willing audience to attack a passerby might lawfully face punishment as incitement.”

I’ve seen none of these violations so far, but we now have a list the exceptions that fell under the “it depends” answers of the three university presidents.  And there’s one more form of calls for genocide that is not protected speech—speech that amounts to harassment. Bolding is mine:

Whether a call for genocide amounts to harassment also depends on context. Harassment is a pattern of unwanted behavior targeted at specific individuals, which may or may not include speech. Under the Supreme Court’s standard for discriminatory harassment in the educational context, the conduct must be targeted, unwelcome, and “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” The Department of Education has emphasized that harassment “must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.”  

But to be clear: Calling for genocide or violence could rise to the level of harassment. For example, if students repeatedly gathered outside a Jewish student’s dorm room and loudly called for Israel to be wiped off the map, that would almost certainly satisfy the Supreme Court’s standard. The issue is not so much the content of the speech — it’s the targeted, extreme, repetitive, unwanted nature of it, which crosses the line into harassing conduct.

Some of my colleagues at the University of Chicago still object to calls for genocide of the Jews that are considered protected speech under the criteria above. “What,” they ask, “do calls for genocide really accomplish?” This is a question asked and answered by John Stuart Mill in On Liberty (a must-read that you can read for free here). FIRE gives another answer: the “slippery slope” one, which I find reasonable. Another one is the “outing the baddies” answer: allowing people to utter even detestable speech enables you to identify those who hold odious views, people who could not be identified were they ordered to keep silent. Finally, there’s also the “sharpen your arguments” answer: you can only formulate your best response to such hatred if you encounter it in its most blatant and convincingly expressed form. The article explains:

But why protect even calls for genocide?

It’s completely understandable for people to pose this question. After all, the vast majority of us agree that genocide is evil and horrific. But most everyone also agrees in the abstract that “hate” is bad. While a ban on advocating genocide or mass killing may be somewhat more specific than a general ban on “hate speech,” it ultimately suffers from the same problems of vagueness and subjectivity.

As we’ve seen in the debate over the Israel-Hamas war, people can’t even agree on what constitutes genocide or advocacy of genocide. (It’s thankfully rare for someone to say explicitly, “We should murder all the Jews.”) When questioning the college presidents, Rep. Elise Stefanik equated calls for “intifada” with advocating genocide, but others say the term merely refers to a mass uprising seeking liberation from Israel. Meanwhile, many claim Israel’s invasion of Gaza, which has killed of thousands of civilians, is a genocide, while Israel’s supporters call it self-defense.

The right to engage in any of this speech would be subject to the whims and biases of whoever happens to be enforcing the ban on “genocide” advocacy. And the result would be stunted debate and discussion about the Israel-Hamas war and other highly consequential geopolitical conflicts.

Indeed. As someone pointed out, the Sixties claim that “violence is speech” has now morphed into the claim that “speech is violence”, and there aren’t many controversial issues I can think of that can’t be characterized as “hate speech”—even as hateful as calls for genocide of the Jews. And who shall be the arbiter of what speech is to be banned? That was a salient point raised by both Mill and Hitchens. After all, aren’t calls to abolish affirmative action hateful to minorities, and a form of bigotry?

But won’t calls for genocide of the Jews create a campus climate of intimidation? Is it not antisemitic action? No, I don’t think so—not so long as those calls are not used to promote imminent lawless violence (no, action a few days later doesn’t count); don’t constitute harassment against individuals; or don’t create such a climate of hostility on campus that students can’t participate in the proper mission of a university: teaching, learning, and doing research. I haven’t yet come across an example on this campus, or on other campuses, involving calls for genocide that rise to this impermissible level. But I hasten to add that at other schools there are indeed lawsuits pending arguing that various speech and actions by universities, or failure to act when a climate of hostility is in place, have created an atmosphere of antisemitism that impedes learning. Two examples are suits against the University of Pennsylvania or the University of California.

I’m not saying, then, that Universities cannot be complicit in creating a campus climate that deprives students of educational opportunities.  What I’m saying is that I’m unaware that any of that complicity involves calls for genocide of the Jews—this topic of this post.  As always, I believe that all universities should have a code of conduct like ours: one that conforms to the First Amendment as the courts have interpreted it.  So yes, if a group of, say, Students for Justice in Palestine were to call for genocide of the Jews without transgressing the legal boundaries noted above, that would be okay by me. Likewise for calls for genocide against Palestinians or African-Americans. I find such speech reprehensible and hateful, but that’s not the issue.

***********

FIRE has spread its message of free speech further, and emailed a list of other op-eds that its members wrote about the “genocide” issue. What’s below is from an announcement they sent out today:

Critics were right to blast university presidents for their hypocritical defenses of free speech. But the solution to their moral cowardice isn’t censorship — it’s free speech.We took our message everywhere: TV, radio, and our nation’s biggest newspapers. Here’s a taste of our most prominent hits:

  • HBO: FIRE President and CEO Greg Lukianoff appeared on “Real Time with Bill Maher” to discuss his and Rikki Schlott’s new book, “The Canceling of the American Mind.” But with the events in Congress last week, the conversation took many turns. Watch the interview here.
  • CNN: Executive Vice President Nico Perrino was in-studio with Jake Tapper for this insightful segment on defending free speech under the most difficult of circumstances. Then, Director of Campus Rights Advocacy Alex Morey provided expert testimony for this report on why context matters when determining what’s protected (and unprotected) speech.
  • The LA Times: Legal Director Will Creeley wrote a great op-ed with UCLA Law’s Eugene Volokh on why neither Congress nor college presidents should police free speech on campus.
  • The Boston Globe: Nico’s second big hit of the week is an op-ed covering why colleges should not use this moment to usher in a new era of restrictive speech codes.
  • The New York Post: Senior Writer and Editor Angel Eduardo and Director of Engagement and Mobilization Connor Murnane discuss Harvard’s history of squelching free speech.
  • X, formerly known as Twitter: Greg and Nico hosted a wide-ranging X Space conversation that covered the current campus crisis and fielded questions from the public. You can listen to the replay here.

Fareed Zakaria decries the movement to make academic merit less important than identity and diversity

December 11, 2023 • 11:00 am

Not too long ago, a large group of us published an article in Peter Singer’s Journal of Controversial Ideas, “In defense of merit in science“. The point was that both science and scientists should be judged by merit alone rather than by identity, equity, or other ideological considerations.  To publicize the piece and defend it against the inevitable pushback, Anna Krylov and I also wrote an op-ed in the Wall Street Journal, “The ‘hurtful’ idea of scientific merit.” (I quite like that op-ed, by the way.)

Now our cudgels have been taken up by none other than respected journalist Fareed Zakaria, and at CNN, of all places! I’m flabbergasted! (Zakaria, by the way, identifies as a secular Muslim, violating my claim that the only religion that has a credible secular version is Judaism.)

Click below to read, or watch the six-minute video at the site:

After mentioning Professorgate in Congress and then giving statistics on the effects of wokeness—the continuing decline in respect for higher education and smaller proportion of high-school students going to classes—Zakaria decries the emphasis on “other agendas”, namely DEI ones, over emphasis on merit.  In fact, as Zakaria recognizes, it is DEI itself that has led to the idea that Jews are at the top of the oppressor heap, leading to their unequal treatment in free-speech issues that became evident in the Congressional fracas. After all, it’s only when the Jews come under fire do many universities suddenly raise the flag of free speech. While it may be okay to call for gassing the Jews, it’s not okay to call for lynching African-Americans (I hasten to add that I consider both calls odious but still forms of allowable speech so long as they conform to the courts’ interpretation of the First Amendment).

Zakaria:

American universities have been neglecting excellence in order to pursue a variety of agendas — many of them clustered around diversity and inclusion. It started with the best of intentions. Colleges wanted to make sure young people of all backgrounds had access to higher education and felt comfortable on campus. But those good intentions have morphed into a dogmatic ideology and turned these universities into places where the pervasive goals are political and social engineering, not academic merit.

As the evidence produced for the recent Supreme Court case on affirmative action showed, universities have systematically downplayed the merit-based criteria for admissions in favor of racial quotas. Some universities’ response to this ruling seems to be that they will go further down this path, eliminating the requirement for any standardized test like the SAT. That move would allow them to take students with little reference to objective criteria. (Those who will suffer most will be bright students from poor backgrounds, who normally use tests like the SAT to demonstrate their qualifications.)

In the humanities, hiring for new academic positions now appears to center on the race and gender of the applicant, as well as the subject matter, which needs to be about marginalized groups. Based on conversations with dozens of academics, my impression is that today a White man studying the US presidency does not have a prayer of getting tenure at a major history department in America. Grade inflation in the humanities is rampant. At Yale College, the median grade is now an A. New subjects crop up that are really political agendas, not academic fields. You can now major in diversity, equity and inclusion at some colleges.

The ever-growing bureaucracy devoted to diversity, equity and inclusion naturally recommends that more time and energy be spent on these issues. The most obvious lack of diversity at universities, political diversity, which clearly affects their ability to analyze many issues, is not addressed, showing that these goals are not centrally related to achieving, building or sustaining excellence.

Out of this culture of diversity has grown the collection of ideas and practices that we have all now heard of — safe spaces, trigger warnings, and micro aggressions. As authors Jonathan Haidt and Greg Lukianoff have discussed, many of these colleges have instituted speech codes that make it a violation of university rules to say things that some groups might find offensive. Universities advise students not to speak, act, even dress in ways that might cause offense to minority groups.

I always considered CNN irredeemably woke, but this certainly is not that: it would be considered “hate speech” by many!

And this is the salient point, one that I hope people recognize:

With this culture of virtue signaling growing, the George Floyd protests erupted, and many universities latched on and issued statements, effectively aligning their institutions with these protests. By my memory, few took such steps even after 9/11 or during the Iraq War.

In this context, it is understandable that Jewish groups would wonder, why do safe spaces, micro aggressions, and hate speech not apply to us? If universities can take positions against free speech to make some groups feel safe, why not us? Having coddled so many student groups for so long, university administrators found themselves squirming, unable to explain why certain groups (Jews, Asians) don’t seem to count in these conversations.

Zakaria concludes, with Van Jones (watch the video), that “the point of college is to keep you physically safe but intellectually unsafe, to force you to confront ideas that you disagree with passionately.”

He then proffers gives a remedy, but it’s a bit weak on specifics:

What we saw in the House hearing this week was the inevitable result of decades of the politicization of universities. America’s top colleges are no longer seen as bastions of excellence but as partisan outfits, which means they will keep getting buffeted by these political storms as they emerge. They should abandon this long misadventure into politics, retrain their gaze on their core strengths and rebuild their reputations as centers of research and learning.

But what does that involve?  Well, here are solutions I’ve given, and I add Zakaria’s call for more political and intellectual diversity (you don’t need DEI groups to produce that, and they couldn’t anyway):

a.) Colleges should adopt the two Chicago Principles of free expression and institutional neutrality—and enforce them.

b.) Colleges should spell out where First-Amendment freedom of speech ends (e.g., no violence, no obstruction of the University’s mission, and so on). That is, there should be clear “codes of conduct” that are compatible with the courts’ interpretation of free speech and with what universities are designed for: teaching, learning, and finding the truth. This may occasionally clip the wings of free speech very slightly, as when colleges enact bans on shouting down speakers. That’s legal in public but should be banned in colleges.

c.) And I add a new principle: dismantle all DEI bureaucracy at colleges. As far as I can see, it has done no good, sucked up a lot of time and money, and created a lot of bad stuff, setting student against student and group against group. Now that affirmative action is illegal, DEI no longer has a clear mission. Complaints of bias and harassment can be handled by the normal college procedures.

USC abrogates freedom of speech: Jewish professor banned from campus for saying he hoped that all members of Hamas would be killed.

November 28, 2023 • 9:15 am

John Strauss, an economics professor at the University of Southern California (USC), has suffered one of the most ridiculous instances of professorial “cancellation” that I’ve heard of. He’s being punished by USC simply for exercising his right of free speech. (Although USC is a private school, it has a free-speech code that is close to the University of Chicago’s, and does not exempt “hate speech” so long as it conforms to the courts’ interpretation of the First Amendment.) Here’s an excerpt from their code:

Our longstanding policies also declare that the University of Southern California is committed to fostering a learning environment where free inquiry and expression are encouraged and celebrated and for which all its members share responsibility. Dissent — disagreement, a difference of opinion, or thinking differently from others — is an integral aspect of expression in higher education, whether it manifests itself in a new and differing theory in quantum mechanics, a personal disagreement with a current foreign policy, opposition to a position taken by the university itself, or by some other means.  The university is a diverse community based on free exchange of ideas and devoted to the use of reason and thought in the resolution of differences.  The university recognizes the crucial importance of preserving First Amendment rights and maintaining open communication and dialogue in the process of identifying and resolving problems which arise in the dynamics of life in a university community.

Sadly, Professor Strauss, who is Jewish, uttered a statement that, while conforming to USC’s definition of free speech, has gotten him into big trouble. Click below to read about it in the Los Angeles Times.

Most of the incident was filmed, and, indeed, Strauss was simply using his free speech. There are data!

The details from the LA Times:

Until recently, USC professor John Strauss was known mostly for his research on the economics of developing countries, with decades of fieldwork in Indonesia and China.

That changed Nov. 9, when Strauss stopped before students staging a walkout and protest calling for a cease-fire in the Gaza Strip and holding a memorial to thousands of Palestinian civilians killed in the Israel-Hamas war.

The economics professor’s interactions with students that day ended with the 72-year-old Strauss, who is Jewish, declaring: “Hamas are murderers. That’s all they are. Every one should be killed, and I hope they all are killed.”

Strauss told a group of pro-Palestinian students demonstrating on campus: “No, shame on you. You people are ignorant. Really ignorant. Hamas are murderers. That’s all they are. Every one should be killed, and I hope they all are.”

Students captured those remarks on their cellphones, almost instantly seeming to recognize a viral moment. “Can you say that for the camera?” one pressed.

Within hours, Strauss’ comments were posted online, shared and reshared on X, Instagram, Facebook and TikTok.

Here’s the full clip of the interaction with pro-Palestinian students that got Strauss in trouble. I can’t make out what he’s saying, but even the complaining students verified that what he said is what’s given above: wishing for Hamas members to all be killed:

More from the paper:

As his remarks raced across the internet, his condemnation of Hamas was often excised, leaving only his “hope” for “all” to be killed. Captions and comments online framed his demand for “every one” to be killed in myriad, at times deceptive, ways. One Instagram post shared to millions of users claimed falsely that Strauss told the students, “[I] hope you get killed….”

Some of the clip was truncated to make Strauss looks as if he were saying that all Palestinians should be killed. Here’s that clip:

He was punished by USC almost immediately after “offended” students complained to the University. Need I add that saying one thinks members of Hamas should be killed is simply freedom of speech? It can’t even be considered hate speech or incitement to violence because presumably there were no members of Hamas in attendance! Further, trying to kill all members of Hamas is in fact Israel’s precise goal in the recent war.

Within a day, an associate dean told Strauss that he was on paid administrative leave, barred from campus, and that he would no longer teach his undergraduates this semester.

Within the week, a petition demanding that USC fire Strauss for his “racist, xenophobic behavior” and comments that “promote and incite violence” had collected more than 6,500 signatures.

Meanwhile, more than 9,000 signed a counter-petition decrying USC’s treatment of Strauss as “unjust,” saying he was the victim of online misinformation, and demanding that the university reinstate him.

Hussam Ayloush, executive director of the Council on American-Islamic Relations in Los Angeles, called for USC to launch an investigation into Strauss and to take actions to protect “Muslim, Palestinian and Arab students as well as any others who are targeted by hate and bigotry.”

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Jonathan Friedman, director of free expression at PEN America, criticized USC for “a shocking overreaction,” adding in a statement, “What USC has done runs counter to the university’s obligation to foster dialogue and debate.”

By now, millions have viewed portions of Strauss’ remarks, and his statements — and USC’s response — have become a Rorschach test for a war raging 7,500 miles away.

With its political, ethnic, generational and religious fault lines, the incident has reignited intractable debates over campus censorship, academic freedom and student safety. Nearly every student who spoke to The Times for this article would do so only on condition of anonymity, citing a fear of online harassment

Need I add that that this is punishment, both investigations and barring a professor from campus—punishment for exercising free speech? That violates USC’s own policies and is something for which Strauss could sue the school.  Oh, and he stepped on a paper list of putative killed Palestinians, which he avers (and I believe) was an accident. And, at any rate, that “offense” is not why Strauss was punished:

Near a busy campus corridor, the event also included a memorial to Palestinians killed in Gaza since Oct. 7, a death toll that was then about 10,000 and that has since grown to more than 13,000, according to the Hamas-run Health Ministry. Partly enclosed by a fence, the memorial featured four long rolls of paper, at least 18 inches wide, unfurled several feet across the ground. On the paper were printed thousands of names.

Students said that when Strauss came to the demonstration, he stepped on the paper. One student said he was “desecrating the names.”

“All I did was walk through the crowd,” Strauss said, insisting he never saw the list of names but spotted the memorial later in the day after the crowd had dissipated. He acknowledged that he “might well have accidentally walked on” the list but said it was “completely unintentional.”

No one appears to have recorded the first interaction, but students say his presence caused a stir.

Yes, of course it did; he’s known, he’s Jewish, and he wished for Hamas to be killed—a sentiment that many of us probably share. The event blew up more as Muslim or pro-Palestinian students weighed in to damn Strauss. This puzzles me because pro-Palestinian students finally admitted that Strauss was referring to Hamas, not Palestinians. But it didn’t matter: once you’re offended, the cortisol keeps circulating until you get the professor fired. I’ve bolded one bit of the report below:

But as the clip circulated online, it was at times trimmed to a few seconds of Strauss uttering, “Every one should be killed.”

The captions and superimposed text in social media posts could be minimal, misleading or wrong.

“This zionist econ professor purposefully stepped on the list of martyrs before our march and came by again after & said ‘everyone should be killed,’” a student group posted on Instagram.

Another post on Instagram, shared by @CravingPalestine and activist Shaun King, among others, said Strauss “threatened these students ‘hope you get killed and I hope they all are (*Gaza)” during a campus rally for Gaza.” That post has been viewed more than 3.2 million times.

At one point, the group Trojans for Palestine clarified on Instagram that Strauss “did not say he wanted Palestinians to be killed, but Hamas,” according to screenshots of the post.

Then, the group appeared to walk it back: “With his hateful rhetoric, you can draw your own conclusion about whether or not he wished death upon just Hamas or civilians as well.”

Within hours of Strauss’ recorded comments, USC’s Muslim Student Union issued a statement saying that Strauss was “repeatedly calling for the murder of the entirety of Palestine” and expressing “a desire for the death of those supporting Palestine.”

What we see here is a group of The Offended admitting that Strauss was talking about Hamas, but then adding, in a reprehensible bit of rhetoric, “you can draw your own conclusions”. But there’s a video, and the video, even according to the Trojans for Palestine, shows that Strauss was talking about Hamas. The conclusion to be drawn is simply that Trojans for Palestine are trying to get a Jewish professor punished for wishing for the extermination of Hamas.

Since then, USC has backed off a bit: it now allows Strauss to teach undergrads, too, but only remotely. He is still banned from campus. And now he is, as expected, being deluged with hate mail (this is of course legal unless that hate mail threatens him).  Complaints have also been fired against him by USC’s “equity, diversity, and Title IX office”. For what, I wonder? Haven’t the administrators viewed the “incriminating” video? If they had acted properly, they would have seen the clip and dismissed the case as in conformity with the University’s freedom of speech policy. But they didn’t.

And so the Academic Freedom Alliance has provided Strauss with a lawyer, and FIRE has written a letter to Carol Folt, USC’s President, which includes the following paragraphs:

Neither the First Amendment nor USC’s policies shield Strauss from every consequence of his expression—including criticism by students, faculty, or the broader community. Criticism is
“more speech,” the remedy to offensive expression the First Amendment prefers to censorship.  But university policies that invoke the First Amendment limit the types of consequences that may be imposed on protected expression, and who may impose them.

Restricting Strauss to teaching remotely the rest of the semester is precisely the type of consequence for constitutionally protected expression that USC’s First Amendment– mirroring Faculty Handbook plainly prohibits, because such a restriction is likely to chill future faculty speech. The question is not whether formal punishment is meted out, but whether the institution’s actions “would chill or silence a person of ordinary firmness from future [expressive] activities[.]”  Courts have explicitly recognized consequences similar to those imposed on Strauss, such as changes to working conditions or restricting access to the institution’s facilities as sufficiently chilling speech. Whether the university labels the restriction “administrative leave” is irrelevant to the analysis: USC violated Strauss’s free speech rights by imposing the remote–teaching restriction in response to his protected expression.

They’re right and USC is acting shamefully. It doesn’t matter what Strauss said so long as it conformed to protected First Amendment speech, which it surely did. And I’d be just a peeved if he walked by a bunch of pro-Israel students and said that Israeli West Bank settlers who attacked Palestinians should all be killed.

USC has a history of both administrative and student anti-Israel or antisemitic actions (see the open letters here, here, here, and here). While some of this is protected speech, and other letters call for the University to violate institutional neutrality (which it does NOT have anyway), these incidents have, in toto, created a climate at the University in which Jewish students feel endangered.  And if that impedes the function of the University, which is to teach such students and not chill their speech, the atmosphere needs to be addressed. I don’t know what to do about that without asking for violations of the First Amendment or of the principle of institutional neutrality (USC doesn’t have it, but all schools should). Still, the one thing that USC can do is not cancel professors who criticize Hamas.

WHAT YOU CAN DO: If you think Dr. Strauss has been unfairly treated, you can send an email to USC here via the FIRE website. I did, and I wrote my own email although there’s a boilerplate one on the site.

h/t: Anna

The Freedom From Religion Foundation supports the “right” of transgender women to compete in women’s sports, claiming that it’s a church/state issue

April 2, 2023 • 11:15 am

I’ll begin this post with my introduction to the same issue last November:

I’ve always been a fan of and a member of the Freedom from Religion Foundation (FFRF). I am on their Honorary Board of Directors, and in 2011 received their “Emperor Has No Clothes Award”, which as they say is “reserved for public figures who take on the fabled role of the little child in the Hans Christian Andersen fairy tale and ‘tell it like it is’—about religion.” I’ve was very honored with their recognition, and humbled to be added to the many people I admire who have also gotten the gold statue of the naked emperor—a statue made by the same company that makes the Oscars.

Lately, however, the FFRF has crept out of its bailiwick of enforcing separation of church from state, and is, like the ACLU and the SPLC, engaged in matters of social justice. Well, that’s their call, and I wouldn’t beef about it unless I thought they’ve undertaken campaigns that are unwise.

Well, the FFRF has, and has gone to ground on the same issue where the ACLU went astray: transgender issues in sports. I hasten to add again that I think that with almost no exceptions, transgender people should have all the rights, privileges, and moral status as cisgender folks. I’m happy to call them by their chosen sex, treat them as members of their chosen sex, and use their chosen pronouns.

The few exceptions, which I’ve written about in detail, include sports participation (particularly trans women competing against biological women), rape counseling, and inhabiting sex-segregated prisons. There are good reasons for these exceptions, and the reasons all involve fairness to biological women—fairness that can be abrogated by considering transsexual women as fully equivalent to biological women.

The occasion for that long post was the FFRF’s signing an amicus brief supporting a challenge to an Indiana law that prohibited trans women from competing against biological women in sports. The law prohibited trans women in all grades from K-12 (roughly up to age 18) from this participation.  The suit involved a ten-year-old trans girl who sought to compete on a girls team, which isn’t in itself nearly as unfair as a trans woman who’s gone through male puberty doing the same thing (see below). But the FFRF sought to overturn the entire law, which would allow biological men, self identified as women, to compete against biological women even if the trans women had undergone no medical treatment, including puberty blockers, hormones, or surgery.

As I’ve written many times before, and won’t reprise here in detail (see data cited in this post and the addendum below), there’s plenty of evidence that trans women who have gone through puberty have significant athletic advantages over biological women—advantages in musculature, grip strength, body size, bone density, and so on—and these advantages don’t disappear even after several years of hormone treatment. That’s why the Olympics has bailed on its previous hormone-titer criterion for competing in women’s events, and why the International Athletics Council (IAC), which regulates participation in international track and field events, recently barred all transgender women from competing in elite events. In the latter case, the IAC explicitly prioritized “fairness and the integrity” of female competition over “inclusion”. To my mind, that’s the right decision, and will remain the right decision until we find ways to level the playing field for transgender women who want to compete athletically against biological women. (Transgender men are rarely an issue in these decisions since they have an athletic disadvantage against biological men.)

At the time, I didn’t write to the FFRF, but let them know of my objections to the sports issue (not the issue of transgender rights in general) on my blog post.  Apparently a lot of FFRF members objected, too, and I got emails from some of them. Some members even resigned from the organization and removed any bequests to the FFRF.

I have stayed on as an honorary director, even after the FFRF dug in its heels on the issue by claiming that trans rights, including the ‘right’ of transgender women to compete in sports against biological women, was a church/state issue. Why a First Amendment issue? Because many religious Christian nationalist groups, says the FFRF, fight against trans rights, and so all trans rights thereby become church/state issues: the bailiwick of the FFRF. You can see how many issues suddenly become church/state issues because right-wing Christians take different stands on them than do secularists or leftists.

I believe the pushback against the FFRF’s stand from some members led the organization to get Patrick Elliott, the FFRF’s senior litigation council, to write the following article that appeared in both the paper and online issues of the organization’s newsletter, Freethought Today. Click to read:

Elliott’s article mentions sports several times, and yes, he’s right: some 0n the religious right are indeed using sports to attack trans rights in general. As he wrote:

We are familiar with this playbook. The Religious Right finds issues to push their religious agenda, but it doesn’t come out and say “religion!” We see this with issues such as abortion, gay marriage and, now, bans of LGBTQ books. Religion-minded groups and lawmakers are fighting a religious fight but they have wised up and are not pointing to the bible as the source of their concern. Instead, they feign concern for competitiveness in girls sports (why have they never cared before?) and the “appropriateness” of school library materials.

But there are plenty of people NOT on the religious right—liberals like me and other members of the FFRF—who firmly believe that trans people should be accorded almost every right enjoyed by non-trans people, but with a few exceptions, including the “right” to compete in athletics against biological women, the “right” to be rape counselors for biological women, and the “right” to be put in a women’s prison if you identify as a woman.  Several colleagues and I (all liberals) wrote to the FFRF laying out our objections, and received a polite letter back from co-Presidents Dan Barker and Annie Laurie Gaylor, basically telling us, “Thanks for the advice, but this is a church/state issue, we’re sticking to our guns, and the sports thing isn’t that big a deal anyway.”

So it goes. But I guess the FFRF is still receiving complaints from members about this one issue, as it’s just put up another piece at Freethought Now—this time by Kat Grant, an Equal Justice Works Fellow at the FFRF. It’s pretty similar to Elliott’s piece above, defending the “right” of secondary-school trans women to compete in athletics against biological issues. After all, it’s a church-state issue!

Click to read:

Again, I have no complaint about most of what Kat Grant says, but there’s one bit about sports that the FFRF is still pushing (emphasis below is mine):

Sexual assault and domestic violence advocates have debunked the “bathroom predator myth” for years, noting that transgender people are more likely to be victims of violent assaults in public bathrooms, rather than perpetrators. Similarly, claims that transgender people are a danger to girls’ and women’s sports are unfounded. Many state school athletic associations have had policies allowing transgender children to play on teams that align with their gender identity for years before they started making headlines, and the Olympics have had trans-inclusive policies since 2004. Yet in competitions where transgender girls and cisgender girls compete together, there is no consistent history of transgender athletes dominating, because there is no consistent correlation between testosterone levels and athletic performance.

The bit in bold is deeply misleading, and in fact mostly wrong.  Yes, there were no rules a while back because there were very few trans women seeking to compete athletically against biological women. That number has now grown strongly, and, contrary to Grant, there is a consistent history of “transgender athletes dominating” when they, as trans women, compete against biological women. It’s almost humorous that Grant distorts the data this way.

The claim that there is no “consistent correlation”between testosterone levels and athletic performance” may be true if you look only within biological women, but if you compare men or trans women with biological women, there certainly is a correlation across the groups! That is in fact exactly why the Olympics used to use testosterone levels as a criterion for participation in women’s events: there was an upper limit. (As I said, in the face of the data that even setting an upper testosterone level doesn’t “level the playing field”, the Olympics has thrown up its hands and bailed on the whole issue, saying that each sport has to make its own criteria.)  And so Grant is also wrong in her claim about the Olympics.

The whole paragraph is misleading, and somebody at the FFRF should be fact-checking this.

The upshot? Well, we’re seeing mission creep in the FFRF, which used to attack more blatant church-state issues like praying in schools or legislatures. (By the way, why isn’t the FFRF making gun control a huge issue given that, like attacks on trans rights, it’s largely the religious who oppose gun control?)

And although trans rights are indeed attacked by Christian nationalists, the sports, rape, and jail issues for trans women are of concern to nonreligious people like me and many others, including J.K. Rowling (you might have heard the podcast about her on the Free Press).  And if the FFRF is resolute in taking on trans rights, they should stop going down the Chase Strangio road of claiming that any biological male who merely claims to identify as a women, regardless of hormone treatment or surgery, should be recognized as a woman and enjoy all the rights of biological women.

I’ll finish by saying something that I think most rational people would agree with, but apparently not the FFRF:

It is unfair, and should not be legal, for a biological male who identifies as a woman—and has had no surgery or hormone treatment—to compete in track and field events against biological women.

Agreed, right? If so, you’re opposed to the views of the FFRF.

What mystifies me about all this is that the FFRF has always had a strong feminist slant, beginning with its founder Anne Nicol Gaylor and continuing through today. Many of their stands help defend the rights of women, which is great. But it seems that in this case they’re throwing biological women under the bus to defend the “rights” of biological men to compete in women’s athletics—when those men, deemed “trans women” have a palpable advantage in size, strength, and athletic ability.

In other words, the FFRF is prioritizing a declared trans “right” over the rights of women. And that is wrong. This is another example of MacPherson’s Rule, named after reader Diana, which states that “whenever two claimed rights clash, and one of the rights is women’s rights, that is the one that always loses.”

I’ve always been a strong supporter of the FFRF: it’s my very favorite secularist/humanist organization. But this time they’ve gone too far, and have refused to take what most of us would see as a reasonable stand on this issue. I will share this post with them, but I have little hope that they will modify their stand on trans rights so that they don’t trample on women’s rights.

__________________

UPDATE: Here’s a relatively new paper showing that, on average, even when you compare men and women with equal muscle size, the men are generally stronger and perform better in weightlifting.

Creationism is back: a pro-ID bill passes the West Virginia Senate

February 27, 2023 • 11:00 am

CORRECTION:  This article mistakenly said the bill was in Wyoming. It’s really in West Virginia.

**************

It’s always been my fear, since the U.S. Supreme Court became hyperconservative, that they would rule to allow creationism to be taught in the public schools. It’s been effectively outlawed, but there’s one loophole to be closed: a Supreme Court ruling about whether Intelligent Design (“ID,” sometimes described as “creationism in a cheap tuxedo”) can be taught in the schools along with evolution.

There are three relevant court cases, two of which involved the Supreme Court.

Epperson v. Arkansas (1968). In this landmark case, the Supreme Court ruled unanimously that an Arkansas state law prohibiting the teaching of evolution was unconstitutional, for it violated the First Amendment by advancing religion.

Edwards v. Aguillard (1987). Another landmark case. This time the Supreme Court ruled 7-2 (Scalia and Rehnquist dissented) that a Louisiana “equal time” law, requiring that creationism be taught whenever evolution was, was unconstitutional. The majority again cited First Amendment grounds: creationism promoted a particular religious view.

Kitzmiller v. Dover Area School District (2005). Many of us remember this one. A federal judge in Pennsylvania, the late John E. Jones III, ruled on a case in which 11 parents in the city of Dover objected to a Dover School District policy requiring that whenever evolution was taught, Intelligent Design must also be taught, and stipulated the odious textbook Of Pandas and People as the ID text. I wrote my first article for The New Republic about this case, ostensibly a review of the ID text but really a critique of ID. It’s nearly disappeared online but is archived here, and I’ll be glad to send anyone a lovely pdf of the original article.

At any rate, after a six-week bench trial in which scientists and philosophers like Ken Miller, Barbara Forrest, and Robert Pennock appeared, while ID advocates like Michael Behe crumpled on the stand, Jones (a George W Bush appointee) issued a 139-page ruling asserting that ID was “not science” and forbidding the district’s new proposal. Judge Jones also chastised the school district for wasting time and money on an unwinnable case (I believe the school district, which had to pay court costs and attorney’s fees for the plaintiffs, was out over a million dollars).  Two notable statements from Jones’s decision. The bolding is mine, but those four words were the headlines in many newspapers:

After a searching review of the record and applicable caselaw, we find that while ID arguments may be true, a proposition on which the Court takes no position, ID is not science. We find that ID fails on three different levels, any one of which is sufficient to preclude a determination that ID is science. They are: (1) ID violates the centuries-old ground rules of science by invoking and permitting supernatural causation; (2) the argument of irreducible complexity, central to ID, employs the same flawed and illogical contrived dualism that doomed creation science in the 1980’s; and (3) ID’s negative attacks on evolution have been refuted by the scientific community. As we will discuss in more detail below, it is additionally important to note that ID has failed to gain acceptance in the scientific community, it has not generated peer-reviewed publications, nor has it been the subject of testing and research.

. . . To be sure, Darwin’s theory of evolution is imperfect. However, the fact that a scientific theory cannot yet render an explanation on every point should not be used as a pretext to thrust an untestable alternative hypothesis grounded in religion into the science classroom or to misrepresent well-established scientific propositions.

Since the Kitzmiller case, no state or school district has dared pass a “teach ID” law, knowing that it would likely be overturned and cost the state/school a lot of dosh.  But note that this federal case wasn’t appealed to the Supreme Court. Had it been at that time, Jones’s decision would have been affirmed. But times have changed now, and it’s possible that the new right-wing court could allow the teaching of ID on two grounds:

a. It could imply nullify Edwards v. Aguillard as it nullified Roe v. Wade, or

b. It could decide that ID is not creationism (or a form of religion) but actual science, and thus could be taught in schools.

Of course any fool who has studied ID knows that it is gussied-up creationism. It has not permeated the biology community (despite their promises it would), and clearly grew from religious roots. But who knows that this Supreme Court will do?

And so we come to the latest nightmare: the passing of a pro-ID bill by the West Virginia Senate. The link in the previous sentence goes to our old friend The Sensuous Curmudgeon, but you can also read an account at the National Center for Science Education (NCSE). Here’s the bill that was proposed, which doesn’t require teachers to teach ID but allows them to do so if they wish (red rectangle is mine):

The bill passed by a vote of 27-6, which shows you how ignorant West Virginia lawmakers are (or, perhaps, savvy but disdainful of science). It hasn’t yet been

Here’s the NCSE’s take:

West Virginia’s Senate Bill 619 — which would, if enacted, allow “[t]eachers in public schools, including public charter schools, that include any one or more of grades Kindergarten through 12, [to] teach intelligent design as a theory of how the universe and/or humanity came to exist” — passed the Senate on a 27 to 6 vote on February 25, 2023, according (PDF) to the legislature’s website.

Before the bill passed, Dale Lee, President of the West Virginia Education Association, described it as a “solution in search of a problem,” according to the Bluefield Daily Telegraph (February 25, 2023). He added, “We teach WV College and Career readiness standards” — which, like all state science standards across the country, include evolution but not creationism (including “intelligent design”).

A columnist in Charleston’s MetroNews (February 24, 2023) previously, if unsuccessfully, reminded the legislature about the case law establishing the unconstitutionality of teaching creationism in the public schools, including Kitzmiller v. Dover and Edwards v. Aguillard, explaining that the government is not allowed “to instruct school children on a faith-based creation story and pass it off as science.”

The bill still hasn’t passed the state House, and even then must be signed by the governor to become law. If it does, there should be an appeal to the federal courts, which could wind up in the Supreme Court. And that could become biology’s biggest setback since John Scopes was convicted in 1925.

h/t: Steve

Ira Glasser: Why we need freedom of speech, even if it’s offensive and hateful

January 23, 2023 • 9:20 am

The University of Chicago and some of our faculty are pondering creating an orientation module on free speech for incoming students—a module that’s all too rare but essential, for “progressive” students are beginning to oppose free speech and the First Amendment since some speech is seen as “harmful”, “offensive”, or even “violent.”

I wrote to a few people involved in our campus endeavor and told them this:

This short article by Ira Glasser (former head of the ACLU) is the best concise explanation of why we need the First Amendment that I’ve ever read. It carefully explains why all speech—including “hate speech”–must be protected. Naturally, it appeared in a right-leaning site, Spiked, but that makes no difference.
Were I to construct an orientation for first-year students here, I’d have them read his piece (it also explains why all progress in social justice has required freedom of speech):
https://www.spiked-online.com/2023/01/21/why-we-must-fight-for-the-right-to-hate/
. . . and also watch Christopher Hitchens’s 20-minute defense of free speech; a tour de force of rhetoric:
https://www.youtube.com/watch?v=4Z2uzEM0ugY
Even if you already know all the reasons why free speech—with the few exceptions carved out by the court—is in the Bill of Rights, you should still read this article by the estimable Ira Glasser, head of the American Civil Liberties Union from 1978-2001. I’ve written about him several times, including this interview as well as a blurb for a very good movie about his career, “Mighty Ira.“

Now Glasser has just published a very good piece in Spiked that I highlighted above (naturally it’s on a right-leaning site, for the Progressive Left is not so keen on free speech because it can include “hate speech”). It’s hard to get a defense of free speech published in a liberal place.

Glasser’s message is simple and compelling; click on the screenshot to read it:

The parts of the article essential for a modern student’s introduction to free speech is Glasser’s explanation of not only why “hate speech” must be allowed, but also why progressive social justice of the good type requires freedom of speech.

I’ll give a few excerpts. I hope college administrators can and will use this piece to introduce students to the purpose and meaning of the First Amendment.

This describes why the ACLU defended the racist George Wallace’s right to speak in New York City after the mayor had banned him.

For example, the First Amendment protects the right to free speech and assembly by barring the government from abridging such rights. That is how I was able to stop the mayor of New York from banning George Wallace from speaking in 1968. Why did I do it? Because what if George Wallace had been elected? He had already been elected as governor of Alabama. He was trying to get elected as president (and he had considerable support). If he had gained political power, he would not have hesitated to suppress or punish my speech, or the speech of others I supported.

So I needed an insurance policy. I needed a legally supreme rule that barred him from curbing my speech in case he gained political power. And in order to do that, I needed to stop the then mayor of New York, a liberal whom I supported, from using his power to silence Wallace, a reactionary whom I feared. The two were linked because the antagonist of liberty is always power. And because power is fickle and unpredictable.

In a democracy, you can never know who will have power. So all power must be limited in order to protect liberty, including speech. That’s what liberty is: a legal limit on democratic power. The right to freedom of speech is guaranteed only by limiting the power of any government to abridge it. By defending George Wallace’s right to speak when he doesn’t have power, you insure against his curbing your right to speak should he gain power.

On the two-edged sword of bannng speech:

When Martin Luther King, Jr and his colleagues marched, white and black, hand in hand, in America’s deep South, the majority of residents there found King’s vision of an integrated society deeply offensive and tried, on that ground, to ban his speech.

We may find the two examples vastly different. They are vastly different. But if being offensive was allowed to justify banning speech, and if what is offensive were decided by majority vote, then civil-rights marchers would have been banned in Alabama, just as neo-Nazi marchers would have been banned in Illinois.

Could the two cases have been separated, and decided differently? Consider this: those same neo-Nazi marchers in Skokie were also banned from demonstrating in a park in Chicago, along with rival demonstrators from the Martin Luther King, Jr Association, a civil-rights group. Both were banned, based on the same law. And both bans were struck down by the First Amendment, which bars the government from enforcing such a law. The rights of both groups were thus joined together, even as their goals were diametrically opposed.

There was – indeed there is – no way around that. That is why the price of permitting King to speak in Alabama was to allow Wallace to speak in New York. And the cost of banning Wallace from speaking in New York would have been to allow Alabama to ban King from speaking in Alabama.

Finally, the part that may stir the thought of “progressives” who want to ban offensive speech:

What progressives say they care about most is social justice. And for many progressives, free speech and social justice seem to be antagonists. How, they ask, does defending the right of people to advocate bigotry advance the cause of social justice? In their view, prohibiting speech because its content is bigoted or hateful would seem to advance social justice.

Such speech is a barrier to social justice, they say. Permitting it makes it harder to eradicate the layers of prejudice against women and people of colour that has resulted, and still results, in invidious discrimination and subjugation.

I certainly have no quarrel with the passion to end such discrimination and subjugation. I have spent most of my adult life fighting to do just that, and I believe that although much progress has been made, we are still far away from the day when we can declare that fight definitively won. So opposing the content of racist speech remains vital. But believing that, in order to advance social justice, it is necessary to give the government the power to ban speech is self-defeating. Giving the government this power harms social justice. That’s because, in practice, social justice depends on free speech, and always has.

Historically, in the United States, every fight for social justice began with free speech, depending on speech to initiate and sustain the movement to right wrongs. In the early years of the 20th century, for example, the nascent labour movement critically required (and did not often enjoy) the right to meet, to leaflet, to demonstrate and to picket in order to convert workers’ powerlessness into success against oppressive employers.

Also during the early 20th century, the movement to end the lynching of black people, led by courageous advocates like Ida B Wells, totally depended upon freedom of speech and the right to publish. Without these freedoms, it would not have been able to spread the word about the epidemic of lynchings in the South and to gather and build opposition to it.

Or take the case of Margaret Sanger, the founder of Planned Parenthood. In 1916, she was arrested in New York City nearly every week for distributing informational leaflets on birth control to women victimised and, yes, effectively enslaved by unwanted pregnancies. The beginning of the reproductive-rights movement required freedom of speech the way a new plant requires water and sunlight.

And of course, in our own time, the civil-rights movement could not have ended legalised racial subjugation without freedom of speech. The First Amendment protected the early efforts of activists to call attention to the abuses of skin-colour exclusions and build the support needed to end them. In 1955, for example, Rosa Parks sat down on a seat reserved for whites on a Montgomery, Alabama bus, and a then unknown young Baptist minister named Martin Luther King, Jr stood up to support her, by organising a boycott of those buses. None of that would have been possible without the protection of the First Amendment.

If this doesn’t convince people to adhere to First Amendment principles, on or off campus, well, there’s no hope for them.

Here’s a 7-minute clip of Mighty Ira defending freedom of speech on Bill Maher’s show, as well as criticizing the modern ACLU for preferring to defend speech that isn’t “harmful”. The ACLU has undergone a severe erosion of its founding principles since Ira was at the helm:

The Popehat on Free Speech

December 27, 2022 • 10:45 am

I didn’t know that “Popehat” (real name Ken White, a criminal defense attorney and author) has a Substack site, but then again, who doesn’t these days? What makes this all so annoying is that there’s no way to know who has such sites and who doesn’t.

At any rate, I use to read Popehat’s site for free-speech commentary, and now you can go to his site, “The Popehat Report,” which appears to be free. I can’t remember how I found the two articles below, but they’re both worth reading, and you can do that by clicking on the screenshot. I’ll give a brief summary of each.

The article above was written because the quotation in the title is often used to justify new ways to shut down First Amendment speech. In it, White makes two points. First, the exceptions to the First Amendment are well known and haven’t changed in years. Second, the Supreme Court, in its last modification of the First Amendment, said clearly that further changes are unlikely.  In other words, there will be no future amendment that bars hate speech—the subject of much debate these days.

White:

Let’s review the exceptions to government-protected speech, first through the cases and then through a summary:

The Supreme Court has repeatedly listed the First Amendment exceptions. In 2010, in a very important but not particularly well known case called United States v. Stevens, the Supreme Court offered one of its periodic summaries:

“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382–383. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring in judgment)—including obscenity, Roth v. United States, 354 U. S. 476, 483 (1957), defamation, Beauharnais v. Illinois, 343 U. S. 250, 254–255 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976), incitement, Brandenburg v. Ohio, 395 U. S. 444, 447–449 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949)—are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U. S. 568, 571–572 (1942).

So, there you have it: obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. Throw in true threats – which was left out of this list for some reason – and child pornography, and you’ve got the categories. Note that the Court specifically identifies them as well-known and historic, not as in flux.

I was going to add, “What about false advertising?”, but I suspect that it falls under the aegis of “fraud”. Note, too, that “incitement” is not flexible, for it’s been specified this way:

Incitement is a First Amendment exception. But incitement means “speech that is intended, and likely, to cause imminent lawless action.” All of those words mean things, things defined by decades of court decisions. They don’t mean whatever you want them to mean — they specifically don’t mean “saying things that are bad for America on TV.” Might the courts gradually develop their understanding of one of these words – for instance, by developing a broader understanding of “imminence” based on an internet culture? Yes, over time, through a familiar process. But the point is that you must engage the existing law on what “incitement” means to be accurate — you can’t just declare it to mean whatever you want, and expect that to matter in court. The Supreme Court has been saying for almost a century that First Amendment exceptions are “well-defined and narrowly limited.” The fact that the words in the names of the exceptions — like “incitement,” or “threat” — have flexible colloquial meanings does not signify that the legal meaning of those exceptions is flexible. It isn’t.

Note that “fighting words” or “hate speech” do not constitute incitement.  As far as creating new categories, in the U.S. v. Stevens case, the government asked the Supreme Court to carve out a new exception to the First Amendment that prohibits depictions of animal cruelty. The government’s justification was that the court had already created an exception in the form of banning child pornography, so why not another?.  But the Court responded that it didn’t really create an exception, but merely codified what was already a crime—child abuse, seen as inherent in child pornography. The court then said, in an 8-1 decision, that it couldn’t envision any new exceptions:

Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that “depictions of animal cruelty” is among them.

As for why this matters, it’s because of what I said above: courts are always under pressure to tighten the rules of free speech (“hate speech” is the latest proposed restriction), but that won’t happen. As White says,

[This] matters because it’s good for Americans to know, and understand, our civil rights and the powers and limitations of our government. We’re bitterly divided as a nation. Much speech is controversial, much speech is despised by someone. We’re under constant pressure to accept new limits on speech. It’s good to argue about these things. But the argument should be reality-based. “The First Amendment isn’t absolute,” used as a justification for new exceptions, and untethered from the law, isn’t reality-based.

And read this one, too (both are fairly short):

 

Here White distinguishes between three construals of “free speech”, which I’ll characterize in my own words (quotes from White are indented).

a.) Free Speech Rights (“FSR”). These are the rights conferred by the First Amendment—that is, all the speech that isn’t prohibited by law (see above). White emphasizes that the exceptions are likely to be pretty much set in stone and will not be modified to include “hate speech”. He argues—and I agree—that knowing some of the history of the courts’ construal of free speech is useful in keeping your arguments on the rails. And it’s useful to be mindful of the philosophy behind FSR, as outlined in the Stevens case ruling mentioned above:

The First Amendment ’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).

You can’t just argue on utilitarian grounds, then, that new types of speech should be considered violations. The First Amendment is based on deontological principles, not utilitarian ones.

b.) Free Speech Culture (“FSC”). This is the principle that, regardless of the First Amendment, speech venues such as private universities and widespread social-media outfits like Twitter and Facebook would be best served by adhering to First Amendment principles even if they’re not obliged to do so. This is is a utilitarian application of FSR:

The next category is “Free Speech Culture,” or “FSC,” sometimes called “free speech values” or “free speech principles.” An appeal to FSC is based on history, philosophy, and political science. It presumes that it’s a social good to have wide-ranging, robust, uninhibited debate on important issues, though it might reach that conclusion by different roads. Some believe that a “marketplace of ideas” inevitably produces the conclusions best for society, some believe that all speech has inherent value, and some (like me) believe that as a matter of humility and consciousness of our limits we should be should be careful deciding that we are so clearly right that contrary ideas shouldn’t be heard. Ultimately FSC is utilitarian — we use it to debate how we ought to act collectively for the healthiest society and the optimal pursuit of knowledge.

Here’s where we debate not whether a private school has a right to disinvite a controversial speaker, but whether as a matter of academic culture it should. Here’s where most debates about “cancel culture” will fall. Carefully separating out the legal “may” from the philosophical “should” helps clarify the argument.

As White notes, FSC can contradict FSR, as when students shout down a speaker. In most places they have the right to do so, just as the speaker has a right to speak, but application of FSC would mandate that the students shut up, let the speaker talk, and then protest either in the Q&A section or by offering non-disruptive counterspeech. That’s what White argues, and again I agree.

c.) Speech Decency (“SD”).  This is speech that truly is hateful, and while it is legal, and even allowed under FSR and FSC, can still be reprehensible—reprehensible enough that the speaker should be called out on decency grounds. White gives one example involving the n-word:

Finally, some debates about speech are about human decency — Speech Decency, or “SD.” I think sometimes that familiar phrase “hate speech is not free speech” is an appeal to SD. It’s a way of saying that there’s an idealized set of speech that may be controversial or disagreeable but ultimately is not cruel and contemptible, and that racist speech is outside of that set.

This is a perfectly legitimate debate. It’s fine to say that using a racial epithet is usually protected by FSR, that in some circumstances it ought to be protected as a matter of FSC (for instance, in allowing “Huckleberry Finn” to be taught to high school children notwithstanding its use of epithets), and that people who use it to belittle and demean ought to be called out as a matter of SD.

Once again, clarity about values helps illuminate the different rights and different interests in play.

In this case the speaker’s intent is usually vital in determining whether he/she has violated SD and should be called out. Using the n-word didactically, as when teaching Huckleberry Finn, or, as Don McNeil of the NYT did, asking a question about what somebody else said (this led to his firing), is not reprehensible and should not be offensive.  In such cases the language doesn’t violate any of the three construals of speech given above.

Another example is “hate speech”, which can be truly hateful rather than offensive. I would defend your legal right to call me a “Dirty Jew who should be gassed”, and even defend the idea that you should be able to say that on Twitter. But I would find it reprehensible, hateful, and deem you a bigot and an anti-Semite.

White justifies parsing speech into the three distinctions mentioned above, and I agree:

Debates that clearly identify FSR, FSC, and SD are useful and sometimes even illuminating. They have the potential to teach people about their civil rights and about American government. They can persuade our fellow citizens about how to balance different interests, or at least clarify how we reach our personal outcomes on difficult social and cultural questions.

Debates that sloppily conflate FSR, FSC, and SD are counterproductive. They tend to misinform people about American civil rights, especially if the listener is not already sophisticated on the subject. They produce some of the most persistent delusions of free speech discourse — like the imagined right not to be offended or the supposed right not to be criticized.