Free speech is under attack from all directions these days, including from a lot of colleges and now the media, or at least in an op-ed on CNN.
I didn’t know CNN did editorials or op-eds, which shows that I haven’t been paying attention. And of course they have a right to do that, so long as they make clear that it’s one person’s view and not the website’s. But I would have expected better from CNN than this Authoritarian Leftist call for censorship of “hate speech” and other “speech that incites immediate violence,” even when it doesn’t.
Here’s the editorial by Noah Berlatsky, self-identified as a “freelance writer and editor.” (Click on screenshot to see it.)
Berlatsky starts his “Nazi” screed by calling attention to this infamous “Nazi salute” picture taken by a photographer of a bunch of guys attending their high-school senior prom in Baraboo, Wisconsin:
Yes, it looks like the famous Nazi salute, and has been circulated as such by white-supremacist groups all over the place, but are the kids really thinking, “Sieg, heil!” It’s not at all clear. The Internet and the school (which decided not to punish anyone), is outraged, although the photographer says he simply asked people to wave goodbye to their parents (the senior prom, a dance, marks the end of high school). I’m not sure why the photographer would ask a bunch of people to give a Nazi salute, or raise their arms to mimic it, but his explanation is nevertheless somewhat credible, and until we learn that he’s a secret Nazi sympathizer, or that all those boys are being white supremacists, I think we should let this one go.
As CNN reports, the school did let it go:
In a recent letter to parents and the community, Baraboo School District Administrator Lori M. Mueller said the district made the decision after a 10-day review. She said district officials are unclear about some key details surrounding the photograph despite their efforts.
“As previously stated, we cannot know the intentions in the hearts of those who were involved. Moreover, because of students’ First Amendment rights, the district is not in a position to punish the students for their actions,” Mueller said in the letter, which Baraboo School Board of Education President Kevin Vodak shared with CNN.
CNN affiliate WISN previously identified the photographer as Pete Gust. He told the station critics took the photo out of context.
. . . . Gust said he asked the students to wave goodbye to their parents. “There was no Nazi salute,” he said.
Convinced that this was a Nazi salute mistakenly protected by the First Amendment, Berlatsky calls for punishment of all the students, and then issues his real beef: these guys got off because they are white, using the mantra of “it was free speech” (it doesn’t need to be defended that way if it was a wave), while black students wouldn’t get off:
Perhaps Gust was just confused, but the mix of explanations (“it’s free speech”; “they were just waving goodbye”; “who knows what’s in their hearts”) suggests that the issue is less any one principle, and more a general desire to exculpate students. Black students apparently need to be disciplined rigorously and constantly in schools across the US, but white students are good kids who deserve protection, even when (especially when?) they make the sign for white power.
The school could have mandated detention or banned students from school activities for a time. Gust should be reprimanded by the school. The school has said it’s going to put in place “restorative practices,” which is good. But if there’s no sanction of any kind, how seriously will students view those efforts?
And so we get the usual reason for attacking free speech: it disempowers minorities, who are said to be unable to answer it or incapable of their own counter-speech, and free speech can incite hatred and violence (he raises the issue of Heather Heying’s murder in Charlottesville, in which the car-driver is being tried for murder). We already have laws that ban speech if it incites immediate violence, and in Charlottesville that was not the case, as the white supremacist speakers didn’t urge their followers to go out and kill Lefties.
Berlatsky proceeds to make a number of misleading statements, which include the following (I haven’t the heart to repeat my refutations again, but you’ll know them). For example, this is wrong is a lot of different ways:
Speech by white people is often seen as unobjectionable, no matter what its content; who you are is more important than what you say. Defending the speech of white kids doesn’t necessarily protect the speech of marginalized people, just as All Lives Matter in a racist society does not in fact mean that Black Lives Matter. Racism is built on inequality and disproportion; you can’t confront it by pretending that we’re all in this together when we manifestly are not.
In fact, in practice free speech for Nazis is often itself a threat to free speech for everyone else, because Nazis use their freedom to violently suppress their opponents. Giving free speech to fascists to rally can reasonably be expected to curtail the free speech rights of other people, which means that organizations like the ACLU, and judges, need to balance interests, rather than just treating free speech for fascists as in itself increasing free speech.
Berlatsky is using his own free speech to attack the behavior of white people; allowing speech by one group doesn’t endanger the speech of another; and free speech for Nazis, so long as it doesn’t produce “clear and present danger,” doesn’t curtail anybody else’s free speech. We can see this this from the regular counter-demonstrations that occur when Nazis or white supremacists appear, something that happened in Charlottesville. Berlatsky’s objection is that “hate speech” causes physical danger to others and prevents them from speaking. This is not true with the exception of the kind of speech that’s already outlawed. Berlatsky adds that “Fields [Heyer’s killer] used his freedom to make sure that Heather Heyer would never speak again.” That’s bullshit, to put it bluntly. If Fields was free to kill, how come he’s on trial for murder?
Berlatsky then goes off on a tangent about disproportionate punishment of black students. I’m not sure whether that reflects real racism or a difference in school or student behavior, but at any rate it has nothing to do with free speech:
. . . school officials have broad latitude to suppress and punish student speech and expression, on campus and off.
Inevitably, schools use that disciplinary authority disproportionately against marginalized students. Black students in 2013-14 were 15.5% of the US student population, but accounted for almost 39% of suspensions, according to data from the Government Accountability Office (GAO) released this year. Black students were also disproportionately subject to corporal punishment, expulsion, and school-related arrest.
In that context, the Wisconsin school board’s reference to the First Amendment sounds less like a principled stance and more like an excuse. Free-speech rights are important, and school officials are given far too much power to silence their students. But if you truly care about free speech, it’s important to acknowledge the ways in which free speech arguments can be leveraged to protect the powerful while others are silenced.
As usual, the problem is this: who gets to decide which speech to ban? Invariably it’s the person writing the editorial. But until Berlatsky can show me that allowing free speech for one group SILENCES the speech of other groups, I’m sticking with the courts’ construal of the First Amendment.




















