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Yes, The First Amendment Does Protect So-Called ‘Hate Speech’

bill-of-rights

Former Vermont Governor Howard Dean, who ran for President in 2004 and later served as Chairman of the Democratic National Committee from 2005 until 2009, stirred up a debate on Twitter last night with this Tweet:

This set off many responses to the contrary, including one from yours truly:

UCLA Law Professor Eugene Volokh, meanwhile, responded at length at The Volokh Conspiracy:

This leads me to repeat what I’ve said before: There is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn, for instance, Islam — or Muslims, or Jews, or blacks, or whites, or illegal immigrants, or native-born citizens — as one is to condemn capitalism or socialism or Democrats or Republicans. As the Supreme Court noted in Christian Legal Society v. Martinez (2010), “this Court’s tradition of ‘protect[ing] the freedom to express ‘the thought that we hate”” includes the right to express even “discriminatory” “viewpoint[s].” (The quote comes from the four liberal justices, plus Justice Anthony Kennedy, but the four more conservative justices would have entirely agreed with this, though also extended it to university-recognized student groups’ freedom to exclude members, and not just their freedom to express their thoughts.)

To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible.

The same is true of the other narrow exceptions, such as for true threats of illegal conduct or incitement intended to and likely to produce imminent illegal conduct — i.e., illegal conduct in the next few hours or maybe days, as opposed to some illegal conduct some time in the future. But these are very narrow exceptions. Dean’s post came in response to a Steven Greenhouse tweet saying, “Free Speech Defenders Don’t Forget: Ann Coulter once said: My only regret w/ Timothy McVeigh is he did not go to the New York Times building”; but if Dean meant that such speech by Coulter is constitutionally unprotected, he’s wrong. Indeed, even if Coulter was speaking seriously (which I doubt), such speech isn’t unprotected incitement, because it isn’t intended to promote imminent illegal conduct. Compare, e.g., Rankin v. McPherson (1987), which upheld the right to say, after President Ronald Reagan was wounded in an assassination attempt, “If they go for him again, I hope they get him” — and that was in a case involving a government employee being fired for her speech; the First Amendment offers even stronger protection to ordinary citizens whose speech is more directly restricted by the government.

Returning to bigoted speech, which is what most people use “hate speech” to mean, threatening to kill someone because he’s black (or white), or intentionally inciting someone to a likely and immediate attack on someone because he’s Muslim (or Christian or Jewish), can be made a crime. But this isn’t because it’s “hate speech”; it’s because it’s illegal to make true threats and incite imminent crimes against anyone and for any reason, for instance because they are police officers or capitalists or just someone who is sleeping with the speaker’s ex-girlfriend.

(…)

[T]hose who want to make such arguments should acknowledge that they are calling for a change in First Amendment law and should explain just what that change would be, so people can thoughtfully evaluate it. Calls for a new First Amendment exception for “hate speech” shouldn’t rely just on the undefined term “hate speech” — they should explain just what viewpoints the government would be allowed to suppress, what viewpoints would remain protected and how judges, juries and prosecutors are supposed to distinguish the two. And claiming that hate speech is already “not protected by the first amendment,” as if one is just restating settled law, does not suffice.

Volokh is, of course, absolutely correct. The idea that so-called ‘hate speech,” a term which is incapable of being adequately defined objectively and seems to depend entirely on the subjective reactions of listeners, is not protected by the First Amendment goes against the entire history of the First Amendment itself as well as numerous landmark Court decisions that have put the definition of ‘freedom of speech’ to the test. One of the most famous of those, or course, was National Socialist Party Of America v. Village of Skokie, a 1972 case that involved an effort by a predominantly Jewish Chicago suburb’s efforts to block a group of Nazis from staging a march through the town. In that case, the Illinois Supreme Court, acting after a reversal of an injunction against the march issued by the United States Supreme Court, ruled that the use of a swastika in the march was precisely the kind of symbolic speech protected by the First Amendment and that the government could not enact a prior restraint against such speech just based on the fear that it could provoke a violent response from on-lookers. More recently, in Snyder v. Phelps, the Supreme Court set aside a civil judgment issued by a jury in Maryland against the Westboro Baptist Church in favor of the father of a fallen Marine whose funeral was protested by Westboro with its all-too-familiar signs and rhetoric. In its ruling, the Court held that the fact that Westboro’s rhetoric was highly offensive and hateful was not, in and of itself sufficient reason to exempt it from the protection of the First Amendment. In these and other cases, the Supreme Court has made clear that the mere fact that speech is offensive is not, in and of itself, sufficient justification for banning it or punishing those who might utter it in either criminal or civil Court.

This debate is also relevant not only to Dean’s comment on Twitter, but also to ongoing controversies across America involving the efforts by some groups to prevent people they disagree with from even speaking at all, and the extent to which some public institutions are aiding and abetting these attempts at censorship. The most common venue for this recently has been America’s college campuses, once known as bastions of free speech and expression that have now become the primary battleground between so-called “social justice warriors” and people with opposing points of view, typically people on the right. At the University of California at Berkley, for example, a speech by the controversial former Breitbart News writer Milo Yiannopoulos was cancelled after protests against him on the night of the speech turned violent, with students setting fires and causing thousands of dollars of damage to campus once known as the birthplace of the “Free Speech Movement” in the 1960s. More recently at the same campus, an appearance by the equally controversial Ann Coulter was canceled and then rescheduled after students promised to throw similar protests to the ones that accompanied Yiannopoulos’s visit earlier this year. While these students have as much right to protest Coulter and Yiannopoulos as those two individuals do to address the groups that invite them, they don’t have the right to cause physical damage to property, and public institutions such as Berkley are infringing on the First Amendment when the force speakers to cancel events merely because of the existence or fear of protesters.

If the First Amendment stands for anything, it stands for the proposition that even the most offensive and hateful speech is protected from being punished or silenced by the state. While it may offend some people deeply, or even hurt their feelings, that is a small price to pay for the protections it grants to all forms of speech by extension. After all, the Bill of Rights exists not to protect popular beliefs or the favored members of society, but precisely to protect the minority, including most importantly the individual, the smallest minority of all. This applies whether they are saying something pleasant and popular, or something unpopular and allegedly “hateful.” While I can understand that Dr. Dean is not a trained attorney, one would think that he’d at least be sufficiently aware of the status of the law to be aware of this fact.

Update: Governor Dean responded to his critics, by doubling down:

We’ve been discussing the issues raised by Chaplinsky v. New Hampshire, which is a case familiar to many lay people for the so-called “fighting words” doctrine, in the comments. While the case is still technically good law, the scope of its holding has been seriously limited by subsequent case law, including Brandenburg v. OhioCohen v. California, R.A.V. v, City of St. Paul. Additionally, Eugene Volokh addressed Dean’s response, and Chaplinsky, in a blog post that I highly recommend.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Daryl's other brother Darryl says:

    I hate to say it…but that was pretty dumb of Dean.

    Like or Dislike: Thumb up 12 Thumb down 0

  2. HarvardLaw92 says:

    Protected against prior restraint. Not so much protected from the negative consequences which may result from speaking.

    Highly-rated. Helpful or Unhelpful: Thumb up 20 Thumb down 1

  3. Gustopher says:

    He’s either working with a very different and very narrow definition of hate speech, or he’s just dead wrong.

    Like or Dislike: Thumb up 1 Thumb down 0

  4. DrDaveT says:

    The idea that so-called ‘hate speech,” a term which is incapable of being adequately defined objectively and seems to depend entirely on the subjective reactions of listeners […]

    Just to be clear: are you making this criticism of “hate speech” as a legal concept, but not of “fighting words” as a legal concept?

    I actually find it easier to define (and justify restrictions of) hate speech — it’s speech that denigrates members of a protected group simply for being members of that group. Once you admit the exception for “fighting words” on the grounds of likely consequences, you’ve opened the door to exceptions for other kinds of speech that have similarly predictable negative consequences. I would expect you to have drawn your line in the sand there, rather than admitting “fighting words” exceptions while balking at “hate speech”.

    Like or Dislike: Thumb up 3 Thumb down 7

  5. Gustopher says:

    @HarvardLaw92: even then, legally protected against most of the consequences.

    If you’re beating someone while or after screaming appropriate racial slurs, you’ll face punishment. If you explicitly tell someone to beat the minorities, you might face punishment. If you demonize and degrade people, and one of our country’s well armed mentally unstable people shoot someone because of that… well, that’s all fine and dandy.

    It’s that last case that does the most damage to society as a whole, but we have no requirement that a person must take responsibility for the easily foreseen consequences given the number of mentally unstable individuals, nor do we have a way of knowing which hate speech caused it when there is so much out there.

    Like or Dislike: Thumb up 3 Thumb down 3

  6. CSK says:

    I’m a writer, and I’m also a First Amendment absolutist. Since there is no objective definition of what constitutes “hate speech,” anything, therefore, can constitute hate speech according to the whim (or neurosis) of the auditor or reader.

    First Amendment law has traditionally protected religious, cultural and artistic, and political speech, and Thank God for that.

    On the other hand, you may not, as either speaker or writer, baselessly accuse anyone, particularly a private citizen, of being crazy or criminal, since those accusations directly affect the unjustly accused’s reputation, and the courts have ruled that one’s reputation is a tangible asset, since a bad reputation could prevent you from earning a living, as well as suffering needless opprobrium.

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  7. @HarvardLaw92:

    If you mean negative consequences in the form of other people’s speech, you’re correct and nothing I’ve said does or is meant to imply otherwise.

    Like or Dislike: Thumb up 4 Thumb down 0

  8. MarkedMan says:

    Age might not bring wisdom but it surely brings experience and one thing I’ve learned is that those that agree with you on many points may be arriving there from diametrically opposed directions. So although I abhor hate speech as much as the modern campus crusaders claim to, I absolutely think it is a US vs rest-0f-world advantage that we protect even speech of that nature. In fact, although I hold many positions that would be considered liberal, on LGBTQ rights, on the need to treat women with respect and equality, with the incredible burden placed upon people of color in our country by the police and fellow citizens in general, I believe I’m as far from these modern campus crusaders as Archie Bunker was to the Hippies of his day. (Illustration only, as I was a lot closer to Hippie than anything else.) In fact, I view them as modern Puritans of the worst sort, morally self righteous, pinched, angry and constantly judgmental to all. Like the worst of the competitive religious, they fill their days with one-upping their compatriots in the outrage department. While professing tolerance and understanding for all they make exception for those they view as morally inferior, a puritanical position if there ever was one. They feel no compunction about insulting people based on race, religion or sex, if they deem their race, religion or sex to be privileged. And although I share their disgust with comments and judgements on the physical appearance rather than the worth of public figures like Maxine Waters or Hillary Clinton or Venus Williams, my disgust extends to those I disagree with. The constant jokes about how ugly Steve Bannon is, or how fat Donald Trump is trouble me just as much. (Trump’s hair, though, is a choice and so is fair game 😉

    And that’s the problem with those trying to “protect” us from hate speech: all too often it really means “protect themselves from hate speech while encouraging it against the other”. And in anyone’s lifetime you will find the protectors regarding you with their angry eye and moving you from one side to the other on a whim.

    Like or Dislike: Thumb up 8 Thumb down 1

  9. Kylopod says:

    As usual, Dean can be counted on as the Democrat most likely to say asinine things.

    Like or Dislike: Thumb up 4 Thumb down 0

  10. @DrDaveT:

    The entire “fighting words” concept is also legally problematic, which is one reason why the Court has very clearly backed away from the holdings in those cases where the “fighting words” exception was created such as Chaplinsky v. New Hampshire.

    Indeed, if a case like Chaplinsky were to come before the Court today I have serious doubts that the outcome would be the same.

    Like or Dislike: Thumb up 3 Thumb down 0

  11. HarvardLaw92 says:

    @Gustopher:

    It depends on how likely a court believes the speech in question to have been likely to incite imminent, lawless action.

    If it’s something that motivates someone to, say, commit murder weeks later? No.

    If it incites, say, a beating in the immediate, then no. It isn’t protected. Brandenburg was pretty clear about the extent to which the protection extends.

    There are several other exceptions, but I think you get the point. People tend to believe that they can’t ever be / that the 1A protects them from being punished based on their speech, and that’s just not the case.

    Like or Dislike: Thumb up 7 Thumb down 0

  12. Gustopher says:

    @Doug Mataconis: I prefer a more balanced view of fightin’ words — some people are asses and should be punched in the face. This does not mean the people who punch them in face are not also asses who shouldn’t be prosecuted.

    From there I just kind of hope the problem takes care of itself. The guy who punched the nazi in the face at Trump’s inauguration deserves to be prosecuted. And the nazi deserved what he got too — maybe a little more, maybe a little less.

    Like or Dislike: Thumb up 0 Thumb down 0

  13. HarvardLaw92 says:

    @Doug Mataconis:

    Just wondering why you’d cite Chaplinsky here instead of Schenk / Brandenburg?

    Like or Dislike: Thumb up 0 Thumb down 0

  14. Gustopher says:

    @HarvardLaw92: Bill O’Reilly repeats the phrase “Tiller The Bany Killer” repeatedly on his nationally broadcast show until one of his statistically inevitable mentally unbalanced listeners kills Dr. Tiller.

    O’Reilly is not in jail.

    Like or Dislike: Thumb up 4 Thumb down 0

  15. @HarvardLaw92:

    I would put those cases in a different category because they involve efforts to claim that the relevant speech was inciting violence, often in a group of people. But, yes, they are more recent iterations of the same idea that Chaplinsky was based on.

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  16. @Gustopher:

    O’Reilly is not in jail.

    Nor should he be. Unless he was specifically urging people to go out and kill Dr. Tiller and even then it’s a complicated matter. See e.g. cases such as Brandenburg v. Ohio

    Like or Dislike: Thumb up 2 Thumb down 1

  17. HarvardLaw92 says:

    @Gustopher:

    Understood. As I mentioned the test isn’t only incitement. It’s also immediacy. Bill O’Reilly gets up at a rally outside of Tiller’s church saying the same things, and one of his mentally unbalanced fans walks inside & shoots Tiller – O’Reilly stands a very good chance of facing both criminal and civil consequences. It’s a good enough balance between criminalizing all advocacy of violence and extending a blanket protection for it under all circumstances to satisfy me.

    Like or Dislike: Thumb up 6 Thumb down 0

  18. Pch101 says:

    Within the context of recent events, Dean may have been referring to Ann Coulter’s insistence that she appear at Berkeley on a particular day, in spite of security concerns at the location.

    She certainly has a right to be a proud Aryan, but there are also issues such as public safety and managing traffic that may also be relevant. If that’s what Dean meant, then he would have a point.

    Like or Dislike: Thumb up 2 Thumb down 4

  19. HarvardLaw92 says:

    @Doug Mataconis:

    I’m just not seeing much of a difference. Chaplinsky’s conviction was upheld based on the likelihood of his words inciting violence, but the NH statute under which he was convicted essentially criminalized offending someone. The only real substantial deviation in current law from the Chaplinsky standard – which began to be predicated in Schenk and continued through Whitney, Abrams & Dennis in a straight line leading to Brandenburg – is immediacy. The unifying principle is that society has the power to criminalize speech in a variety of ways despite arguable 1A protections to the contrary.

    Like or Dislike: Thumb up 2 Thumb down 1

  20. TM01 says:

    @Gustopher:
    So who decides who’s a Nazi?

    Is Trump a Nazi? What about GWB? Reagan?

    Each of them was literally Hitler in his time.

    What about seeing a Commie punched in the face? Would that first step be OK with you as well?

    Like or Dislike: Thumb up 1 Thumb down 2

  21. @HarvardLaw92:

    The unifying principle is that society has the power to criminalize speech in a variety of ways despite arguable 1A protections to the contrary.

    To the extent that Brandenburg is still good law, yes. But given how free speech cases have fared before the Roberts Court, I have some doubt that even the strict standard of that case, which is far more stringent than Chaplinsky, would withstand scrutiny. And, as a matter of policy, I don’t think that it should.

    Like or Dislike: Thumb up 0 Thumb down 0

  22. HarvardLaw92 says:

    Note: the one that should trouble us more is Holder v. Humanitarian Law Project.

    Like or Dislike: Thumb up 1 Thumb down 0

  23. @Pch101:

    She certainly has a right to be a proud Aryan, but there are also issues such as public safety and managing traffic that may also be relevant.

    It is the responsibility of Berkley authorities to bring that under control rather than seeking to cancel events because of the threat that it might result in violence or disruption. Once we surrender to the heckler’s veto, we head further down the road to censorship of unpopular ideas just because they are unpopular.

    I despise the rhetoric, and much of the substance, of speakers such as Milo and Coulter, but to allow a minority of violent protesters to shut them down is most certainly not in keeping with the principles on which American universities are supposed to be built.

    Like or Dislike: Thumb up 11 Thumb down 0

  24. HarvardLaw92 says:

    @Doug Mataconis:

    So I understand you clearly – you’re arguing that the 1A should protect inciting a riot?

    Like or Dislike: Thumb up 2 Thumb down 2

  25. @HarvardLaw92:

    I’m saying that the standard for punishing someone for “inciting a riot” should arguably be tougher than it is even under the current standard.

    Like or Dislike: Thumb up 4 Thumb down 1

  26. Gustopher says:

    @HarvardLaw92: Why should immediacy be a requirement? By that standard, Osama bin Laden’s tapes would be protected political speech.

    I would say that it mostly shows that these things are going to be enforced sporadically and subjectively, which generally means they will be used to persecute rather than protect.

    Like or Dislike: Thumb up 5 Thumb down 0

  27. HarvardLaw92 says:

    @Doug Mataconis:

    How so? One either incited a riot or one didn’t. One either has a linkage to initiating violence or one doesn’t. Determining that linkage is unavoidably always going to involve a subjective determination. I’m not sure that an objective, rigid standard – which is what I suspect you’re advocating for here – is possible.

    Like or Dislike: Thumb up 3 Thumb down 1

  28. James Pearce says:

    @Pch101:

    She certainly has a right to be a proud Aryan, but there are also issues such as public safety and managing traffic that may also be relevant.

    Bull Connor was a Public Safety Commissioner and would be familiar with such arguments.

    Like or Dislike: Thumb up 1 Thumb down 0

  29. HarvardLaw92 says:

    @Gustopher:

    Because it’s too nebulous to assert a linkage between a statement and an act of violence which may occur days, weeks or even months later. Sure, it would be great if we were able to hold people accountable for the legitimate consequences of their speech regardless of when such a linkage can be sustained, were limited to what we can reasonably prove. The alternative is either to institute a blanket exception for any and all incendiary speech, or to penalize all of it.

    Like or Dislike: Thumb up 3 Thumb down 1

  30. Gustopher says:

    @Doug Mataconis: Does the university have an obligation to provide a platform for unpopular speech, including absorbing extra security costs?

    I don’t think they do.

    You see a heckler’s veto, but I see speakers who are just assholes and have accomplished nothing else than being assholes. The university shouldn’t have to subsidize their speech.

    There are lots of conservatives who don’t go out of their way to offend, or who have accomplished something. There is no reason a conservative message needs to be brought by an inflammatory pundit of no other value.

    That’s not to say that the university must provide a platform for any unpopular speech — they would be well within their rights to reject a speaker from NAMBLA, even if he would provide a different viewpoint than all the other speakers who have been on campus that year.

    Like or Dislike: Thumb up 3 Thumb down 2

  31. Tyrell says:

    The situation at many universities and college campuses has deteriorated completely concerning free speech, debate, and civil discourse. Today’s students just can’t handle any sort of challenge to their views and beliefs. They are frightened of any sort of argument. Even campaign signs are not allowed – called “dangerous”. Professors talk of a chilling atmosphere where any differing views could be called “hate” speech and then the speech police would be after them horse and saddle. Look at the recent debacles at Berkeley: two violent riots. The police there have their hands tied. The governor needs to look into this and send in some sort of group to straighten things out there. That place has been a hotbed of socialist – communist thought for decades. The difference is that long ago they were the center of free speech. On most campuses if you have a conservative or moderate viewpoint, you are warned to keep it to yourself !
    What ever happened to debate ? Even comedian Jerry Seinfeld says that he could not go to colleges today and say the things he used to.
    At Middlebury College a speaker and a professor were injured and required hospital treatment after being assaulted by a bunch of hooligans and misfits.
    At one university even the US flag is not being displayed because it might hurt someone’s feelings ! Are you kidding me ?
    Let me say this: protesting and demonstrating are fine, but they should not disrupt or interfere with my freedom to hear a speaker. If some of these demonstrators were up there talking to the people you can bet that they would want the police to remove anyone who is hollering or disrupting. Or beating people up.
    It is a sad situation. The people who started this country encouraged and practice civil debate and a discussion of differing views. Free speech is being silenced: by the people who should know better than anyone – the educators.

    Like or Dislike: Thumb up 6 Thumb down 3

  32. al-Alameda says:

    More recently at the same campus, an appearance by the equally controversial Ann Coulter was canceled and then rescheduled after students promised to throw similar protests to the ones that accompanied Yiannopoulos’s visit earlier this year.

    I think it would have been a strongl statement if Yiannopoulos and Coulter spoke and – with the exception of those who invited them and who support them – nobody cared enough to protest or attend the event.

    Perhaps because many in my family and my extended family are very conservative and who now support Trump, I’m very accustomed to hearing a lot of political opinion that I do not agree with at all. Now, I understand, these two are provocateurs, and different from my conservative family, but …. I say let them speak and let them go home.. Make it into a non-event, do not give them the satisfaction of wide negative publicity that falls onto the behavior of those opposed to them. Don’t make them into martyrs.

    Like or Dislike: Thumb up 9 Thumb down 0

  33. george says:

    @Gustopher:

    And the nazi deserved what he got too — maybe a little more, maybe a little less.

    Well, to paraphrase Hamlet, if each of us got what we deserve, none of us would escape whipping – or a punch in the face. Which is a good reason not to go around punching people in the face, others are likely to find a reason to punch you (and there’s always a reason).

    Does that mean letting Nazi’s do what they want? Absolutely not, but responding to words with violence just means both sides are going to escalate – this is pretty much as guaranteed as Newton’s third law. If a Nazi is talking, talk back. If they’re throwing punches, punch back. But if you run across one talking and you initiate punching the standard is obvious: punching is the accepted way of dealing with people you disagree with. And that will become the default on all sides.

    It reminds of the time of troubles in Ireland – after a few rounds of retaliation no one remembers who started it, or even what the underlying issues are, its just retaliation for retaliation.

    Like or Dislike: Thumb up 5 Thumb down 0

  34. MarkedMan says:

    @HarvardLaw92:

    Sure, it would be great if we were able to hold people account

    I think this is problematic. Should Jodie Foster be held responsible for John Hinckley?

    Like or Dislike: Thumb up 0 Thumb down 1

  35. HarvardLaw92 says:

    @MarkedMan:

    Did Jodie Foster specifically and directly and intentionally incite Hinckley to violence? I think you’re more than bright enough – by a wide margin – not to construct a straw man like that one.

    Like or Dislike: Thumb up 4 Thumb down 0

  36. CSK says:

    @MarkedMan:

    Of course Foster shouldn’t, any more than any victim of an obsessive, demented fan should be held accountable for that fan’s actions.

    I know you did not pose that question seriously.

    Like or Dislike: Thumb up 2 Thumb down 0

  37. Slugger says:

    OK, Dean was wrong. His current status is private citizen who held some political positions in the past. To my knowledge he has no base of followers and no chance of high office. My eyes have not encountered his name for several years. Does he represent some menace that I am inappropriately oblivious to? Does every incorrect ejaculation by a senior citizen who has no power base merit being taken down?

    Like or Dislike: Thumb up 3 Thumb down 5

  38. Bob The Arqubusier says:

    @Gustopher: “If you’re beating someone while or after screaming appropriate racial slurs, you’ll face punishment. If you explicitly tell someone to beat the minorities, you might face punishment. If you demonize and degrade people, and one of our country’s well armed mentally unstable people shoot someone because of that… well, that’s all fine and dandy.”

    Interesting observation. Are you familiar with the cases of Floyd Lee Corkins and the Family Research Council? Middlebury College’s Professor Allison Stanger? The riots “inspired” by Milo Yiannopoulos at UC Berkeley?

    Let’s take a closer look at Mr. Corkins. He specifically targeted the FRC because they had been named a “hate group” by the Southern Poverty Law Center, and carried a bagful of Chick-Fil-A sandwiches that he intended to use to adorn his victims’ corpses. Did the SPLC bear any responsibility for the shooting he inspired?

    I noted an interesting notion on this topic elsewhere. Are those who say that “hate speech” has no Constitutional protections so comfortable with that position that they wouldn’t mind if other people — people they don’t like — also get to define the term?

    Or are you only OK with banning “hate speech” as long as you get to define it?

    I suspect that a Venn diagram of “hate speech” and “speech people on the left don’t like” would have a tremendous — almost perfect — overlap.

    Like or Dislike: Thumb up 3 Thumb down 6

  39. Gustopher says:

    @george: I want the idiot who punched the Nazi to be identified, and prosecuted.

    To me, that would be the best of all possible worlds — Nazi punched in the face (not hard enough to cause permanent damage) AND and unstable idiot whisked away for a little while. Maybe they will both learn an important lesson. Maybe not.

    But sometimes all you can do is just root for injuries and hope the idiots on each side take each other out of the process.

    Like or Dislike: Thumb up 2 Thumb down 0

  40. Gustopher says:

    @Bob The Arqubusier: I would refer you to any course in reading comprehension.

    Like or Dislike: Thumb up 5 Thumb down 0

  41. Franklin says:

    @Gustopher:

    There is no reason a conservative message needs to be brought by an inflammatory pundit of no other value.

    There’s definitely some truth in this. All I hear from Milo and Coulter are a string of insults. If they ever add even semi-original arguments to the issues of our time, I have yet to notice.

    Like or Dislike: Thumb up 1 Thumb down 1

  42. Bob The Arqubusier says:

    @Franklin: “There’s definitely some truth in this. All I hear from Milo and Coulter are a string of insults. If they ever add even semi-original arguments to the issues of our time, I have yet to notice. ”

    To which I say, so what?

    It is not your place to approve or disapprove of which speakers others wish to hear. You have no such power over others, but for some reason you seem to think that the people you don’t like have to meet your exacting standards, or they can’t exercise basic rights.

    If you don’t believe in abortion, don’t have one.

    If you don’t like a speaker, don’t listen to them.

    You believe in free speech, or you don’t. And if you turn a blind eye to the heckler’s veto, then you’re approving of it.

    Come on. Can’t you appreciate the sublime absurdity of the people dressing up in black clothes, wearing masks, and committing violence (both against property and people) to stop others from speaking calling themselves “anti-fascists?”

    First, of course, you’d have to acknowledge that the Antifas exist, so I can see why you’d have a problem. Willful blindness is a tough obstacle to overcome.

    Like or Dislike: Thumb up 7 Thumb down 5

  43. Laura Koerber says:

    @Pch101: Free speech does not mean that any person or organization is obliged to give someone a platform. Seems to me that a university can decline an offer by someone to speak, or tell a group of students that no they are not going to invite someone to speak. There is not free speech issue in simply not giving someone access to faculties for speaking.

    This is true even if the institution has a policy of non partisan or bi-partisanship. Seems to me that conservative speakers could be found who are not hate mongers or con artists. For example, Ann Coulter is not a representative of either the Republican party or the conservative political philosophy. She’s a con artist who realized that if she said offensive things, a certain segment of society would throw money at her.

    However, if someone is invited to speak, then they have to be allowed to give their speech. Interfering with the delivery of the speech would be a violation of that right to free speech.

    That’s my take on it.

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  44. MarkedMan says:

    @HarvardLaw92:

    I think you’re more than bright enough – by a wide margin – not to construct a straw man like that one.

    Actually I was trying to reinforce what you said, not challenge it. It is easy to say in the abstract that this type of speech or that incites violence while some other falls short, but in the reality it is hard tocome up with an exact rule.

    In Trump’s case though, I think the bar has been passed. He repeatedly made comments about paying people’s legal bills and how, in a better time, “these people” would be knocked around.

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  45. teve tory says:

    As I’ve explained many times, under the First Amendment a public university cannot prevent someone from speaking based on the viewpoint of the speaker or the content of that speech, if they were invited to speak by a student group. If the university itself extends an invitation to speak, then of course they can pick and choose who they do and don’t invite. But that happens very rarely. In the case of someone like Ann Coulter or Milo the asshole, they are almost always invited by a student group (the Berkeley College Republicans for Ann Coulter in the current controversy). And in such cases, if they allow student groups to invite speakers to campus at all, they have established a public forum and they cannot then pick and choose which speakers are allowed to speak.
    Please note that this is a statement of what the law says. You may think that the law should not say this, but it does. There are few matters of constitutional law as well established as this. It’s pretty much indisputable. You can argue against it as a “should” but any argument that it isn’t an accurate statement of the law as it stands is simply false.

    [snip]

    If it’s a traditional, limited or designated public forum, then the speaker does indeed have a right to that platform.”

    -ed brayton

    (teve’s bolding)

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  46. RangerDave says:

    @Laura Koerber: There is not free speech issue in simply not giving someone access to faculties for speaking.

    There is if the owner of the facilities is a government actor (which a public university is). If a government actor decides to make its facilities available for speeches by members of the general public, it has to do so on a viewpoint neutral basis.

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  47. gVOR08 says:

    @Slugger:

    His current status is private citizen who held some political positions in the past. To my knowledge he has no base of followers and no chance of high office.

    Exactly, this is trivia.

    This, on the other hand, seems to me consequential:

    “Of course, protesters have their own First Amendment right to express dissenting views, but they have no right to do so as part of the campaign rally of the political candidates they oppose,” Trump’s lawyers wrote.

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  48. DrDaveT says:

    @Bob The Arqubusier:

    I suspect that a Venn diagram of “hate speech” and “speech people on the left don’t like” would have a tremendous — almost perfect — overlap.

    And a Venn diagram of “scientific consensus” and “facts people on the right deny” would have a similar overlap. There’s a reason for that. What’s your point?

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  49. Bob The Arqubusier says:

    @DrDaveT: My point, dear boy, is that your and yours use such fluid definitions that you can’t be trusted.

    In theory, it’s hard to argue that “hate speech” has any value. But your definition of “hate speech” seems to be pretty much “speech we don’t like.”

    Similarly, who can object to punching Nazis? But once that’s settled, almost everyone you don’t like is a Nazi. “I’m a Nazi, he’s a Nazi, she’s a Nazi, it’s a Nazi, ze’s a Nazi, wouldn’t you like to be a Nazi too?”

    In brief, sir, you’re not going to get any agreements based on you speaking and acting in good faith because you’ve proven time and again, that you can’t be trusted.

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  50. Bob The Arqubusier says:

    @Laura Koerber: So, you’re fine with a state school imposing content-based restrictions on others’ right to speak and peacefully assemble?

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  51. Pch101 says:

    @Doug Mataconis:

    It is the responsibility of Berkley authorities to bring that under control rather than seeking to cancel events because of the threat that it might result in violence or disruption

    Berkeley wants to delay the thing by five days.

    Let’s remember that she wants to speak on what is state property. Accordingly, the state controls the venue.

    There is no obligation to provide space 24/7 whenever somebody wants it. (Go trying getting approval to hold a protest in a residential neighborhood at 4AM or in the middle of an interstate at all.) The First Amendment doesn’t say that scheduling can’t be changed or that every location is fair game.

    That isn’t a First Amendment issue. She has a right to speak generally but the university isn’t obliged to provide her with a hall in which to do it on a specific date of her choosing. She isn’t a dissident whose voice is being suppressed, she’s a columnist who has no shortage of access to media.

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  52. Matt says:

    @Tyrell:

    Today’s students just can’t handle any sort of challenge to their views and beliefs. They are frightened of any sort of argument.

    Your post is so full of bullshit it’s amazing. Your post is basically a bingo card for right wing / libertarian / anti-intellectualism talking points.

    For those that care I attended community college in two vastly different states (unexpected move but credits transferred). I have also attended some classes at a state university. So I have recent perspective and have been involved in many a rigorous debate from god to the laws of the land and everything between.

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  53. Bob The Arqubusier says:

    @Pch101: “Berkeley wants to delay the thing by five days. ”

    Berkeley, after agreeing to a certain date, and after Coulter and the others had bought plane tickets, booked hotel rooms, and made a whole bunch of other arrangements and spent a lot of money, decided “let’s push it back almost a week.”

    Coulter is, among other things, a professional speaker. She makes her schedule at least months in advance. She’d, most likely, have to rebook several other events and cancel and rearrange several sets of plane and hotel plans.

    Berkeley knew they had this problem with their rioting snowflakes months ago, and waited until the last minute to spring this change on Coulter and her sponsors. It’s straight up censorship. And it’s censorship based on content and viewpoint that they don’t like.

    State schools don’t get to do that.

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  54. Bob The Arqubusier says:

    @Matt: “For those that care I attended community college in two vastly different states (unexpected move but credits transferred). I have also attended some classes at a state university. So I have recent perspective and have been involved in many a rigorous debate from god to the laws of the land and everything between. ”

    Hey, everyone, forget everything you’ve heard and seen about the special snowflakes on college campuses. Forget all the words the snowflakes have written, forget all the videos you’ve seen, and especially forget any you might have spoken. Matt hath spoken. It’s all, as he says, “bull-crap.” (Redacted for site rules.)

    Who you gonna believe, Matt or your lyin’ eyes?

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  55. Guarneri says:

    @al-Alameda:

    Ah, indeed. But like the scorpion on the frog………..it’s their nature.

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  56. James Pearce says:

    @Slugger:

    Does every incorrect ejaculation by a senior citizen who has no power base merit being taken down?

    This is an excellent point, and one that the Berkeley protesters should consider viz a viz Ann Coulter.

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  57. Bob The Arqubusier says:

    @James Pearce: Dear chap, I was going to dock you points for the gratuitous dig at Coulter, but if that means you’re backing away from the “antifa” fascists, that’s good enough for me.

    FYI, Coulter’s 55. Or, possibly, 53 — she’s vague about that. But since she graduated high school in 1980, either is feasible. (Thanks, Wikipedia!) Either way, she’s well away from 65.

    But again, if you feel the need to make a swipe at Coulter as the price for your not supporting the fascists, I’ll refrain from calling it sexist, ageist hate-speech.

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  58. @HarvardLaw92:

    Apologies for the late response, but I was offline after dinner last night.

    In any case, my last response to you was somewhat in haste and less detailed than I wanted it to be, so let me clarify. By and large, I’m fine with Brandenburg and the way it deals with the incitement issue. My concern is with the other remaining implications of what the court had decided in Chaplinsky, which itself has also been limited by cases such as Cohen v. California and R.A.V.. v. City of St. Paul. As a matter of principle, I think people who respond violently to speech should be the sole persons responsible for their action absent extraordinary circumstances.

    Incidentally, as a noted in an update to this post, Dean responded to his critics with a Tweet last night that cited Chaplinsky, and Professor Volokh responds in a new blog post.

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  59. DrDaveT says:

    @Bob The Arqubusier:

    But your definition of “hate speech” seems to be pretty much “speech we don’t like.”

    If by ‘we’ you mean “the nation, as codified in our laws”, then that’s pretty much correct. Protected classes are protected because the nation has decided that we’re a better nation when the bigots are not given free rein. But I get the impression you skimmed past the “legally protected groups” part of my definition.

    …which has not changed. I think you’re projecting again with this “fluid definitions” silliness.

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  60. DrDaveT says:

    @Bob The Arqubusier:

    Similarly, who can object to punching Nazis?

    Um, every liberal I know?

    Seriously, where do you get these straw men? Was there a bulk deal at Costco?

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  61. James Pearce says:

    @Bob The Arqubusier:

    FYI, Coulter’s 55

    And now eligible to order off the 55+ menu at Denny’s.

    At any rate, the point wasn’t that Ann Coulter is a senior citizen, which is obviously debatable, but that the Berkeley protesters should take a chill pill on her speech. Does every provocation from a provocateur merit a protest? I say no.

    But then again, I grew up in the rock n roll era. We had our insecure scolds, too. They bulldozed Judas Priest records and protested Marilyn Manson concerts, and while these protesters came from a very different ideological space, the idea was the same: Listening to this thing (whether it’s Sad Wings of Destiny or Ann Coulter’s shtick) is harmful, not only to you individually but our society at large, and as such, it must be stopped.

    I disagreed with that nonsense back then and I disagree with it now.

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  62. Bob The Arqubusier says:

    @DrDaveT: So, dear fellow, please give us a definition of “hate speech” that we can all agree with. I will award you bonus points if you achieve the following:

    1) I can not use to then classify a whole bunch of comments from the left-leaning commenters here as “hate speech.”

    2) Do not violate the Equal Protection principle by asserting that certain groups have more rights to not be offended than other groups.

    3) Are not dependent upon the identity of the speaker to be classified as “hate speech.”

    Pull off that Triple Lindy, and we’ll talk.

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  63. michael reynolds says:

    @DrDaveT:

    You know ‘Bob” is ‘J-e-n-o-s’ right? So any real engagement will be impossible. He’ll just keep moving the goalposts, lying, evading. . . the usual array of dishonest tactics.

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  64. Pch101 says:

    Gee, I wonder if the right-wing outrage machine would work itself into a tizzy if Bob Jones University tried to reschedule the appearance of a black leftist activist on its campus.

    For that matter, would they be up in arms if Bob Jones University simply refused to permit said activist to appear on campus?

    (Big hint: I doubt it.)

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  65. @Pch101:

    There is a major difference between Berkeley and Bob Jones University.

    One is a public university subject to the First Amendment, the other is not.

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  66. Pch101 says:

    @Doug Mataconis:

    There is another major difference: Right-wingers like to pretend that they’re martyrs, but they are quite happy to promote a monoculture in their image whenever given the opportunity.

    In any case, as I’ve already noted, it should be obvious that there is no First Amendment problem here. There is no constitutional right to hold an event whenever you feel like it without any regard for traffic management, crowd control, etc.

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  67. DrDaveT says:

    @michael reynolds:

    You know ‘Bob” is ‘J-e-n-o-s’ right?

    Yep. I was curious how long he could maintain the ostensibly different voice, but even before he broke out the “dear boy” it was pretty obvious.

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  68. george says:

    @Gustopher:

    But sometimes all you can do is just root for injuries and hope the idiots on each side take each other out of the process.

    I have to (with a somewhat guilty conscience) admit that I’ve done that – its wrong, but when I heard about the last confrontation in Berkeley between the pro-Trump fighters and antifa’s, my first response was along the lines of “good, I hope a lot of both groups took some lumps, maybe teach them to “talk, talk, talk” instead of “war, war, war”.

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  69. george says:

    @Bob The Arqubusier:

    Similarly, who can object to punching Nazis?

    Um, anyone who realizes punches (almost always) end up going both ways? And escalate quickly to various weapons (humans are lousy fighters unarmed, we’d all be tiger and bear kibble if we hadn’t learned to use weapons – and weapons we tend to use both well and with little provocation, given that was a survival trait for most of the hundreds of thousands of years of our evolution).

    Most liberals, and most conservatives (just like most Catholics and most Protestants in Ireland in the time of troubles) are against settling things with violence (and by most I mean well over 50% of each group). Unfortunately it seems it only takes a few percent who enjoy violence to start a whole cycle of violence – entropy in action I suppose – and in this case there are individuals on both sides who fit into that category (and this is clearly not a false equivalence, as even a quick Google will show).

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  70. James Pearce says:

    @Pch101:

    they are quite happy to promote a monoculture in their image

    Right-wingers are the ones promoting “monoculture?” Nah, they’re happy being a subculture.

    If we want to talk about who promotes the monoculture, it would be the left with their Meinhoffian “what does not please me must not exist” BS.

    Also:

    There is no constitutional right to hold an event whenever you feel like it without any regard for traffic management, crowd control, etc.

    Yes, there is. Read Kzir Khan’s pocket Constitution.

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  71. Paul L. says:

    Howard Dean would have been right if Obama did not have his Supreme Court seat stolen.

    A Progressive Supreme Court with Merrick Garland would put an end to Hate speech being protected by the first amendment.

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  72. Gustopher says:

    Can’t Berkeley solve their security problems and protect Ann Coulter’s First Amendment rights to free speech by sticking her in one of our Orwellian “Free Speech Zones” that pop up whenever people want to protest the Republican National Convention?

    Stick her behind a chain link fence about two miles away from the campus, and then ignore her.

    Those interested in protesting her presence can be put in a different Free Speech Zone two miles in another direction, and those interested in protesting her treatment can be put into a third Free Speech Zone. And, we still have a compass direction left over, in case we need a fourth Free Speech Zone for something.

    Isn’t this the way to ensure law and order? Coulter does like law and order, doesn’t she?

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  73. Gustopher says:

    @Paul L.: The nice part about living in a fantasy world is always being right and always being on the side of the heros. We sure saved America when we refused to consider a Supreme Court nomination of a centrist jurist, didn’t we? Why, that Merrick Garland was going to be the swing vote on every issue, and he was just eeeeeevil.

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  74. Paul L. says:

    @Gustopher:
    The Republican National Committee is a private organization not a public/Government.
    They are not funded by the Government.
    If Coulter rented a hall, she could put the protesters in a “Free Speech Zones”

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  75. HarvardLaw92 says:

    @george:

    maybe teach them to “talk, talk, talk” instead of “war, war, war”.

    We’re supposed to find a way to have kumbahyah moments with white supremacists & Hitler worshippers? Seriously?? All you accomplish there is normalizing their evil.

    No. I had several entire generations of my family wiped off of the face of the Earth because they refused to acknowledge evil as being uncontrovertibly and irredeemably evil when it stared them in the face. The entirety of my direct family – in the world – can fit comfortably around a dinner table. As a result, I won’t ever make that same mistake.

    And neither should the rest of you. Evil can not be reasoned with. It can only be eradicated.

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  76. Paul L. says:

    @Gustopher:
    We already know the Garland court would ignore the 1st Amendment for Citizens United.
    So ignoring it for Hate Speech is not too big a stretch.

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  77. HarvardLaw92 says:

    @James Pearce:

    Yes, there is. Read Kzir Khan’s pocket Constitution.

    There is a right to assembly. It is by NO means unequivocal. PCH is correct.

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  78. HarvardLaw92 says:

    @Paul L.:

    Show me the passage in the Constitution which establishes a right to contribute money to / spend money on political campaigns, please.

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  79. HarvardLaw92 says:

    @Doug Mataconis:

    Bob Jones just (somehow) managed to regain their tax-exempt status. Would you agree that refusing to permit a African-American speaker on the ground that he/she is African-American opens the door for us to reinvoke Bob Jones University v. United States & yank their exemption again?

    For that matter, they’re a Title IV recipient. Can we negate that based on the same?

    That line you’re trying to draw is a great deal murkier than you want for it to be.

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  80. Gustopher says:

    @HarvardLaw92: Eradicated, you say? How?

    Evil has always been with us and always will be with us. We, as a society, have to manage our evil, and keep it on the appropriate sidelines where is will always remain a small festering problem, but there’s no way to eradicate it.

    In the case of our rising Nazi problem, I think gently nudging our idiot “I’m young and stupid and want to punch something” crowd of antifas towards them, and then arresting them all in the aftermath seems like the best strategy. No normalization, no dialogue, no compromise (“well, you can’t kill all the Jews, but we can come up with something…”). Just a big bunch of idiots now with arrest records, chatting with attorneys, trying to figure out how much this is going to screw up their lives.

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  81. HarvardLaw92 says:

    @michael reynolds:

    You know ‘Bob” is ‘J-e-n-o-s’ right?

    I rather thought that was glaringly obvious. There are people here who haven’t figured it out already?

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  82. Gustopher says:

    @Paul L.: up until 2016, they were funded by the government, and the Free Speech Zones were around since the 1990s at the latest.

    So, Free Speech Zones clearly passed muster, and the college can just toss Coulter into one. Problem solved.

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  83. Gustopher says:

    @Paul L.: show me something in Galrland’s history showing he would take such a vote, and then the four other justices that would join him.

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  84. Paul L. says:

    @HarvardLaw92:

    Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    Now you quote to me where it says “Separation of Church and State” is absolute.

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  85. HarvardLaw92 says:

    @Gustopher:

    Eradicated, you say? How?

    Both sets of grandparents immigrated from Germany in the 1930s. The rest – all of them – stayed behind. After all, our family had lived in Germany for hundreds of years. They were GERMANS, after all. It was all talk, and there was no way their fellow countrymen would harm them.

    They – all of them – subsequently went up chimneys as a result of their mistake. One that – I’ll reiterate – I won’t make.

    There are people who are just incapable of living in and being a part of civilized, tolerant society. These people fall into that category. They’ve forfeited the right to live among the rest of us.

    That may be something you find offensive. Tough noogies. Let your family go up a chimney and then get back to me about you feel about it.

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  86. HarvardLaw92 says:

    @Paul L.:

    Sorry, you didn’t answer the question. I see “speech”, “press”, “assembly” and “petition for redress”.

    I asked you about the expenditure of money for political purposes. Please point out that section for me.

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  87. @HarvardLaw92

    I don’t know the facts behind that decision, so I’m not going to comment. Even so, though, having tax exempt status does not make one subject to the First Amendment.

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  88. @Pch101:

    When a public university makes space available to student organizations and allows them to invite outside speakers, it cannot discriminate against some organizations or speakers based on the content of their words, the identity of the organization that invited them, or the fact that a group of hooligans is threatening violence if the event is allowed to go forward.

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  89. HarvardLaw92 says:

    @Doug Mataconis:

    Even so, though, having tax exempt status does not make one subject to the First Amendment.

    Nobody said that it did. The point is that Bob Jones predicated its position in that case on its religious beliefs, and asserted that punishing it (revoking its tax exemption) for following them constituted a violation of the 1A.

    SCOTUS applied strict scrutiny and disagreed with them.

    Under that same standard, Bob Jones would certainly be within its rights to deny an African-American speaker. The government would also be constitutionally sound in revoking its tax exemption, removing it as a Title IV participant, and any other statutory measures from which it may benefit in order to punish it for doing so.

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  90. Pch101 says:

    @Doug Mataconis:

    It’s a five day delay that is allegedly based upon the need to make arrangements for the event.

    Her speech is not being banned. Don’t argue against a strawman.

    In any case, the point that I was making is that the American right is generally uninterested in promoting discourse, but just wants to trumpet its position. They would not fight for the black activist in my hypothetical scenario because they would want him to stop being so damn uppity and just shut the hell up.

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  91. Gustopher says:

    @HarvardLaw92: Again, I ask, how do you plan on eradicating evil?

    Honestly, if you have a solution to the problem, I’m right there. I’m not a non-violence extremist either — Gandhi and MLK would have fared very poorly in Nazi Germany.

    But human nature being what it is, I think we have to manage our evil through marginalization wherever possible, or we risk making things much worse and encouraging a lot more evil on both sides. (It would be prudent for a lot of people to start learning about weapons now, though, when the alt-right Nazi scum have the ear of our dim witted and easily led President)

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  92. HarvardLaw92 says:

    @Doug Mataconis:

    it cannot discriminate against some organizations or speakers based on:

    the content of their words

    Agreed

    the identity of the organization that invited them

    This one depends …

    or the fact that a group of hooligans is threatening violence if the event is allowed to go forward

    Disagree. SCOTUS has made it pretty clear that proscribing the likelihood of violence by denying access doesn’t violate the 1A unless you can establish viewpoint discrimination. Reread Cornelius

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  93. HarvardLaw92 says:

    @Gustopher:

    Honestly, if you have a solution to the problem, I’m right there

    I hear that Antarctica is lovely this time of year.

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  94. HarvardLaw92 says:

    @Doug Mataconis:

    When a public university

    Are you arguing that a public university constitutes a public forum?

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  95. @HarvardLaw92:

    I’m arguing that as a public university, they are subject to the requirements of the First Amendment. The same would not be true of a private institution such as Harvard, Yale, or Princeton. Although in those cases one could argue that restrictions on speech do at least run counter to what the mission of an institution of higher education ought to be. That’s a matter of debate, though, not a matter of law.

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  96. @HarvardLaw92:

    Under that same standard, Bob Jones would certainly be within its rights to deny an African-American speaker. The government would also be constitutionally sound in revoking its tax exemption, removing it as a Title IV participant, and any other statutory measures from which it may benefit in order to punish it for doing so.

    Perhaps that’s true, but that’s a hypothetical beyond the scope of what I am discussing.

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  97. Just 'nutha ig'nint cracker says:

    @Slugger:

    Does every incorrect ejaculation by a senior citizen who has no power base merit being taken down?

    Since we’re talking about the Twitter/interwebs/virtual-lifeverse, I’m going to go for yes on this one. If we were talking about real life, certainly, the answer would be no, but the web is where we go to release our violent tendencies. Better virtual violence than real.

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  98. @Pch101:

    The funny thing is that on college campuses across the country today, the side of the aisle that is demanding that people with opposing points of view “shut the hell up” or that they be given “trigger warnings” or “safe spaces” to shield them from ideas that they disagree with is overwhelmingly coming from the left.

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  99. Pch101 says:

    @Doug Mataconis:

    Well, go argue with them.

    THIS is a five day delay.

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  100. HarvardLaw92 says:

    @Doug Mataconis:

    I’m arguing that as a public university, they are subject to the requirements of the First Amendment

    And I don’t disagree. I’m just making the point that the limits are quite different with respect to public and non-public forums. I’d argue that, as a school, it may be a public university, but it is not a public forum (no more than a high school is a public forum).

    Which is why I gave you Cornelius. SCOTUS has been clear that government is well within its rights to deny access to a non-public forum based on the likelihood that granting access is likely to incite violence. To wit:

    [t]he First Amendment does not forbid a viewpoint-neutral exclusion of speakers who would disrupt a nonpublic forum and hinder its effectiveness for its intended purpose.

    Berkeley, as a non-public forum, can certainly deny her access predicated on the likelihood of violence. They’d be well within their rights to do so, and recent history would substantiate their justification for doing so.

    Coulter can certainly argue that the denial constitutes viewpoint discrimination, but the burden of proof in that regard lies with her, not with the state.

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  101. Just 'nutha ig'nint cracker says:

    @Laura Koerber:

    For example, Ann Coulter is not a representative of either the Republican party or the conservative political philosophy. She’s a con artist who realized that if she said offensive things, a certain segment of society would throw money at her.

    Hear! Hear!

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  102. James Pearce says:

    @HarvardLaw92:

    PCH is correct.

    Kinda….

    It’s true one does not have the right to assemble without restriction, and concerns about traffic management and crowd control can be one of those restrictions….but does PCH strike you as someone overly concerned with crowd safety?

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  103. HarvardLaw92 says:

    @James Pearce:

    but does PCH strike you as someone overly concerned with crowd safety?

    I’m not going to speculate about his motives. He made a legal argument; one which is indeed correct.

    Assembly is limited in all sorts of ways, primarily predicated on the nature of the forum itself, and compelling state interests which may come into play (these vary both in nature and necessity based on the nature of the forum in which the events they propose to regulate occur.)

    Which is where Doug is gently being led to above. There is an enormous amount of garment rending going on above predicated on the erroneous assumption that Berkeley, as a public university, constitutes an open public forum. In reality, it is nothing of the sort, so the applicable rules change.

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  104. Pch101 says:

    The air sure is thin up on Planet Pearce.

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  105. HarvardLaw92 says:

    @Doug Mataconis:

    The funny thing is that on college campuses across the country today, the side of the aisle that is demanding that people with opposing points of view “shut the hell up” or that they be given “trigger warnings” or “safe spaces” to shield them from ideas that they disagree with is overwhelmingly coming from the left.

    And this doesn’t constitute a reflection of the broader society in which these institutions exist? The filtering out of dissension has become a societal norm across the board.

    We’re a society in which blocking out things one doesn’t wish to hear involves nothing more than clicking the “block” button.

    e.g. “I do not like your ideas, so I’m going to block you from my newsfeed / unfollow you / unfriend you”. It’s quite logical that this digital phenomenon would extend into, and equally limit discourse in, our physical daily lives.

    To try to characterize it as a “liberal” phenomenon is disingenuous. It’s a societal phenomenon, and it exists pretty consistently across ALL of society. Conservatives are no less guilty of, and in fact in many instances are egregiously guilty of, limiting the discourse to only what they wish to hear. Stones and glass houses are a bad mixture.

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  106. James Pearce says:

    @HarvardLaw92:

    He made a legal argument; one which is indeed correct.

    Yeah, I don’t know….

    Seems to me that it’s “correct” as long as you remove all context. I mean, we have a speaker giving a presentation at a university. This, by itself, does not provide anything beyond the usual concerns for traffic management and crowd safety.

    That the speaker is Ann Coulter also doesn’t provide anything beyond the usual concerns for traffic management and crowd safety.

    That Ann Coulter is speaking at Berkeley also doesn’t provide anything beyond the usual concerns for traffic management and crowd safety.

    It’s not until we add the protesters that we need to be unusually concerned about traffic management and crowd safety.

    And yet, PCH isn’t arguing to restrict the protesters’ right to assemble. It’s pretty clear he’s arguing against the Coulter event:

    There is no constitutional right to hold an event whenever you feel like it without any regard for traffic management, crowd control,

    I’m not sure if I would call that a “correct” interpretation of the relevant caselaw.

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  107. Pch101 says:

    @James Pearce:

    The air remains thin up on Planet Pearce.

    As does Bunge, you argue against voices inside your head, and I just can’t take you seriously.

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  108. @HarvardLaw92:

    I didn’t say it was exclusively a liberal idea. I simply observed that these behaviors seem to be predominantly coming from the left, at least in the context of college campuses, which is both unfortunate and ironic. One of the hallmarks of a University education is supposed to be exposure to alternative ideas and the questioning of even basic truths, when students start demanding “trigger warnings” and “safe spaces” in response to ideas that question something they believe in it strikes me that they are asking for something antithetical to what a University is supposed to represent. It’s not just me saying this, academics and administrators at many top universities have made the same observation.

    As for blocking out ideas one disagrees with, yes one can do that but it seems to me to be a form of weakness. If you’re unwilling to expose yourself to alternative ideas, or if you reject them out of hand by attacking the people who disagree with you, then it’s a sign that you’re not as confident in your own beliefs as you claim to be. (And I’m using “You” in the universal sense here, not referring to you specifically, just to be clear.)

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  109. Just 'nutha ig'nint cracker says:

    @HarvardLaw92: Back in the days when religious universities were religious institutions of education (or indoctrination if you prefer, I’m okay either way) instead of the businesses they are now, everyone accepted that if one wanted to take a principled stand against some government position, one needed to be willing to bear whatever burden that stand entailed and trust whatever deity one worshiped to reward the faithfulness shown.

    Of course, none of those schools were as large or diversified as Bob Jones University and its various side businesses either. But I do miss those days.

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  110. george says:

    @HarvardLaw92:

    If they’re talking, then talk back. If they resort to violence, answer back with violence, and do it better.

    I’m sorry about what happened to your family. My people were decimated from 80 million to 4 million, we lost a continent, and I see no prospect of regaining it with talk. Does that mean I should go out and try to kill everyone with non-indigenous heritage, because if I’m not violent that means I’m normalizing what happened?

    If Nazis are violent, then you answer with violence. But responding with violence to words doesn’t work the way you seem to think it does.

    BTW, what is a kumbahyah moment? Is it related to the holocaust?

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  111. HarvardLaw92 says:

    @James Pearce:

    It’s not until we add the protesters that we need to be unusually concerned about traffic management and crowd safety.

    Berkeley just had what was essentially a riot in response to a speaker which the students didn’t care for. You not only can’t consider this event outside of the context of the environment in which it is proposed to occur, if you’re a university administrator, you’d be remiss (I’d even go so far as to say derelict) in your duties if you DIDN’T consider it – and take whatever measures are necessary to prevent it.

    A university is not an open public forum. She doesn’t have an unequivocal right to speak there, and the university is free to consider all variables (including costs of providing appropriate security, comparable scale of effort, the likelihood of violence, etc.) in making its decision with regard to whether she’s allowed to speak.

    You seem to be approaching this from the viewpoint that she has some sort of unequivocal right to speak which the university may deny to her only under the most egregious of circumstances. That’s just not accurate. Generally speaking, universities enjoy a pretty broad power to regulate speech within their area of control. It’s not a case of “there are only a few reasons for which they are allowed to deny.”

    It’s a case of “there are a few protected rationales which universities may not employ in making the decision to deny, otherwise they enjoy broad authority to do so.”

    I’m not sure if I would call that a “correct” interpretation of the relevant caselaw.

    It’s not only correct. It’s not even that unusual. To understand this area of the law, you must understand the various types of forums extant under the law and the different level of protections which they enjoy under the 1A.

    If she wanted to stand on a public street and do her rant thing, it would be a different ballgame entirely. But this is not that animal.

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  112. teve tory says:

    Berkeley just had what was essentially a riot in response to a speaker which the students didn’t care for.

    Illiberal groups like Identity Evropa, a white supremacist group, planned for days to instigate violence at that event, and had weapons there from the get-go. Probably some ‘Aftifa’ people did too. Don’t characterize that event as intolerant student leftists hearing something they didn’t like.

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  113. HarvardLaw92 says:

    @george:

    If they’re talking, then talk back.

    Just out of curiosity, what exactly does one talk about when conversing with Nazis / white supremacists, etc? To engage them in conversation is to entertain the possibility that there is some degree of merit in what they have to say. It normalizes it. That is just not the case.

    BTW, what is a kumbahyah moment? Is it related to the holocaust?

    It’s related to camp / girl scouts / etc. It’s a song which everybody sings, typically around campfires, in some sort of “why we’re all just one big happy family” moment.

    in other words, “well, I know you want to exterminate Jews / hate minorities based on their skin color, but I’ll bet you’re just misunderstood and basically a good person at heart. Let’s all have a great big group hug!”

    It’s misguided and naïve in the extreme. You don’t sit down and have a conversation with Nazis. You don’t sit down and have a conversation with white supremacists. The content of their ideas makes them irredeemable.

    You can shame them into changing their beliefs. You can grab your pitchfork & run them out of town if they refuse. If you have no other choice, you can kill them if you have to.

    But you don’t invite them over for tea …

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  114. teve tory says:

    Hardcore leftists and hardcore rightists like fighting each other, at least as far back as the Left Bank in the mid 20th century.

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  115. HarvardLaw92 says:

    @teve tory:

    Don’t characterize that event as intolerant student leftists hearing something they didn’t like.

    I didn’t. I characterized it as a riot. The threat of a similar event happening in response to Coulter is more than enough justification for preventing her from speaking should the university wish to do so. It would be entirely defensible in court, and they’d win.

    Various spokespersons for Berkeley Against Trump, which organized the protest, made it clear that their goal was to prevent this Milo person from speaking. They had, in fact, been demanding precisely that (cancellation of the event) of the administration for weeks prior to the protest.

    The Black Bloc people turned it into a riot. I’ll stop short of suggesting that you demonstrate to me that there is no overlap between the group of Black Bloc and the group of Berkeley students, but I will leave that insinuation hanging out there.

    The takeaway from that is that the peaceful protestors decried the violence, not the cancellation (which they were pleased with), so the distinction becomes one of tactics, rather than one of goals.

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  116. Gustopher says:

    @HarvardLaw92:

    I hear that Antarctica is lovely this time of year.

    How do you identify those to be shipped off? How do you organize the deportations? If we can get the Nazis to self-deport to the White Continent, that’s one thing (and if they had the money for the trip, that would be excellent), but when that only nets a handful?

    I agree that you cannot talk to Nazis and that there is no meaningful dialogue you can have with them, but I am not willing to write off all the fellow travelers. Right now that would be nearly half the voting public, carefully arranged to make a popular vote loser the electoral winner.

    What can you make of the Trump administration being filled with Nazi approving hangers-on, while Trump delegates everything from Mid East Peace to reducing paper clip expenses to his Jewish son-in-law? There’s certainly an ideological confusion that results in statements of Holocaust remembrance that don’t mention Jews — this has to be perpetually identified and shunned and people need to be reminded that this is not normal.

    In the meantime, gather guns and ammunition. We may not be reliving the 1930s in Germany, but when one of our major parties is embracing Nazis, it cannot hurt (other than the statistical likelihood that you are more likely to shoot yourself or a family member than anyone attacking you)

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  117. george says:

    @HarvardLaw92:

    Just out of curiosity, what exactly does one talk about when conversing with Nazis / white supremacists, etc? To engage them in conversation is to entertain the possibility that there is some degree of merit in what they have to say. It normalizes it. That is just not the case.

    I don’t see it as trying to convince them – their views are irrational and no rational conversation is going to change that. And if they’re personally violent I’m all for responding with violence.

    But if they’re not being violent, the danger is that they’re trying to convert others to their insanity, and those others are who the talking is aimed at. And if you’re trying to stop the spread of something like Nazi’s (or gangs trying to redress a long history of oppression with violence – a big problem right now among the youth in native communities), your best bet by far is to talk. Again, not because you’re going to convince someone that filled with hate with words, but because you have a much better chance of convincing those they’re trying to recruit. Responding to a recruiter (Nazi or gang) by some equivalent of a punch in the face changes it to an equation of violence all around, and is more likely to create a link between the person you punched and the potential (meaning already angry for one reason or another) recruitee. Trust me, I’ve seen this play out, both on and off the reservation.

    Most people won’t be at all interested by the sh*t the recruiter is saying. But there are always some who are going to be susceptible, and those are why talking is important. Not nice (how did you put it, kumbahya) talk, but tough, real talk about how things are and where that recruitment leads. If that means insulting the recruiter then that’s fine, they’re not the intended audience, its not a question of being nice to them, just on painting the real picture for the angry young folk who might start to believe the romantic adventure story they’re being told, and offering better options.

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  118. Eric Florack says:

    The concept of “hate speech” is generally promoted by people who can’t control the conversation by more logical means.

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  119. James Pearce says:

    @Pch101:

    The air remains thin up on Planet Pearce.

    As I look out at the Rocky Mountains over the Denver skyline, all I can say is, “Yeah…yeah, it is.”

    @HarvardLaw92:

    You seem to be approaching this from the viewpoint that she has some sort of unequivocal right to speak which the university may deny to her only under the most egregious of circumstances.

    Not at all.

    Her speech at the university is the university’s prerogative, and they would be justified canceling or rescheduling it, not just for public safety reasons, but for minor reasons like they wanted to do something else that night.

    What I’m challenging is this:

    There is no constitutional right to hold an event whenever you feel like it without any regard for traffic management, crowd control, etc.

    You do have a constitutional right to hold an event whenever you feel like it. Your right to hold an event is subject to certain restrictions, yes.

    But I’m not the type to say a restricted right is a right that doesn’t exist. PCH, on the other hand: “There is no constitutional right….”

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  120. Pch101 says:

    @James Pearce:

    At this rate, you and reality are never going to be on speaking terms.

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  121. James Pearce says:

    @Pch101: Can’t you try to have a conversation when you’re challenged?

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  122. Pch101 says:

    @James Pearce:

    Why can’t you learn how to read?

    Why can’t you figure out the difference between a fact and your wishful thinking?

    When I said, “There is no constitutional right to hold an event whenever you feel like it without any regard for traffic management, crowd control, etc.”, I was simply stating a fact. That was not an opinion, and going round and round with you ad nauseum about it will not alter that fact one whit.

    You are trying to turn your ignorance of facts into my problem. No thanks.

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  123. DrDaveT says:

    @Doug Mataconis:

    I’m arguing that as a public university, they are subject to the requirements of the First Amendment.

    OK, here’s an ignorant non-lawyer question:

    The First Amendment limits what laws Congress can pass. The policies of public universities are set by the several states, and do not involve Congress passing any laws. Is there a body of SCOTUS interpretation that essentially passes the 1A down to the states, and from legislation to regulations to policies?

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  124. Pch101 says:

    @DrDaveT:

    Originally, the Bill of Rights applied only to the relationships between (a) the federal government and the states and (b) the federal government and the people.

    Since then, almost all of those amendments have been “incorporated” so that there are also protections between (c) other levels of government and the people. So yes, the state does have to respect your First Amendment rights.

    https://www.law.cornell.edu/wex/incorporation_doctrine

    But of course, those rights are not absolute. And the Seventh Amendment has never been incorporated.

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  125. DrDaveT says:

    @Eric Florack:

    The concept of “hate speech” is generally promoted by people who can’t control the conversation by more logical means.

    Denial of the concept of “hate speech” is generally found in those who deny other established facts, like AGW, racial prejudice, sexism, homophobia, the vacuity of “trickle down” economic theories, evolution by natural selection, etc.

    …But you have inadvertently seized upon a kernel of truth. It is precisely because sexists, racists, Nazis, Islamophobes, and Austrian economists are NOT susceptible to logic or empirical evidence that we need actual laws with teeth curbing their irrational attacks on various historically oppressed subgroups. They aren’t going to be convinced by facts or logic to stop hurting people for no good reason.

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  126. DrDaveT says:

    @Pch101:

    So yes, the state does have to respect your First Amendment rights.

    Thanks. That covers the state-vs-federal aspect. I assume there’s also case law somewhere that university policies are effectively ‘legislation’ for purposes of 1st Amendment questions? Executive vs. legislative was the other half of my original question.

    And I assume that the usual time-place-and-manner caveats apply?

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  127. Pch101 says:

    @DrDaveT:

    In my opinion, there is no probably First Amendment issue here. There have been two brawls/ riots in Berkeley over the last two months, and I believe them when they claim that they are trying to avoid a third. Delaying an event in order to prepare for and avoid potential problems is not unreasonable.

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  128. Franklin says:

    @Bob The Arqubusier: “they can’t exercise basic rights”

    Getting paid to make a speech without any chance of rescheduling or cancellation is to “exercise basic rights”?

    You must have misread my post, because your response made zero sense. Either that or you really think I can force Berkeley to accommodate me as I make a speech about whatever. Because why? Because I pay taxes or something?

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  129. wr says:

    @Doug Mataconis: “that they be given “trigger warnings” or “safe spaces” to shield them from ideas that they disagree with is overwhelmingly coming from the left.”

    Sure. And the idea that professors should be taped, and then those tapes turned over to a central authority so that if they turn out to be liberal the professors can be fired, is overwhelmingly coming from the right.

    In fact, there is only one side that has proposed that no more Democrats should be hired at public universities, and that is the Republican legislature in Wisconsin.

    So yes – liberal teenagers are making stupid arguments against free speech on campus. And conservative legislators are trying to pass laws saying that only people with a certain political point of view should be allowed to teach.

    Interesting which one troubles you.

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  130. Gustopher says:

    On the subject of free speech, Kansas state law requires doctors to tell patients that abortion can lead to PTSD, infertility and cancer, despite there being no credible evidence of ofmany of these. Many states have similar laws.

    I would think it’s a much greater violation of the First Amendment’s free speech protections to coerce inaccurate speech from doctors, than for a conservative blowhard to not be able to speak at the time and venue of her choosing.

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  131. Just 'nutha ig'nint cracker says:

    @Gustopher:

    What can you make of the Trump administration being filled with Nazi approving hangers-on, while Trump delegates everything from Mid East Peace to reducing paper clip expenses to his Jewish son-in-law?

    Trump is simply zoomin’ his audience. I no longer assume that I know what he believes–I’m not even sure if he believes anything other than that he and his daughter are the 2 greatest people on the face of the earth today. What he says is at any given moment is a pitch directed to some audience–probably most of it to his loyal supporters. And judging by whatever his name is’s latest persona writes, they are fine with being zoomed.

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  132. @DrDaveT:

    The First Amendment has been incorporated to apply to the states via the 14th Amendment.

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  133. DrDaveT says:

    @Pch101:

    In my opinion, there is no probably First Amendment issue here.

    Sorry, I should have made it clear that I wasn’t claiming there was. I’m trying to understand the context of Doug’s focus on the difference between public and private universities.

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  134. Kylopod says:

    @Gustopher:

    What can you make of the Trump administration being filled with Nazi approving hangers-on, while Trump delegates everything from Mid East Peace to reducing paper clip expenses to his Jewish son-in-law?

    This isn’t as bizarre as it might seem on first glance, and it isn’t just a case of Trump’s ideological incoherence. In recent years some portions of the white nationalist movement have attempted to forge ties with certain parts of the Jewish Right. Jared Taylor’s American Renaissance conference has featured Jewish speakers as well as anti-Semitic ones. (As you can imagine, the two don’t always get along.) But it’s a reflection of several trends, including (a) the desire of many WNs to infiltrate the mainstream (b) the increasing assimilation of Jews in the modern Western world (c) the right’s move away from overt anti-Semitism, and toward targeting other groups, most notably Muslims and Latinos.

    The contradictions this entails are exemplified well by Breitbart. Not only is the website named for a man who was himself nominally Jewish (actually, an adoptee of secular Jewish parents), but the two most oft-cited examples of the site’s anti-Semitism–a piece describing Bill Kristol as a “renegade Jew,” and another that said “hell hath no fury like a Polish, Jewish, American elitist scorned” in reference to Anne Applebaum–were both written by Jews. This fact is often cited by people defending Breitbart against charges of anti-Semitism, but that’s a dangerous fallacy that misunderstands the nature of prejudice. First of all, Jews are perfectly capable of being anti-Semitic. The term “self-hating Jew” may be overused, but it’s a real phenomenon. (And the equivalent exists among blacks, Latinos, and every other group that has ever been oppressed.) Second, there are Jews who are perfectly capable of collaborating with anti-Semites when they believe it is in their interests. And vice versa, of course.

    The result of all this is a group that’s philo-Semitic enough to attract some Jews, but anti-Semitic enough to avoid scaring away its more traditional members. What this usually amounts to is aggressively pro-Israel rhetoric married to talk about shadowy “globalists” pulling the strings and an appropriate amount of Holocaust minimization, with just enough plausible deniability to get away with it. Trump’s campaign and administration have walked this tightrope from the beginning, and you see it too with Marine Le Pen (whose father was overtly anti-Semitic, she not quite as overt). It’s definitely true that neither Trump nor Le Pen is anywhere near as anti-Jewish as they are anti-Muslim, but they stand over a coalition that includes many who are both–and they well know it.

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  135. @DrDaveT:

    I’m trying to understand the context of Doug’s focus on the difference between public and private universities.

    It’s quite simple. If they are public universities, they are government entities and therefore subject to the strictures of the First Amendment. Private universities are not government entities, even though they may receive Federal assistance or process Federal dollars through things such as student loans, and therefore not subject to the First Amendment at all.

    That doesn’t mean there are no permissible actions that public universities can take, of course. The Supreme Court has long held that governments may impose reasonable time, place, and manner regulations on speech (i.e., requiring people who want to hold a rally to get a permit or to restrict the areas in which they gather so as not to overly burden the general public or policy, or restrictions on speaking at a all such as a “gag order” issued by a Judge in a controversial criminal case or a divorce hearing involving children). It does mean that those restrictions have to be reasonably related to the professed public safety or other concerns and that they must be content neutral. That’s why a predominantly Jewish Villiage in Illinois couldn’t ban a group of Neo-Nazis from marching, or why Columbia, South Carolina couldn’t bar the KKK from gathering at the S.C. State House grounds two years ago.

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  136. DrDaveT says:

    @Doug Mataconis:

    It’s quite simple. If they are public universities, they are government entities and therefore subject to the strictures of the First Amendment.

    Yes, I get that. What I’m trying to get someone to explain to me is what ARE “the strictures of the First Amendment” on the Executive branch? How has “…shall make no law…” been interpreted to apply to the parts of the government that don’t actually make laws?

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  137. @DrDaveT:

    The Supreme Court has generally held that the strictures of the First Amendment apply to all branches of government, not just Congress, and that it includes actions be Executive authorities including agencies and law enforcement.

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  138. Matt says:

    @Bob The Arqubusier: Aww poor baby can’t handle a “special snowflake” questioning your delusional talking points.

    So I’ve always wondered how people like Bob account for their own existence or that of young conservatives if all colleges are really as they say..Well in Bob’s case maybe he never went to college to begin with so he was spared the EBIL LIBRUL BRAINWASHING EXPERIENCE!~!!!

    It’s interesting how all of Bob’s “enemies’ are monolithic in actions and thought. I can’t help but doubt that Bob thinks the same of his side.

    .

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  139. Tyrell says:

    @HarvardLaw92: Look at the fiasco at Middlebury College. A speaker and instructor were hospitalized after being beaten by outside hooligans and thugs. At Dartmouth last year the BLM barged into the library, disrupted studying, and proceeded to harass, threaten, assault, and push around students and employees. Sick ! Weird ! No arrests of these dastardly criminals and misfits were made.
    Now all the riots at Berkeley! Sounds like some administrators need to show some backbone; instead of placating criminals.

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