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Fighting Words and Free Speech

Fighting Words and Free Speech

In the past few years on American college campuses we’ve seen canceled talks, violent protests, resignations of professors and administrators, and much more. But the events at Evergreen State College in the spring of 2017 still stand out as the most extreme of all the victimhood eruptions. There activists vilified and threatened Professor Bret Weinstein for objecting to a “Day of Absence” where whites were encouraged to leave campus. The administration sided with the activists, and at one point Weinstein had to teach his classes off campus when the police told him they couldn’t protect him. Eventually Weinstein left, but the college has faced declining enrollment and bad publicity since then.

But as Weinstein says in a recent Twitter thread, the college “refuses to comprehend what occurred, and so digs down, not out.”

Weinstein discusses a recent talk at Evergreen by civil rights attorney Alan Levine on “Campus Protests and the Fight against White Supremacy.” At the talk Levine portrayed attempts to silence and punish speech on campus not as illegal or even undesirable censorship, but as part of a noble struggle against racism. As Howard Dean did recently, in doing so he apparently smeared Nicholas and Erika Christakis and other critics of campus censorship.

But how did a civil rights attorney defend censorship? He did so by appealing to the Supreme Court’s “fighting words doctrine” and claiming that it allows universities to regulate offensive speech. Levine isn’t the first to invoke the fighting words doctrine in this manner, but he is wrong about what it says. And given the history of the doctrine, it’s also very strange to see the left invoking it.

“Fighting words” are indeed an official category of unprotected speech, along with obscenity, true threats, and some others. But the Chaplinsky v. New Hampshire decision in which the Supreme Court formulated the doctrine was the only time the Court has ever upheld a conviction for fighting words. In that case a man was convicted for insulting a police officer. This is hardly known as progressive decision, and subsequent rulings have undermined it enough that many scholars think of the fighting words doctrine as dead.

What’s also strange about the efforts of some contemporary activists to resurrect the fighting words doctrine is that the kinds of laws the Court was upholding in Chaplinsky have their origin in 19th-century honor culture. As Jeffrey Rosen explains, the laws worked as an indirect way of prohibiting dueling. Under the old honor code, certain kinds of insults demanded an aggressive response, so in addition to prohibiting the aggression, one way of preventing duels was to prohibit the insult. Legislatures thus passed laws not only against dueling, but also against provoking duels. They prohibited fighting words — words that in an honor culture would be expected to lead to violence.

Chaplinsky was a throwback to this era. As Rosen notes, even at the time of the decision, the culture had changed substantially:

The foundation of the fighting-words doctrine had collapsed long before the Supreme Court enshrined it as marginal constitutional law in 1942. The Chaplinsky Court defined fighting words as those that “men of common intelligence would understand would be words likely to cause an average addressee to fight.” In a culture based on honor, there was a consensus about the meaning and impact of fighting words. It was perfectly obvious that being called a liar would have provoked a 19th-century gentleman to insist on fighting a duel. But by the 1940s, no such consensus existed.

So the doctrine has seldom been used. And as the Foundation for Individual Rights in Education (FIRE) points out, “As the Law is understood today, it is obvious that a citizen calling a policeman a ‘fascist’ [the issue in Chaplinsky] is protected by the First Amendment.”

Now the culture is changing again. In The Rise of Victimhood Culture, Jason Manning and I argue that the new emerging victimhood culture among campus activists has at least one thing in common with the honor cultures of the past — sensitivity to slight. Thus we see current activists on the left repurposing Chaplinsky and the fighting words doctrine. Once again, certain kinds of offense just can’t be tolerated.

Victimhood Culture and Howard Dean

Victimhood Culture and Howard Dean

The clash between dignity culture and honor culture that Jason Manning and I discuss in our book is not the familiar clash between between left and right. The new victimhood culture comes from the campus left, to be sure, but many on the left reject the new culture’s focus on minor offenses, or the blurring of the boundary between speech and violence. Barack Obama for example, has spoken out against it, saying that he doesn’t agree “that you, when you become students at colleges, have to be coddled and protected from different points of view.”

It is perhaps strange, then, that Howard Dean, former governor of Vermont, former Democratic presidential candidate, seems to embrace even the extreme manifestations of the new culture, such as the attempts to prevent conservatives from speaking on campus or to punish people for even mild objections to the campus activists’ aims and tactics.

Here is Dean, starting at 26:47, recently defending the students who vilified Yale professors Nicholas and Erika Christakis in the fall of 2015:

You might recall that the Christakises were the headmasters of one of Yale’s residential colleges until students became outraged that Erika wrote an email questioning whether the university needed to be involved in policing Halloween costumes. She suggested that maybe students could handle offensive costumes themselves through conversations with one another, through self-censure, and social norming. At one point a group of students confronted, berated, and cursed at Nicholas, and the uproar eventually led the Christakises to leave their positions as headmasters after the end of the term.

Dean’s summary of the events is one falsehood after another. He mischaracterizes the content of Erika Christakis’s email, and, laughably, claims he later found out that Nicholas Christakis was the leader of the William F. Buckley Society at Yale, which Dean says he “thought was rather fitting.” (Christakis is a lifelong liberal and was not the leader of the William F. Buckley Society.)

Nicholas Christakis pointed out these and Dean’s many other errors in a series of tweets.

Of course, anyone might just half-remember a story and not realize it, but this isn’t the first time he’s gotten things wrong in defending the extreme manifestations of campus victimhood culture. During a controversy over a planned talk by Ann Coulter at UC Berkeley, last April, for example, this is what Dean tweeted:

Here again Dean was factually wrong. The Supreme Court has been clear. But it’s remarkable that these kind of statements now come from mainstream political figures and journalists, not just campus radicals. Whether out of confusion or conviction, or more likely, some combination, Howard Dean believes Erika Christakis’s congenial, thoughtful email deserved angry denunciations and more, and he even rejects longstanding first amendment jurisprudence. Victimhood culture is on the march.

(Photo by Matt Wright, CC BY-SA 3.0,
Free Speech as Disarmament

Free Speech as Disarmament

Other people are wrong. A lot.

Other people have crazy and dangerous ideas. They express horrid and immoral beliefs. They argue for destructive policies, and sometimes sway people into adopting them. We cite scientific evidence; they cite debunked pseudoscience. We express insightful criticism and give powerful arguments; they engage in malicious attacks and put up smokescreens of obfuscation.

Why should we let other people speak, even when their ideas are wrong, loathsome, and hurtful?

The question presupposes our ability to control whether they speak or not. That is, it assumes the power to police speech and silence speech we do not like. Doing that effectively requires certain social arrangements. It requires legal institutions constructed and charged with regulating speech, procedures for reporting or discovering offenses, methods for punishing and silencing offenders. If there are existing rules – such as constitutional protections for free speech – they must be dismantled or bypassed. And of course all this social machinery requires people empowered to do the myriad tasks necessary to keep the system working.

If one wants to make war, one needs to construct weapons, and this is equally so for the battle against bad ideas and hateful speech.

Someone committed to battling destructive speech might well urge for the creation of these institutional weapons. Once we have them, they think, we can finally achieve victory. Sure, we will allow reasonable debate – we’re just banishing the unreasonable ideas of the zealots and bigots. Our rational, moral, humane ideas will have the floor.

Few people are very good at thinking two or three moves ahead on the chessboard. So many of those who enthusiastically call for the creation and proliferation of anti-speech weaponry have not given much thought to what will happen if their enemies gain control over it. What if we aren’t the ones who get to decide what is reasonable debate, and what is unreasonable science denial? What if it is the people who disagree with us who get to make the distinction between an acceptable criticism and unacceptable hate speech?

Consider a recent case from Spain:

A Catalan high school teacher, Manel Riu, appeared in court on Thursday accused of hate speech for his tweets and Facebook posts criticizing Spain, government members and the Guardia Civil police. Over a hundred people escorted him to court in Tremp, west of Catalonia, where he denied any wrongdoing and asked for the case’s dismissal.
The case against Riu includes 119 tweets gathered by the Guardia Civil. Most of them can still be found online in his account (@Mireiagalindo). On November 9, he tweeted: “I don’t believe in God, or in the soul, or eternal life, or heaven, or hell… Actually, I do believe in hell: hell is Spain.”

The article gives us no idea if Sr. Riu has ever taken a position on free speech or on hate speech laws. But one could easily imagine someone in his position having vocally supported punishments for hate speech on the assumption that they would mostly be employed against people who said hurtful things about, say, Muslims or Jews. How shocked would such a person be to find such social weaponry turned against themselves?

Similarly, in a recent interview between psychologist Jordan B. Peterson and British television reporter Cathy Newman, Newman challenged Peterson to explain why his freedom of speech should trump transgender people’s right not to be offended. His response was to point out that her interview had been uncomfortable for him – was she not risking offense with her speech? Newman seemed genuinely taken aback, as if she had not considered that a rule against giving offense could ever constrain her speech as well.

Perhaps many of those who urge for stronger weapons against speech cannot imagine that they, or people who agree with them on every matter of importance, will not be the ones in charge of them. Perhaps they cannot imagine the day will come when their own beliefs are the ones deemed controversial and offensive, or false and heretical. Perhaps they believe it a law of history that only good, intelligent people like themselves get to control the institutional machinery of society. Perhaps they are not that familiar with history at all.

For others, the possibility that anti-speech weaponry might be used against them in the future is enough to convince them that it should not be created in the first place. Despite the strong temptation to use force to silence those people for once and for all, they think along the lines of Sir Thomas Moore in A Man for All Seasons: If you tear down free speech protections in your pursuit of the devil, what do you do when he turns ’round on you? They might conclude that the game of eradicating intolerable speech is like tic-tac-toe or thermonuclear warfare: The only winning move is not to play.

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