“Hate speech is excluded from protection,” CNN anchor Chris Cuomo tweeted last year, echoing a dangerously common misconception. “Hate speech isn’t free speech,” people say, assuming they have a right not to hear whatever they consider hateful language and ideas. Government officials sometimes share this view: The Mayor of West Hollywood confirmed to Eugene Volokh that she would not issue a special events permit for a Donald Trump rally so long as he trafficked in hate, contrary to the “values and ideals” of the West Hollywood community
But you don’t have to indulge in allegedly hateful speech to violate questionable local laws: In Washington D.C., an employer who fails to call a transgender employee by the employee’s preferred pronouns, including “ze,” “zir,” or “they,” may be liable for harassment, as Hans Bader explains. The New York City Commission on Human Rights has issued similar mandates, applying broadly to employers, landlords and businesses, meaning that customers and tenants, as well as employees, have a “human right” to regulate ordinary speech used in ordinary commercial transactions.
“(P)eople can basically force us — on pain of massive legal liability — to say what they want us to say, whether or not we want to endorse the political message associated with that term, and whether or not we think it’s a lie,” Volokh laments. “We have to use the person’s ‘preferred … pronoun and title,’ whatever those preferences might be. Some people could say they prefer ‘glugga’ just as well as saying ‘ze’.”
Progressive speech policing has moved off campus, in a trend as alarming as it is unsurprising. College and university speech codes conflating allegedly offensive speech and discriminatory conduct date back a quarter century. They partly reflect hostility toward unwelcome speech spawned by popular therapies of the 1980’s that equated verbal and physical abuse and by the feminist anti-porn movement, which equated pornography with rape and declared misogynist speech a civil rights violation.
By now, generations of students have been taught that unwelcome speech isn’t speech but discriminatory “verbal conduct;” these days, it’s even condemned as violence. (When I quoted the word “nigger” instead of referencing it by an initial during a panel on free speech while discussing Huck Finn, I was accused of committing an act of racial violence.) Who decides when speech is not speech but abusive or violent conduct? The offended listeners — if the listeners belong to disadvantaged groups. Their subjective reactions are the standard by which the right to speak is judged.
Again, this ideology dates back decades. So, the first wave of students to imbibe its lessons is entering middle age. Some have remained in academia, as faculty and administrators, partners in campus censorship. Others have assumed influential positions in the wider world, including the federal bureaucracy.
Under the direction of Catherine Llhamon, Amherst, ‘93, Yale Law, ‘96, the federal Education Department’s Office for Civil Rights has continued conflating sexual harassment (including speech) and sexual misconduct, while depriving accused students of due process rights in campus disciplinary proceedings.
The Justice Department’s Civil Rights Division, led by Vanita Gutpa, Yale, ‘96, NYU Law, 2001, recently issued a remarkable order to the University of New Mexico (a public institution) requiring it to violate the First Amendment by investigating instances of “unwelcome conduct of a sexual nature,” including the proverbial, “verbal conduct,” as harassment whether or not they “cause a hostile environment or are quid pro quo.” As the Foundation for Individual Rights in Education (FIRE) observes, the university is required to investigate “all speech of a sexual nature that someone subjectively finds unwelcome, even if that speech is protected by the First Amendment.”
Censors Coming from ACLU Staff
It’s worth noting that both Llhamon and Gupta are former ACLU staff attorneys. (Gupta, who has an impressive record on criminal justice reform, was Deputy Legal Director in the national office.) Whatever values they absorbed at the ACLU did not, it seems, include a firm commitment to free speech (or, in Llhamon’s case, due process). Indeed, one measure of censorship’s embrace by progressives outside academia is the national ACLU’s relative silence in the face of the free speech crisis on and off campus.
Some state affiliates remain pockets of free speech advocacy, and (following early missteps) the national office has mounted strong challenges to security state abuses. But as Harvey Silverglate sadly observes, “The national ACLU Board and Staff are nowhere to be seen in the increasingly difficult battle to protect First Amendment freedom of expression rights. This is especially so in areas where the ACLU, more and more, pursues a political or social agenda.”
That agenda, and the equation of allegedly hateful speech — as defined by aggrieved listeners — with discriminatory conduct practically sanctifies the heckler’s veto. And it too is gaining acceptance off campus. In a thoughtful exchange at reason.com, Black Lives Matter organizer DeRay McKesson argues that the heckler’s veto is an exercise in free speech, worthy of protection. In this
view, the loudest voices win, I guess. “They always do,” hecklers might respond.
The Limits of Heckling
I don’t share this vision of free speech, although I understand it. If you believe the dominant discourse in your community systematically ignores your values and concerns, you may consider shouting it down your only option. But free speech can’t merely mean the right to say what people don’t mind hearing. And heckling doesn’t always, or often, stop at shouting, especially when metaphors about the “violence of the word” are taken literally, thus rationalizing violence in response to words.
Right-wing provocateur Milos Yiannopoulos was not just shouted down but assaulted during an appearance at DePaul University. As reason.com observed, students justified their violent actions by declaring that Yiannoloupos “spreads hate and violence.”
In its most extreme and virulent form, the heckler’s veto devolves into an assassin’s veto, and even that has evoked some measure of understanding from grown-up elites, who should surely know better. When PEN bestowed its 2015 Freedom of Expression Courage Award on the surviving staff at Charlie Hedbo, hundreds of PEN members protested. After issuing relatively perfunctory condemnations of murder, over 200 eminent writers sharply criticized Charlie Hedbo for satirizing disadvantaged, vulnerable groups of people.
“To the section of the French population that is already marginalized, embattled, and victimized, a population that is shaped by the legacy of France’s various colonial enterprises, and that contains a large percentage of devout Muslims, Charlie Hebdo’s cartoons of the Prophet must be seen as being intended to cause further humiliation and suffering.”
Cartoonist Gary Trudeau joined in this excoriation of Charlie Hedbo’s murdered satirists: “By punching downward, by attacking a powerless, disenfranchised minority with crude, vulgar drawings closer to graffiti than cartoons, Charlie wandered into the realm of hate speech, which in France is only illegal if it directly incites violence. Well, voila—the 7 million copies that were published following the killings did exactly that, triggering violent protests across the Muslim world, including one in Niger, in which ten people died.”
These statements accusing Charlie Hedbo of verbal abuse and blaming it for the violent acts of an offended audience, read like excerpts from a college newspaper column justifying shout downs or assaults on a presumptively hateful speaker. They make clear that outside academia, some accomplished adults will join undergraduates in framing free speech as a potential source of oppression — a privilege or weapon used by the powerful to “silence” the relatively powerless.
Not surprisingly, corporate speech rights, on the increase, generate increasing concern. The political speech and associational rights of non-profit as well as business corporations are primary targets of progressive wrath (despite the fact that incorporated advocacy groups give voice to millions of ordinary people.) So are the rights of corporate “climate deniers” and associates. But, as the Charlie Hedbo protests showed, any individual or publication that speaks “offensively” from a perceived position of power is suspect.
Words are weapons, progressive censors argue, and they’re right, however inadvertently. Words are weapons; that’s why we protect them. Speech is the ideal weapon of non-violent political combat, most essential to the relatively powerless. Virtually every movement for social change has relied on politically weaponized speech, including today’s student protest and civil rights movements. Progressives might agree, if only elites would engage in some unilateral disarmament. “Power and prestige are elements that must be recognized in considering almost any form of discourse, including satire,” PEN’s Charlie Hedbo protesters insisted. “The inequities between the person holding the pen and the subject fixed on paper by that pen cannot, and must not, be ignored.”
Of course, progressives are not alone in supporting censorship. It is a non-partisan vice, evident today in across the aisle support for security state speech surveillance. The nation has also endured authoritarian assaults on dissent emanating primarily from the right, notably during 20th century red scares, which had particularly chilling effects in academia. Current conservative governors in Wisconsin and North Carolina have mounted controversial political attacks on state university systems, while the emerging Republican platform condemns pornography (whatever that is) as a “public menace” and calls for theocratic alignment of law with “God-given, natural rights” (as defined, I suppose, by Republicans.) I’ve focused on contemporary left wing censorship partly because it’s increasingly influential and partly because censorship is now embedded in the progressive ethos, as an essential weapon against inequality.
PEN’s protesters called for self-censorship, but demonizing speakers who fail to censor themselves effectively excuses and encourages their censorship by the state. (Gary Trudeau, for one, apparently approves of French laws criminalizing whatever authorities deem hate speech.) Students who protest offensive or presumptively traumatizing “verbal conduct” are indeed exercising their own speech rights, as they claim.
But in insisting that those rights require administrators to censor other people’s speech, they’re not exercising rights so much as seeking anti-democratic power. Progressive policymakers pledge allegiance to constitutional values and rights, while defining harassment broadly, according to the unpredictable, subjective reactions of any listeners labeled disadvantaged.
Old-fashioned liberals and civil libertarians do strongly contest this view of censorship as a civil right, but they seem a dwindling, aging minority — unlikely architects of the future. In providing constitutional protection to allegedly hateful speech, the U.S. is an outlier among Western nations. You have to wonder how long it will remain one.