Free Speech Assignment: Understanding Why Messy Speech Matters

The year 2017 was absolutely wild for the First Amendment. University campuses across America became battlegrounds in a culture war that many of us are still trying to understand. Right here at the University of Nevada, Reno, two students found themselves at the center of the biggest free speech controversies we’d seen in years.

Peter Cytanovic became the poster child for white nationalism when that now-infamous photo of him snarling and holding a tiki torch at Charlottesville went viral. On the complete opposite side, Colin Kaepernick used his NFL platform to shine a light on police brutality and racial injustice by taking a knee during the national anthem. Both men became lightning rods for controversy because of their speech. People called for their expulsion, their careers to be destroyed, their voices silenced.

But here’s the thing that might surprise you: regardless of whether you agree with one of them, both of them, or neither, the First Amendment protects both of those men and their opinions from government censorship and retaliation. And honestly? That’s a really good thing. Let me explain why.

The Dangerous Appeal of Hate Speech Laws

It’s becoming trendy to call for weaker legal protections for speech. People want to criminalize “hate speech,” and I hear this a lot from folks on the left. Many progressives would love a world where Kaepernick could take a knee without worrying about government retaliation, but where a public university could still expel someone like Cytanovic for his views.

This thinking is dangerous, and here’s why.

I’m progressive myself. It’s not hard for me to choose between white nationalism and racial justice. The first is disgusting and racist. The other is a demand for basic human equality. But what happens when we give the government the power to decide which of those men was “too hateful” to speak?

Look at our recent political history. We had a president who called Charlottesville marchers “very fine people” while calling Black NFL players “sons of bitches.” Your idea of “hate speech” might not match the government’s definition. Mine sure doesn’t. And even if you agreed with every decision made by one administration, are you confident the next one will share your worldview? You shouldn’t be.

Why Anti-Authoritarianism Matters

That’s exactly why I’m a true believer in the First Amendment. I’m fundamentally anti-authoritarian. History shows us that governments have consistently used their power to silence people who speak truth to power. Because I want students everywhere to be able to take a knee without fear of government censorship, I know we have to protect our robust First Amendment – even when it covers speech that makes us sick.

Debunking Three Common Free Speech Myths

Even though I’m a free speech attorney, I find many of the usual talking points about free speech pretty unsatisfying. Let me break down three persistent myths and hopefully give you some practical tips for using your free speech rights powerfully and strategically.

Myth #1: “Sticks and Stones May Break My Bones, But Words Will Never Hurt Me”

Does any adult actually believe this kindergarten saying? It’s obviously false. I became a free speech attorney precisely because I believe words have incredible power. We can’t protect free speech by pretending it doesn’t matter.

So why do we teach this obvious lie to kids? Because humans can be cruel. When children face taunts and bullying, we want them to feel empowered, not crushed by injustice.

Think about what happened at UC Berkeley in February 2017. Milo Yiannopoulos had a planned speech. Students and community members lost their minds. There were protests, riots, fires. The administration canceled his talk. In April, the same thing happened with Ann Coulter. Officials predicted riots and canceled her event too.

Both of these provocateurs spent the rest of 2017 playing victims of liberal censorship. The media ate it up completely. They got way more attention for being “silenced” than they ever would have gotten for their actual views.

Here’s what professional provocateurs want: they want the campus community to try silencing them. Think of campus trolls like schoolyard bullies. Yes, their words definitely hurt. But how we respond to that hurt matters enormously. Trolls feed off censorship attempts. It gives them power and something to sell. You don’t have to play that game.

There’s power in hateful words, sure. But there’s also power in refusing to be goaded into a fight or to play the role of censor.

Myth #2: “Hate Speech Isn’t Protected by the First Amendment”

I hear younger people say this all the time, but it’s just not true. As recent political events should make crystal clear, “hate speech” is an incredibly flexible concept. Just this week, Spain arrested and charged someone with “hate speech” for calling cops “slackers” on Facebook. That’s what criticizing the government looks like without a First Amendment. “Hate speech” can easily become “speech that threatens the state.”

But we shouldn’t only protect speech out of paranoia. There’s a positive side here too. Our history shows the same First Amendment that protects hateful, racist speech has been used by civil rights advocates to protect historically vulnerable communities.

Consider Charles Brandenburg, an avowed racist convicted of “incitement to violence” for holding a KKK rally in Ohio in the late 1960s. His lawyers took the case to the Supreme Court, arguing his hateful ideas were constitutionally protected. The Court agreed that his vicious, genocidal talk about Jews and Black people was protected because it only fantasized about future violence. The Court decided that before the government can punish speech, there has to be immediate and specific risk of actual violence to a real person.

That result might upset you in isolation. But around the same time, NAACP leader Charles Evers gave a passionate speech advocating a boycott of racist, white-owned businesses. He promised he’d “break the damn neck” of any activist who broke the boycott. White business owners sued Evers and the NAACP for “incitement,” claiming his violent language led to riots.

The NAACP looked to the Brandenburg case. Those civil rights leaders appealed to the Supreme Court to ensure Evers got the same rights as a KKK member. And they won.

The Court boiled it down to this question: Are we talking about theoretical future violence, or is there immediate risk of harm to a real person? While there’s nothing equivalent about the KKK and the NAACP, from that legal perspective, these cases looked identical.

The Uneven Distribution of Rights

There’s good reason to be skeptical that rights extended to KKK members will actually trickle down to NAACP leaders. The hard truth is that every right in our society gets distributed to the privileged and powerful first. Americans didn’t get voting rights at the same time regardless of sex or race. Today, your rights during an arrest or your right to carry a gun don’t look the same for all races.

But would you say the answer to uneven distribution is eliminating the constitutional protections that let us fight the government when it violates them? Of course not. Distributing constitutional rights equally is a process. The First Amendment is no different.

It’s our job to ensure everyone benefits from the same level of constitutional protection, that our free speech rights are truly “indivisible.” Our First Amendment is necessary to ensure that people who challenge the government aren’t silenced, but that’s not sufficient to ensure justice. We have to do the rest of the work.

Myth #3: “Students Today Are Snowflakes”

Public schools and universities are governed by the First Amendment. That means they can’t just keep hateful people off campus because of their views. Black and Jewish students have had to face white supremacists on campus. Immigrant students have been demonized. Women have had to endure campus speakers calling feminism a cancer.

I guarantee most adults don’t have to walk past a group of people calling for their extermination on their way to work. I don’t think students are snowflakes. I think you’re incredibly tough.

When I tell you that trying to silence political enemies is wrong, it’s not because I think it shows weakness. It’s because I think it’s strategically stupid and strengthens your opponents. But if silencing hateful speech isn’t an option, what does empowerment look like in the face of hate?

Strategic Responses to Hateful Speech

Sometimes the answer is in your numbers. In August 2017, alt-right protesters planned a gathering at Boston Common, calling it the “Free Speech Rally.” Only dozens of permit holders showed up. But surrounding the Common were 40,000 people standing strong against racism. That massive counter-protest sent a powerful message of resistance – a blizzard of so-called snowflakes. And it exposed the foolishness of one group trying to own the “free speech” brand.

Sometimes all it takes is one person making a powerful statement. A few years ago, a musician in Charleston was appalled by a KKK rally in his hometown. Instead of trying to refute racist ideas, he just followed them around with a sousaphone, loudly playing oompah-oompah music. His message of protest was crystal clear without a single word. The marchers disbanded quickly when forced to peddle their message of hate over a goofy tuba line.

Strategic Tips for Exercising Free Speech Rights

I believe in the First Amendment because it’s our most powerful tool to keep the government from regulating the conversations that spark change in the world. If you want to keep having conversations that can change the world, you should embrace the First Amendment too – messiness and all.

Here are some practical truths about exercising your powerful First Amendment rights strategically:

Know your history. Remember that the same legal standard that has protected the most vile and hateful speakers has also protected civil rights and anti-war advocates.

Don’t silence your way out of a debate. Remember that provocateurs want you to play censor. If you know a speaker you disagree with or consider dangerous is coming to your campus, remember how counterproductive silencing tactics can be.

Dance to your own tune. You can decide when to counter-protest, when to stage an alternative event, and when to ignore ideas unworthy of debate. The choices you make for confronting or ignoring speech you hate can become benchmarks for how you handle conflict throughout your life.

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