12.

SPEECH THAT IS NON–SPEECH

Society has an interest in civility for many reasons but most especially because ideas are unlikely to find acceptance in uncivil environments. . . . The First Amendment does not entitle a speaker to violate the prevailing social norms of civilized life.

THERE ARE CATEGORIES of proscribed speech that do not receive First Amendment protection at all. The failure of laissez-faire forces the government to step in and declassify some speech as non-speech. The invisible hand does not deliver on its claimed efficiencies. Externalities and transaction costs arise. The government regulates by denying entry into the marketplace of ideas.

Speech-related market failures are often found in the context of emergency situations. In such instances, courts regard speech to be of such low value that regulating even the content of what is being said does not present a constitutional problem. An entire doctrine of “low-value speech” has evolved that essentially created a two-tiered category: speech that has social value and speech that does not. As law professor Genevieve Lakier has written, “The doctrine of low-value speech allows the government to do what it is not supposed to be able to do: that is, to remove ideas it dislikes from public circulation in the marketplace.”⁹⁰

Courts are not averse to acting as referees when it comes to pumping the breaks on free speech. And they do not necessarily object to wading into the constitutional arena even when it means restricting the content of the speech. Occasionally, judges play favorites—privileging some ideas over others, acting with full confidence that they can evaluate the “seriousness” of the ideas presented, their “societal costs,” or whether they even amount to ideas at all.⁹¹

The Supreme Court already makes distinctions between full-fledged ideas and speech unworthy of First Amendment protection. Unworthiness is labeled as having low value—meaning that First Amendment safeguards do not apply to speech that presents more social costs than it is worth. Take obscenity, for example. The Court has ruled that “[a]ll ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guarantees . . . [b]ut implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”⁹²

Obviously, there is a standard for ideas—and the standard begins with the imperative that they have “redeeming social importance.” Does cross-burning? For that matter, does flag-burning? In later obscenity cases, the Court established the Miller test for distinguishing what has value and what is nothing but smut. The test was designed to determine whether the offending material lacks “serious literary, artistic, political, or scientific value.”⁹³ The justices on the Supreme Court are not necessarily snobs, but they do have some taste, and the Miller test demonstrated that the Court at least knew what to look for. And one thing is for certain: The Supreme Court has little regard for speech that originates from and appeals to low-value, guttural sensibilities. It believes that the First Amendment was designed for a more valuable purpose: to uphold speech that has serious literary, artistic, political, or scientific value. What does not make the grade is speech with an avowed purpose to cause harm to another. Such speech is without redeeming social importance, and no worthy ideas can possibly spring from it.

Without at least some government intervention, all markets fail—and that is especially true in the marketplace of ideas. To account for monopolies dominated by thugs and speech that produces no truth, the Supreme Court created categories of speech that simply cannot avail themselves of the First Amendment protection reserved for actual ideas.

In Chaplinsky v. New Hampshire, decided in 1942, the Court held that “[t]here are certain well-defined and narrowly limited classes of speech, the prosecution and punishment of which have never been thought to raise any constitutional problems. These include the lewd and obscene, the profane, the libelous and the insulting or ‘fighting words’—those by which their very utterance inflict injury or tend to incite an immediate breach of the peace.”⁹⁴ The Court went further in explaining what makes these proscribed categories so anathema to free speech—why they default to the status of non-speech once they enter the public sphere: “[S]ome utterances are no essential part of the exposition of ideas, and are of such slight social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”⁹⁵ The Court then quoted Cantwell v. Connecticut, decided two years earlier, which ruled that, “[r]esort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution.”⁹⁶

The language of Chaplinsky says a great deal about why free speech should not be limitless. Courts are not powerless to regulate low-value speech that has no business in the marketplace of ideas. Judges have an obligation to categorically state, as a matter of law, that when “utterances are no essential part of the exposition of ideas, and are of such slight social value as a step to the truth,” the First Amendment guarantees that apply to sincere speakers are absolutely not available to those who speak in a manner that clearly deteriorates the “social interest in order and morality.” Society has an interest in civility for many reasons, but most especially because ideas are unlikely to find acceptance in uncivil environments.

Other Supreme Court opinions have also noted civility as a constitutional commitment. A few months after Chaplinsky was decided, the Court once again explained that freedom of expression can never be completely absolute because the government must “ensure orderly living, without which constitutional guarantees of civil liberties would be a mockery.”⁹⁷ Even in the Supreme Court decision that upheld the right to burn the American flag as an act of political expression, the Court recognized that the “First Amendment does not guarantee that other concepts virtually sacred to the Nation as a whole . . . will go unquestioned in the market-place of ideas.”⁹⁸

The Founding Fathers did not intend to omit human decency and mutual respect as affirmative duties of citizenship. The First Amendment does not entitle a speaker to violate the prevailing social norms of civilized life. The Founding Fathers imagined the First Amendment as elevating the quality of public debate. If a speaker refused to rise to the occasion and rejected all possibilities for civil discourse, then that speaker was on his or her own. The risk that speech might cause harm was his or her burden to bear. Citizenship is not a one-way street paved with rights without reciprocal obligation. Lakier observed in 2015 that “Chaplinsky made it possible for the government to prohibit speech not only when it threatened violence and disorder, but also when it violated dominant social norms of civility, piety, and decency—for example, by depicting sex in an obscene manner, or by speaking of others in an uncivil manner, or by addressing another in words calculated to cause offense.”⁹⁹

The language of Chaplinsky establishes reasonable limits for curtailing the abuses of the First Amendment. Low-value speech that does not contribute to the marketplace of ideas is not “part of the exposition of ideas,” and its exclusion “has never been thought to raise any constitutional problem.” And the truth-seeking agenda of the First Amendment is thwarted when what is being introduced into the marketplace of ideas has only “slight social value as a step to the truth.”¹⁰⁰ Chaplinsky does not mince words. It confronts directly the transaction costs of speech that has no legitimate claim to the marketplace of ideas. Those transaction costs include not just emergency situations that present a “clear and present danger,” but also speech that causes injury, incites violence and immediate breaches of the peace, along with speech that undermines civil society’s interest in public order and morality. Law professor Brian Leiter wrote what can best be described as a manifesto against the overprotection of free speech and concluded that, “Most non-mundane speech people engage in is largely worthless, and the world would be better off were it not expressed.”¹⁰¹

Requiring common decency and mutual respect before entering the marketplace of ideas does not erase liberty from the free speech equation. There is nothing wrong with demanding civility in a marketplace that ultimately depends on trust among participants. True ideas, after all, are born with the aim to persuade and inspire, not to spread fear and alienate. With respect to the heckler’s veto, Chief Justice Vinson wrote in Feiner v. New York in 1951 that “[i]t is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace.”¹⁰² And in the infamous “seven dirty words” case (which is popularly remembered as the words that George Carlin used in his comedic act and which then, because of the Supreme Court, transformed him into a free speech icon), the Court, in 1978, reasoned that “a requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication. There are few, if any, thoughts that cannot be expressed by the use of less offensive language.”¹⁰³

Is that really too much to ask? If you have something to say, deliver your communication in a form and manner calculated to change minds, choosing your words wisely so that they will be acceptable to the sensibilities of most people and will not be inconsistent with the norms of polite society. Disagreeing with an idea should be done in the spirit of a civilized, mutually respectful exchange. Ideas are, in essence, invitations. They should be presented with the hope of convincing open-minded listeners.

Ideas thrive only in environments that are conducive to intellectual engagement. As law professor Frederick Schauer once wrote, “Free speech is about a certain kind of environment in which we learn from each other, deliberate with each other, and engage in various forms of collective communicative activity. . . . [T]he actively hostile audience challenges not only the speaker but also the particular free-speech inspired legal and social rules according to which the speaker is protected in the first place.”¹⁰⁴

The pristine sanctity of the marketplace of ideas is deemed so inviolate, we have lost the commonsense wisdom that arose out of these earlier First Amendment cases. More often than not, the Chaplinsky standard is ignored and “utterances [that] are no essential part of the exposition of ideas” are typically treated as if they actually belong in the marketplace of ideas. We are told that ideas come in different forms and urged not to be too judgmental in dismissing them. Gangsta rap, for instance, is idea rich but indecently presented. It still qualifies under the First Amendment. Extremist groups, after all, have ideas—extreme and murderous though they may be. You just have to peel away all the layered hate. An entire theory of moral relativism exists to impose a judgment-free zone around the acceptability of ideas. Under this framework, all ideas are worthy of the First Amendment. The government must never be allowed infinite powers of censorship and the state policing of thought.

This makes no sense.

One wonders whether these fears are more imaginary than material. Is it really so difficult to label some forms of expression unfit for a public hearing? Writing on this subject, journalist Kalefa Sanneh observed that, “free-speech advocates need not pretend that every provocative utterance is a valuable contribution to a robust debate, or that it is impossible to make any distinctions between various kinds of speech.”¹⁰⁵

Perhaps we have finally reached the tipping point where the sanctity of the public sphere is deemed as important as a solitary citizen’s right to free speech. The public square, like all public accommodations, should be open and safe for common usage. Stronger measures must be taken to correct the imperfections of an unregulated marketplace of ideas. Writing about the way in which social media and Russian and Chinese hackers succeeded in hijacking the 2016 American presidential election by exploiting the freedoms of the First Amendment, law professor Tim Wu wrote, “It is time to recognize that the American political process and the marketplace for ideas are under attack, and that reinvigorating the First Amendment is vital. . . . Some might argue, based on the sophomoric premise that ‘more speech is better,’ that the current state of chaos is what the First Amendment intended. But no defensible free-speech tradition accepts harassment and threats as speech, treats foreign propaganda campaigns as legitimate debate or thinks that social-media bots ought to enjoy constitutional protection. A robust and unfiltered debate is one thing; corruption of debate itself is another. We have entered a far more dangerous place for the republic; its defense requires stronger protections for what we once called the public sphere.”¹⁰⁶

The marketplace of ideas is not some sacred, inviolable place that functions perfectly and produces costless outcomes. On the contrary, it is imbued with error, biases, prejudices, monopolies, harmful merchandise, transaction costs, and externalities aplenty. It is a mythological entity screaming for some sensible supervisory oversight to make sure that buyers and sellers are bidding on the very thing that this market is purporting to sell.

In November 2017, the president of Rutgers University in New Jersey, Robert Barchi, spoke at a town hall, sponsored by the student government, ostensibly about the right to free speech on a college campus. Rutgers had been the focus of unwanted media attention all related to three professors who had been accused of spreading anti-Semitic, homophobic, misogynistic social media postings, and anti-Israel misinformation, either on their social media platforms or through their academic writings and lectures.

Barchi used this opportunity to defend the three professors based on their First Amendment rights and the academic freedom granted to them as members of a university community. One of the professors, Michael Chikindas, who taught microbiology, wrote on social media that Judaism was “the most racist religion in the world.” He also blamed the Armenian genocide on Turkish Jews. Barchi noted that Chikindas made “crude jokes about Israel, Judaism, women, homosexuality, and a whole lot of things which most of us would find repugnant.” One of the other professors, Jabir Puar, in a 2016 lecture, stated that Israel used the bodies of “young Palestinian men . . . [to] mine for organs for scientific research.” The third professor, Mazen Adi, defended Palestinian terrorism in class and once stated that Israel had trafficked in children’s organs.

All of these claims are preposterously false and unbecoming of anyone purporting to be an academic and holding a position at a university.

After setting forth the complaint against these professors, each of whom had engaged in different forms of what most would describe as both hate speech and unprofessional scholarship, the president of Rutgers decided to lecture the audience on his understanding of the Bill of Rights. “On the other hand,” he said, referring specifically to Chikindas, “they are also things that are covered by his First Amendment right to free speech. You may not like what the guy says, but you have to like the fact that he can say it.”¹⁰⁷

If the purpose and effect of certain speech is to cause harm, spread lies, incite violence, and threaten and intimidate, then it is naked of ideas and unworthy of the First Amendment—most especially on a university campus. No, we do not “have to like” it, and the president of this university should not be enabling it, lecturing those who wonder why he is excusing and defending shoddy scholars who teach blatant falsehoods and treating their incompetence as a First Amendment issue rather than as grounds for termination. What is the meaning of such derangement in a public university?

In 1963, the Yale Political Union invited the segregationist governor from Alabama, George Wallace, to speak. A few weeks before his scheduled visit, the KKK bombed the 16th Street Baptist Church in Birmingham, Alabama, killing four African-American schoolgirls. Appearing outside the Alabama State Capitol building, Governor Wallace had once infamously declared, “Segregation now, segregation tomorrow, segregation forever!” Many blamed him (indirectly) for the church bombing.

The acting president of Yale at the time, Kingman Brewster Jr., and New Haven’s mayor, Richard C. Lee, rescinded the invitation, saying that Wallace was “officially unwelcome” at Yale.

Pauli Murray, a female African-American lawyer and civil rights activist pursuing a graduate degree at Yale Law School, wrote a letter to Brewster, urging him to allow Wallace to speak on campus and present his views. This might seem odd given that fifteen years earlier she spent a night in jail for refusing to sit on broken seats on a segregated bus in Virginia, and as a law student at Howard University she participated in sit-ins to integrate whites-only restaurants in Washington, D.C. Yet in her letter to Yale’s president, she wrote: “I would be among the first to picket such a meeting [referring to the planned Wallace visit],” and urged Brewster not to “compromise the tradition of freedom of speech and academic inquiry” by preventing Wallace from appearing on campus.

Brewster did not change his mind. It is unknown what consequence would have occurred had Wallace been granted a Yale audience. Might he have incited a riot? At that time, Wallace was a segregationist of the highest order, and despite the blame he received for the church bombing in Birmingham, he was not known as an instigator of imminent violence. For her part, Murray was a true free speech absolutist. She wrote to Brewster: “The possibility of violence is not sufficient reason in law to prevent an individual from exercising his constitutional right.” She was incorrect under the law, but she was perhaps right in thinking that Wallace’s opposition to racial integration was an opinion protected under the First Amendment. But what if the Wallace speech had actually taken place, and what if, in making his argument, he decided to toss a noose over a tree branch or burned a cross on Yale’s lawn? Those are surely not ideas—either in content or delivery—that the First Amendment was ever intended to protect.¹⁰⁸ Allowing such violence into the marketplace of ideas does not foreshadow First Amendment progress. It more accurately suggests that free speech has regressed as an ideal, something is amiss, and the First Amendment could benefit from a second look.