What Does Free Speech Actually Mean?

The First Amendment does not require Berkeley to protect Robles against the actions of others.

San Francisco Federal Court U.S. DistrictJudge Claudia Wilke

I found that this quote was used in several articles relating to the #MiloAtCal situation in Berkeley. After reading this, I have to ask myself if any of us understand what free speech means.

This post is my strongest effort to be as sober and moderate as possible in attempting to understand the concept of free speech.

Its my understanding that free speech is the government protected right that allows all individuals to express themselves freely, without government interference. It’s the mechanism by which the people, and our culture, decides which direction progress is.

Here I’m going to make a serious attempt to address the arguments against free speech, and what the reasonable limits of free speech should be.

Act 1, Scene 1 - Where is it Written?

The First Amendment as it reads,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.

First AmendmentU.S. Constitution

The perspective I hear from liberals is that conservatives have weaponized the free speech.

That free speech is specifically the standard which allows individuals to express themselves without government interference.

Liberals claim to believe that free speech doesn’t apply to private companies, social media, or people universities campuses.

I can’t imagine any of them really believe this. Since it is a long cry away from Mario Savio’s Free Speech movement, “To me, freedom of speech is something that represents the very dignity of what a human being is. . . .”

But let’s walk down this road and see where it goes.

Act 1, Scene 2 - Who is The Government?

In the United States, most public universities are state universities founded and operated by state government entities. Public universities generally rely on subsidies from their respective state government. They are treated as state entities for tax purposes. And even though the word “education” doesn’t appear in the U.S. Constitution, we have The United States Department of Education, a Cabinet-level department of the United States government executive branch.

Since the Fourteenth Amendment, the first amendment has been enforceable against the states and not just the federal government.

Still, the government is an abstraction of documents, buildings, and the people that compose it. So who exactly is the government?

Is it federal and state employees?
Is it professors employed by a state university?
Is it Trump criticizing journalists on Twitter?

It depends on your perspective.

Act 1, Scene 3 - At Universities, Who is it for?

The ACLU and Fire are organizations that defend free speech rights on college campuses. They list a number of cases in the supreme court that have settled the fact that the First Amendment applies on the public university campus as law. Two of the five cases provided by Fire are instances that protect professors, three out of five cases protect left-leaning communist groups, and one reinforced protection for a religious student group.

Theoretically, free speech is for everyone: professors, students, communists, and religious fundamentalists.

But Trump supporters?

Act 2, Scene 1 - The Hecklers Veto

The First Amendment does not require the government to provide a platform for anyone. The government is only prohibited from discriminating against speech on the basis of the speaker’s viewpoint. The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech.

The problem is, when police are faced with the choice of protecting speakers or going down with them, it can always be viewed as the police taking sides.

  1. If the police protect the speaker it is viewed as supporting their speech.
  2. In the opposing view, if the police shut down the speaker, fail to protect them, they’re viewed as siding with the hostile mob.

To what extent are the actions of a hostile mob allowed to interfere with constitutional rights?

There is no easy solution to the problem of the hostile audience. How much money is too much money to spend on defending a culture of free speech?

Act 2, Scene 2 - How Hostile is too Hostile?

What is the price of order?

There has to be some limit, otherwise every person shouting obscenities would demand protection from the mob they provoked. When rioters hit the streets of Berkeley, police had to be pulled in from other districts in northern California. The cost of defending far right-wing provocateurs is not sustainable.

That’s one argument that became the focal point of contention from the staff at DailyCal.org and Berkeleyside that year following the Free Speech week and Ben Shapiro events on UC Berkeley campus.

Still, it’s not obvious to me that price should be the primary concern here. In the case of “slut walks“, the argument of feminists has been that under no circumstance is it ever okay to violate a woman’s free speech or freedom of expression. When it comes to a woman walking in public every arm of the government should be levied to protect women no matter how they want to express themselves sexually.

The first amendment doesn’t read, “the right of the people peaceably to assemble, unless it’s too expensive to protect peaceful protesters from a violent mob.”

By being hostile enough, rioters can use the arm of the law to silence any speaker of whom they don’t approve of.

Alternatively, we can ask the same question another way.

What is the most hostile mob the government is not able to protect against?

  1. If the government supports free speech and by extension the speaker, it is in the government’s interest to continue to protect the speaker at all costs and disincentivize violent protesters in the future.
  2. If the government does not support the speaker, and by extension free speech, it is in the government’s interest to spend as much as possible not protecting the speaker and demonstrate an insurmountable cost while simultaneously discouraging that kind of speech because of the violence that is incited by it.

The more hostile the mob, the more expensive it is for the police. By claiming insurmountable costs, we incentivize violent protesters to shut down any speech they disagree with.

And this is what I believe happened at UC Berkeley.

Act 3, Scene 1 - UC Berkeley, Prove it.

Professor Robert M. O’Neil has said:

The ultimate issue has never been decided in any court. That is if the speaker is perfectly willing to risk injury or even death, as the price of going on, do the police have the power to protect him by cutting him off when they cannot ensure his safety by controlling the crowd?’

What constitutes reasonable efforts to protect free speech?

This is obviously an extreme example. And I’m not acting as if the university ought to call out the armed guards, although administrators on campus might be acting that way.

In the case of Antifa, we’re not dealing with an armed militia. We’re dealing with passionately confused teenagers.

In clothes their parents bought them, attending one of the most, if not the most prestigious public universities in the country. If the police can’t protect against them who can they protect against?

What would demonstrate a reasonable effort to protect free speech?

  1. Prevention: allow the event to be held in the day & enforce a no mask policy.
  2. Consequence: create a policy that states: students who are found violently protesting will be suspended, expelled, and the standard adult criminal charges will apply.

Did they do either of these things? No. The university out right refused to do so.

Free speech is the mechanism by which we orient ourselves in the world, and it is the function of the government to preserve that tool, to safeguard it from angry mobs, and its use as a political tactic.

  • I believe that free speech should exist on university campuses, I’m not claiming that it doesn’t but I’m saying it should.
  • I believe that it would be in the best interest of the students, community, and country at large to do so.
  • I believe that it is the responsibility of the institution to demonstrate that they’ve done their best effort in defending opposing political views fairly.
  • I believe that spending in the short term will reduce spending in the long term by discouraging heckler’s veto and hypersensitivity to ideas in the long term.
  • I believe that doing this would make for a less politically correct but ultimately more sane political climate.

Most importantly, I believe that any attempt by the government to cite cost in protecting free speech should be viewed with extreme skepticism. It is their first most important and primary function, to protect all speech in service in the ascertainment of truth.

Especially on University campuses, and even for Trump supporters.