Popehat

There are many free-speech-related fallacies that irritate me. There’s the historically and legally ignorant: “Well, the First Amendment says that ‘Congress shall make no law,’ but it doesn’t say anything about states, so my state can make this speech illegal.” There’s the lack of appreciation of the importance of state action: “They deleted my post on that internet forum! What about my right to free speech?” And then there’s the all-to-common and supremely annoying confusion between government suppression and criticism or condemnation: “All I did was drop one n-bomb, and now everyone is calling me a racist and silencing me. What about free speech?”

I expect to encounter these in places like internet discussion forums, and do all the time.

I don’t expect to encounter them from my favorite free-speech-defending organizations.

Case in point, The FIRE, or the Foundation for Individual Rights in Education, which does important work dropping the hammer on universities that suppress speech rights and trammel due process. I’ve blogged about their cases frequently and admire their work. This time they are right on the big picture but drop a big, fat mistake in the midst of their description of it.

The case involves Colorado College, which reacted in embarrassing fashion to a satirical flyer. The madness started with The Monthly Rag, a campus feminist publication that included a few threatening-or-offensive-to-certain-kinds-of-men elements like references to castration, feminist porn, and something called the Bitch Manifesto. In response, some young men on campus put together a parody called The Monthly Bag, which included “references to ‘chainsaw etiquette,’ the shooting range of a sniper rifle, a quotation regarding a sexual position from the website menshealth.com, and a quotation about ‘female violence and abuse’ of men from the website batteredmen.com.” Fairly standard satire, in other words.

The young men learned an important life lesson: if you don’t like getting hate mail, never make fun of a feminist. The college president sends out a campus-wide email demanding that the miscreants surrender. They’re widely condemned. And two weeks after a hearing before a student conduct committee, they are punished:

Two weeks after their hearing before the student conduct committee, Vice President for Student Life/Dean of Students Mike Edmonds finally wrote to the “Coalition of Some Dudes” students on March 25, stating that they had been found guilty of “violating the student code of conduct policy on violence” and that as a punishment, they would be required to hold a forum to “discuss issues and questions raised” by “The Monthly Bag.” Although Edmonds acknowledged that the intent of the publication was to satirize “The Monthly Rag,” he wrote that “in the climate in which we find ourselves today, violence—or implied violence—of any kind cannot be tolerated on a college campus.” Apparently, according to Edmonds, “the juxtaposition of weaponry and sexuality” in an anonymous parody made students subjectively feel threatened by chainsaws or rifles.

Now, FIRE makes it clear — as it must — that Colorado College is not bound by the First Amendment as a private school. FIRE’s criticism — as with many private schools — is that Colorado College claims to promote and protect free expression, and should not be taken seriously as an academic institution to the extent it fails to do so. If Colorado College punishes parody and satire that would clearly be protected at a state institution, it should be condemned and treated with contempt, and its commitment to academic freedom should be questioned. That seems to be the case. The Monthly Bag is paradigmatic satire, the purported weaponry/sex juxtaposition is embarrassingly pretextual and could not be uttered with a straight face outside of fringe elements of academia (or, arguably, the Bush Administration), and generally the Colorado College administration sent a clear message that speech that ridicules privileged elements of campus society will not be tolerated. As FIRE suggests, Colorado College President Dick Celeste’s blog entry defending his actions is disingenuous and unserious.

The FIRE points out that Colorado College tried to assert that the students were not punished at all for The Daily Bag. That appears false — though Colorado college tries to spin it as only a “suggestion,” it seems clear from the context that the students were required to hold a “forum” for discussion of their terrible wrong with members of the community. That this was mandatory, not voluntary, is clear from the juxtaposition with the finding that they had violated Colorado College conduct rules and a stated requirement that they hold the forum by a date certain. Requiring speech offenders to hold a Two Minute Hate for the benefit of the people they satirized is deeply offensive to anyone whose devotion to freedom of expression is more than front-office PR.

But here’s where FIRE goes off the rails, and the point of this long-winded post. FIRE’s Adam Kissel — who based on other writings seems to have a firm grasp of First Amendment principles — says:

Having a guilty finding on one’s record is a punishment. Having the letter put in each student’s file is a punishment. Being required to hold a “forum” is a punishment. Being publicly shamed in a mass e-mail from the president is a punishment.

Well, yes as to the forum. No as to everything else.

Condemnation and criticism and declarations of wrongdoing without specific and articulable consequences — even when uttered by a state actor — are not violations of the law or the spirit of free speech. Even if you treat Colorado College as a state actor for the sake of argument — or because it ought to hew to the contours of the First Amendment if it is going to be taken seriously, private or not — then the President’s condemnation, however shaming, is not a violation of free speech laws or principles. Nor is a letter of reprimand.

That’s the law.

It is quite well established that official condemnation and criticism, and even formal “reprimands” and “censures,” don’t constitute violations of the right to due process or of First Amendment Rights. Courts have repeatedly rejected such claims, often in the context of assertions that state employers retaliated against state employees through condemnation, criticism, and censure. Courts have consistently found that a state actor’s condemnation, criticism, and even “official censure” of another does not violate rights unless it leads to a specific deprivation of something tangible — like a benefit. Brennan v. Norton, 350 F.3d 399, 419 (3rd. Cir. 2003) (”Courts have declined to find that an employer’s actions have adversely affected an employee’s exercise of his First Amendment rights where the employer’s alleged retaliatory acts were criticism, false accusations, or verbal reprimands.”); Nunez v. City of Los Angeles, 147 F.3d 867 (9th Cir. 1998) (police officer who was “bad-mouthed and verbally threatened” did not make out a claim). The seminal case in this line, Paul v. Davis, 424 U.S. 693 (1976), rejected a Section 1983 claim by a man who was depicted as a repeat shoplifter in a flyer; the Court held that damage to reputation, absent accompanying loss of something tangible like employment, is not a deprivation of liberty or property. Or consider a state case, the Vermont Supreme Court in La Flame v. Essex, in which the court rejected a claim that a school board violated First Amendment and due process rights by levying an official “censure” at a member.

There’s a very good reason that censure, condemnation, and criticism by government officials can’t constitute a violation of free speech rights. It would be inherently self-contradictory, an impossible paradox of speech. As the Nunez court said in rejecting a claim that official criticism violated free speech rights, “[I]t would be the height of irony, indeed, if mere speech, in response to speech, could constitute a First Amendment violation.” The entire theory behind modern free speech jurisprudence is that the best response to offensive speech is more speech. That underpinning is weakened if we attempt to hobble the response speech; it’s the equivalent of saying that that the first person to speak should get superior protection.

The apparent demand that the students hold an encounter group is clearly punishment that would violate the First Amendment and that should offend our expectations for a college. But Colorado College’s President’s official condemnation of the authors of The Monthly Bag, no matter how moronic and regrettable, is therefore not “punishment” in any way we should care about in a discussion of free speech. If anything, we should encourage official speakers to respond to offensive speech from the soapbox rather than with the censor’s pen in the hopes of normalizing that response. Similarly, the letter placed in the students’ Permanent Record is not “punishment” of a free-speech dimension unless it results in tangible consequences — loss of eligibility for some academic benefit, for example.

The FIRE is dead wrong on this one. I hope that it is only a rhetorical flourish gone wrong and not a statement of position.

This leads me to a point about political correctness and the appropriate response thereto. The principle of free speech does not mean, and never has meant, that one should be able to say anything without social consequence. Sometimes there will be swift, brutal, humiliating condemnation. That’s the marketplace of ideas. Man up and wear a cup, as the writers of The Monthly Bag might have said. Pushing the notion that people are victims when their unpopular speech is met with response speech is legally incorrectly, politically puerile, and discredits the fight against serious and actual free speech violations.

That means that sometimes people are going to have to tell the political elites to piss off. In the Colorado College case, the evidence suggests that the students were forced to participate in political reeducation, though the college administration has attempted to spin it as a “suggestion.” Other times, however, a suggestion is just a suggestion, and until it ripens into palpable action, a speaker has to stand up and refuse it. Therefore I’m not terribly sympathetic to the guy in this case profiled by Michelle Malkin, whose teacher “suggested” he apologize for a remark, and he did. Malkin quotes approvingly this excuse:

Coming from an authority figure who has the power to determine your grade, such a “suggestion” is more than just a casual piece of advice.

Well, no. Absent an explicit threat or actual exercise of punitive power, a suggestion is a suggestion. if you yield to it out of fear of what could happen, you’re not a victim of suppression. You’re someone who can’t stand behind your words. I’d be the first to condemn the teacher in this case if she actually palpably retaliated for classroom speech. But she’s got every right to speak back and condemn him and ask him to apologize, just like he can ask her to apologize. Pretending otherwise — that people are victimized in any meaningful way when excoriated by their teachers or administrators or politicians — is part of the Oprahization of the free speech debate, a regression from principles to feelings. And it’s an ironic regression, because the people howling over the “suggestion” to this kid are precisely the ones who normally say that people facing speech they don’t like ought to suck it up. He can suck it up, too.

In short: speak up. But don’t come running behind the skirts of free speech when someone speaks back. That’s pathetic.

Update: Mr. Kissel has responded at The FIRE’s blog, as discussed here.

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written by Ken \\ tags: Free Speech, Law, Politics & Current Events