"Symposium: Is Free Speech Under Threat in the United States?", Silverglate (and others) in Commentary Magazine, June 14, 2017

["Dave Farber" <dave () farber net>]

---------- Forwarded message ---------
From: Harvey Silverglate <Harvey () harveysilverglate com>
Date: Mon, Jun 19, 2017 at 12:59 PM
Subject: "Symposium: Is Free Speech Under Threat in the United States?",
Silverglate (and others) in Commentary Magazine, June 14, 2017
To: Harvey Silverglate <Harvey () harveysilverglate com>


Dear readers on my opt-in columns-by-email list:

                In April, *Commentary Magazine *asked me and a handful of
other writers, attorneys, and commentators to respond to a simple question (but
with a complex answer or answers): *Is free speech under threat in the
United States?* A quick scan of First Amendment case law reveals that free
speech has always been attacked, even as the Supreme Court has consistently
ruled in favor of speech in recent decades. Today, that threat emanates
from none other than our liberal arts campuses. *See below* to read my
response to *Commentary’s* question and to get a sense of what I think this
trend portends for our campuses and our country.

You can read the full symposium, which includes responses to the same
question from 26 of my colleagues, here:
https://www.commentarymagazine.com/articles/free-speech-threat-united-states/.


As always, you’re welcome to write me a short note with your comments. I
*try* to read and respond to all such messages. The *Commentary* website
does not allow for comments to be posted to it, although you may, if you’re
so inclined, submit a Letter-to-the-Editor.





Harvey Silverglate






Symposium: Is Free Speech Under Threat in the United States?

SYMPOSIUM <https://www.commentarymagazine.com/author/symposium/> / JUNE 14,
2017
<https://www.commentarymagazine.com/articles/free-speech-threat-united-states/>



Harvey Silverglate



Free speech is, and has always been, threatened. The title of Nat Hentoff’s
1993 book *Free Speech for Me – but Not for Thee* is no less true today
than at any time, even as the Supreme Court has accorded free speech a more
absolute degree of protection than in any previous era.

Since the 1980s, the high court has decided most major free-speech cases in
favor of speech, with most of the major decisions being unanimous or nearly
so.

Women’s-rights advocates were turned back by the high court in 1986 when
they sought to ban the sale of printed materials that, because deemed
pornographic by some, were alleged to promote violence against women.
Censorship in the name of gender*–*based protection thus failed to gain
traction.

Despite the demands of civil-rights activists, the Supreme Court in 1992
declared cross-burning to be a protected form of expression in *R.A.V. v.
City of St. Paul*, a decision later refined to strengthen a narrow
exception for when cross-burning occurs primarily as a physical threat
rather than merely an expression of hatred.

Other attempts at First Amendment circumvention have been met with equally
decisive rebuff. When the Reverend Jerry Falwell sued *Hustler *magazine
publisher Larry Flynt for defamation growing out of a parody depicting
Falwell’s first sexual encounter as a drunken tryst with his mother in an
outhouse, a unanimous Supreme Court lectured on the history of parody as a
constitutionally protected, even if cruel, form of social and political
criticism.

When the South Boston Allied War Veterans, sponsor of Boston’s Saint
Patrick’s Day parade, sought to exclude a gay veterans’ group from marching
under its own banner, the high court unanimously held that as a private
entity, even though marching in public streets, the Veterans could exclude
any group marching under a banner conflicting with the parade’s socially
conservative message, notwithstanding public-accommodations laws. The gay
group could have its own parade but could not rain on that of the
conservatives.

Despite such legal clarity, today’s most potent attacks on speech are
coming, ironically, from liberal-arts colleges. Ubiquitous “speech codes”
limit speech that might insult, embarrass, or “harass,” in particular,
members of “historically disadvantaged” groups. “Safe spaces” and “trigger
warnings” protect purportedly vulnerable students from hearing words and
ideas they might find upsetting. Student demonstrators and threats of
violence have forced the cancellation of controversial speakers, left and
right.

It remains unclear how much campus censorship results from politically
correct faculty, control-obsessed student-life administrators, or students
socialized and indoctrinated into intolerance*. *My experience suggests
that the bureaucrats are primarily, although not entirely, to blame. When
sued, colleges either lose or settle, pay a modest amount, and then return
to their censorious ways.

This trend threatens the heart and soul of liberal education. Eventually it
could infect the entire society as these students graduate and assume
influential positions. Whether a resulting flood of censorship ultimately
overcomes legal protections and weakens democracy remains to be seen.



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