Ash: Know the First Amendment, focus on a dialogue

CJ Ash

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Students, community members and activists gather outside the Cristol Chemistry and Biochemistry building on CU Boulder’s campus to protest Turning Point USA’s guest speaker Ann Coulter. (Davis Bonner | Collegian)

‘Free speech not hate speech,’ read one student protester’s sign at Ann Coulter’s speech in Boulder last week. But according to the Supreme Court, that’s not actually true.

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The issue of freedom of speech and expression comes up often in these politically polarized times, and it is important for students, and all those who peacefully assemble, to understand what free speech is, and what it isn’t. As uncomfortable as it may be, hate speech is protected speech. By understanding that and not trying to control the legal speech of others, we can move forward to end hatred and bigotry through the best means open to us: Honest dialogue.

According to the American Bar Association, hate speech “is speech that offends, threatens, or insults groups, based on race, color, religion, national origin, sexual orientation, disability, or other traits.” 

Hate speech is protected by the First Amendment, contrary to the signs often held aloft at rallies. According to a 2017 survey conducted by the Foundation of Individual Rights in Education, only 46 percent of students recognized that hate speech is protected by the First Amendment, and 48 percent felt that it should not be protected. A majority of conservative students felt that it should be protected and a majority of liberal students felt that it should not. 

Thirteen percent of the students also identified hate speech with violence. 

There are a great deal of misconceptions when it comes to free speech, as highlighted in students’ comments in response to Ann Coulter’s visit to CU Boulder. 

“We’re here to symbolize that free speech does not equal hate speech,” said one student. Well, actually it does. 

As Supreme Court Justice Samuel Alito said in Matal v. Tam, “The idea that the government may restrict speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

Because hate speech is protected, students and activists should stop protesting on this point and instead focus on creating a dialogue.

Another misconception is that we must balance free speech with other interests, such as the possible emotional damage that it may cause. The Supreme Court is very clear on this: “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.” 

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The US Supreme Court has allowed very few exceptions to the First Amendment, which they define as “well-defined and narrowly limited.” Those exceptions are obscenity, defamation, fraud, incitement, actual threats and speech integral to already criminal conduct. While sometimes hate speech can cross into these grounds, 

One might hope for laws on this to be changed, as laws are periodically challenged and overruled by the Supreme Court. To those with this hope, I have more bad news for you. 

In 1989, The University of Michigan tried to challenge free speech by banning behavior or speech that stigmatized or victimized a student. The U.S. District Court ruled against the university stating, “…such efforts must not be at the expense of free speech.” 

Through handling these and even cases involving the KKK burning crosses and Westboro Baptist Church protesting funerals, the US Supreme Court is steadfast in its protection and defense of free speech under the First Amendment. That includes speech some consider hateful, and if students are ever to have a constructive dialogue around these issues, this is a point that must be understood by people on all sides.

The American Civil Liberties Union (ACLU) agrees with the Supreme Court, stating, “Restrictions on speech by public colleges and universities amount to government censorship, in violation of the Constitution. An open society depends on liberal education, and the whole enterprise of liberal education is founded on the principle of free speech.” 

I anticipate a large number readers will find themselves sarcastically agape going through this.

Hold the press, it’s a conservative writer defending hate speech. Let me be clear. The ideas of allowing free speech and liking hate speech are not mutually exclusive. I am a stern advocate for the right of any individual to speak their mind, regardless of the context, but that does not mean I support hate.

Furthermore, students must know that there are no First Amendment protections for nonverbal symbols to directly threaten an individual. If there any morons out there that think it’s funny to paint a swastika or hang a noose on someone’s door, know that you don’t have any legal ground to stand on. 

Rather than trying to control what others say, we must instead stay united in our fight against bigotry and evil. The answer isn’t to suppress speech, but to keep talking. Uncomfortable dialogue leads to greater levels of understanding. Rams take care of rams and it starts with free speech. 

Collegian columnist CJ Ash can be reached a letters@collegian.com or online @Cee_Jay_Ash