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Some Distinctions, Please:

Commenter Pete writes, on the UC Irvine thread:

There have been incidents of violence by muslims against non muslims at UCI including throwing a cinderblock at an FBI agent's car, muslim students disrupted Daniels Pipes speech, student housing was defaced with swastikas, and here is a rather hateful speech called "Israel the 4th Reich" by Amir Abdel Malik Ali sponsored by the campus Muslim Student Union.

For those interested in what the chancellor is defending, here is a video of one of the events where the speaker blames Jews for 9/11 and where the blogger doing the videotaping is thrown out when discovered. The blogger was also followed by and assaulted by Muslims after they found out he was video taping the event.

I've heard similar catalogs from others who are faulting UCI, and seemingly calling for more speech restrictions.

The trouble is that this mixes together a great deal of behavior, some of which should clearly be punished -- though by punishment of the attackers, not restrictions on the speech of coreligionists -- and some of which is constitutionally protected.

Thus of course students who throw cinderblocks at cars, vandalize student housing, and assault people should be criminally punished, and punished by the university as well. If the police or UCI knew who the criminals were, had proof that they committed the crimes, and failed to punish them, that should be strongly faulted; likewise if the police or UCI didn't investigate the crimes adequately. But if the swastika drawers were simply never found, despite a reasonable investigation, then there's little to fault the police and UCI for. Certainly UCI can't punish Muslim student groups generally for the acts of individual Muslim students (unless there's some evidence that the group was actively involved in the act), much less for acts in which the actor is unknown.

Likewise, people who disrupt speakers (assuming we're talking about noise, rushing the stage, and the like, and not just holding a peaceful but offensive protest outside) should be disciplined. If you have evidence that UCI had the goods on them but didn't properly discipline them -- or refused to get the goods on them -- then pass them along, and we can decide to fault UCI for that. But again the penalties would have been punishing the students, not shutting down extremist Muslim events organized by other students.

But a "rather hateful speech called 'Israel the 4th Reich'" is, well, speech. The freedom of speech surely extends to expressions of hatred and hostility to foreign governments (or for that matter one's own government), however unfair or bigoted those expressions might be. Likewise, a "speaker [who] blames Jews for 9/11" is a speaker, engaged in speech. The freedom of speech likewise extends to arguing that there are government coverups and malign conspiracies, even when we think such theories are foolish and hateful.

University chancellors should defend the right to engage in such speech. And certainly the fact that some Muslim students have engaged in vandalism and assault doesn't warrant a university's stopping other Muslim students from inviting other Muslim speakers who want to engage in constitutionally protected speech.

Related Posts (on one page):

  1. Some Distinctions, Please:
  2. UC Irvine Chancellor Speaks Up for Free Speech:
Bravo:

"The trouble is that this mixes together a great deal of behavior, some of which should clearly be punished . . . and some of which is constitutionally protected."



Another interpretation is that you have it precisely backwards because you are setting the baseline in a way that begs the question. You say that the two different kinds of behavior should not be impermissibly mixed together because their True Meanings are best understood when viewed separately. But the whole point is that you are impermissibly disaggregating the behaviors in a way that takes the acts out of context and distorts their True Meanings. It may be true that, once placed in the context of cinderblocks through FBI windshields, vandalism, and assault, the speech itself becomes violent in a way not adequately dealt with by the Fighting Words exception.

You have to pick one context over another (aggregated vs. disaggregated), and there's no principled way to do that. It is only the antecedent [yet unjustified] choice of context which prevents the Fighting Words exception from barring this type of speech.

I assume you have dealt with this argument in your formal scholarship, but I think it would be good to offer your rejoinder in your (more frequent) blog postings as well.
6.1.2007 4:57am
Brian K (mail):
True Meanings?
6.1.2007 5:09am
Bravo:
It doesn't mean the University has to rush to speech codes, however. One of these days, some college will respond to a hate speech incident with the following statement:

1. We think the speech was outrageous and horrible.
2. We never want speech like that to happen again.
3. We think that speech codes only repress rather than solve the problem.
4. We think that campus student groups -- through informal social pressure or even dialogue -- can do a better job of shutting up these Hate Speakers than we can as Deans.
5. Therefore, stop relying on us. You kids are on your own.

Just let them go at it. Things might get really ugly for a while, but the ugliness can't sustain itself forever because there are many other constraints that will prevent chaos. Things will calm down. And when it's over, the students may have learned something. You can't have that kind of organic progression if you use the administration as a crutch.
6.1.2007 5:12am
Brian K (mail):
Bravo,

you can only aggregate the behavior together if it is the same person doing all of the behavior. That assumption is not proven. Otherwise the majority of the posters on any board discussing muslims or homosexuals on this site should be punished for crimes against those groups.
6.1.2007 5:15am
Bravo:
I don't think that's accurate. It does not have to be the same person. And you can avoid punishing one person for the sins of the group. You punish each person for his own acts. What's problematic is defining the "act."

As an example, suppose my friends commit a bunch of violent acts against Jews on Monday through Thursday. And then on Friday, I give the "Israel is the Fourth Reich" speech. Then suppose that I am punished for the speech because the school says it cannot be disaggregated from the acts of violence. I might be culpable because/if I knew of the acts of violence and gave the speech in spite of those acts of violence. If I am punished, I am not punished for anything my friends did -- I am punished only for what I did. What did I do? Professor Volokh says "Give the Israel is the Fourth Reich speech." I say "Give the Israel is the Fourth Reich speech right after a bunch of violence against Jews."

Which of those definitions of My Act is correct? I have no idea. There are a million different possible definitions of My Act, each of which is grounded in a particular context (even Professor Volokh's). The point is that you have to pick one and only one context, and nothing in the concept of free speech tells us how to do that.

In any event, it must be false that holding me accountable for actions I perform within a certain context necessarily requires holding me accountable for the acts of previous persons which created that context. I think that is the substance of your objection, and if it is, then I think it is wrong as a matter of logic and experience.
6.1.2007 5:39am
Brian K (mail):

If I am punished, I am not punished for anything my friends did -- I am punished only for what I did.


This is clearly wrong. You are being punished because of your friends' actions. If you give the speech in the absence of your friends' actions then you are not punished. If you give the speech after your friends' actions then you are punished. The factor that lead to the punishment is your friends' actions not the speech you gave. You can most definitely be criticized for using poor judgment when deciding the timing of your speech, but you can't be punished for the speech.

"I think [your position] is wrong as a matter of logic and experience." (haha...i couldn't resist myself)
6.1.2007 6:21am
Phil333333:
Can someone brush me up on my 1st Amendment law? If the university/police found that these speech acts led directly to the acts of violence (the cinderblock and the swastikas) would the university then be allowed to restrict the speech? I'm not saying they should or they shouldn't, I just don't know my First Amendment law that well.
6.1.2007 7:41am
Richard Aubrey (mail):
Let the kids sort it out.
Huh.
I guess they would learn something. That is, power goes to the least scrupulous, most violent.
And to the group(s) most favored by the victim-designators.
Which, today, seem to be the same as the least scrupulous, most violent.
That's the kind of real-world learning people are always going on about.
6.1.2007 7:51am
pete (mail) (www):
"I've heard similar catalogs from others who are faulting UCI, and seemingly calling for more speech restrictions."

Where is my comment did I call for speech codes? I do not think universities should have speech codes. If the Muslim Student Association wants to bring in speakers that say Jews are responsible for 9/11 and that Isreal should be destroyed they should be allowed to. I would rather they commit such evil acts in public so that the rest of the community can know what it is up against.

Your original post was very light on details of what is going on at UC Irvine. And to my knowledge no student has been punished for their assaults. For instance this same chancellor defending this antisemitic speech, from what I have read, did nothing to the students who disrputed Daniel Pipes speech and that disruption was recorded on film and posted on Youtube for the world to see. Part of free speech is allowing other people to give speeches as well, or else as in the case of UC Irvine, some student speech is more free than others and the heckler's veto rules. And in cases like this when only one side is initiating violence associated with its speeches, the heckler's veto becomes a lot more powerful.

Is anyone really surpirsed that people attending a speech where Jews are blamed for 9/11 and pretty much every other evil in the world are willing to assault someone who tries to videotape the speech? That does not mean that I think the speech should have been stopped. It does mean that I think it should be exposed for what it is and that contrary views should be allowed a free forum as well.

And for lack of distinctions, sorry, but I was trying to give your readers a glimpse of what is going at UCI in a limited ammount of time and trying to cram as many links as possible into a short post so that they could judge for themselves.
6.1.2007 9:24am
rbj:
Phil3+
"If the university/police found that these speech acts led directly to the acts of violence (the cinderblock and the swastikas) would the university then be allowed to restrict the speech?"
Only if the speech said something along the lines of "now go out there and attack the FBI and attack Jews -- throw stuff at them, vandalize them." Speech which is intended to encourage violence is unprotected.

Bravo -- you would have to prove, basically, a criminal conspiracy between the speech giver and his audience to commit violence. If there is, say, and outsider speaker "A" who gives a speech blaming group "X" for the ills of the world, and a gang "B" decides, based on that alone, to start harassing "X", that doesn't mean you can ban "A" type speakers.
6.1.2007 9:28am
PatHMV (mail) (www):
When the KKK comes to down, we generally recognize their right to speak, but most prudent politicians and concerned civic leaders find it prudent and wise to strongly denounce the content of that speech. At my own campus, when some students started waving a Confederate flag (in school colors) around during football games, our Chancellor quite properly denounced the practice, strongly, while at the same time pointing out that he could take no disciplinary action against them.

And that's what I sense I'm missing here from Drake, a real denunciation of the hateful speech. As I said in the last thread, I am quite, quite certain that if there was anti-gay hate speech being hurled around, coupled with even hints of violence to match, the Chancellor would be at the forefront discussing the need to calm tensions, to educate the miscreants who were making these hateful statements about the benefits of diversity, the need to respect all members of the campus community, etc.

And that would be entirely appropriate, because such hate speech is bad (constitutionally protected, but bad), and has very deleterious effects on campus life in general and the relations between the targeted minority group and the group making the hateful speeches. The campus should, within appropriate limits, promote real tolerance on their campus.
6.1.2007 10:52am
sbron:
I agree that Muslim students should be free to compare
Israel to the Reich -- this lets us know exactly where
some Muslims stand. The problem is that the Chancellor at
UCI has not used his right to free speech to condemn
the confluence of anti-Israel speech with anti-Semitism.

It is very sad. Back in the early 1960s, when
anti-Semitism was acceptable among the mainstream, the
first UC San Diego Chancellor (Roger Revelle) broke the
housing convenants in La Jolla. He stated that
(even if they would be overrepresented) any good University
would have many Jewish professors, and the local realtors
would immediately have to stop discriminating, or
UCSD would not be built.

Today, prejudice against successful groups (Jews, Asians,
and whites in general) is fully accepted
at UC, as long as it is couched in denunciations
of "wealth, privilege" and Israel.
6.1.2007 11:14am
law clerk (mail):
"You kids are on your own."

Have you read Lord of the Flies lately?
6.1.2007 11:18am
Eugene Volokh (www):
Bravo: See NAACP v. Claiborne Hardware, which makes clear that X's speech can't be restricted because of Y's violence, even if X and Y are broadly part of the same movement.

Phil333333: See Brandenburg v. Ohio, which holds that speech can't be punished for allegedly inciting action unless it's (1) intended to and (2) likely to (3) yield imminent illegal conduct (with imminence being defined as more or less "within a few hours at most," see Hess v. Indiana).

Pete: I'm pleased that you do not call for restricting two of the items you mention (the speeches). I understood your "For those interested in what the chancellor is defending" as faulting the chancellor for defending the speakers' rights, and I've heard others do that. But it sounds like I misunderstood you, and I'm glad to hear that this is so.
6.1.2007 11:26am
Duncan Frissell (mail):
Eugene,

You would no doubt support the Jewish students of UC Irvine exercising their 2nd Amendment rights to personally defend themselves against their would be Pagan Conquerors. That would settle the opposition down.

Note that although commies and Calaphists overseas have taken up guns, domestically, firearms use is the province of right-wing nuts and libertarians. Our enemies have "given up the gun" here. Not a smart move.
6.1.2007 11:34am
Phil333333:
Eugene - So the speaker could say I want you to kill all the Jews and then 5 people at that speech get together and plan an attempt to blow up a synagogue a week later and that speaker's speech is still constitutionally protected because it is not within a few hours?
6.1.2007 11:34am
Bravo:
Professor Volokh, I never pretended that my point was an accurate summation of current First Amendment doctrine. Likewise, I thought your arguments in your original post were normative rather than strictly doctrinal. Claiborne Hardware is wrongly decided.

rbj, I guess I'm not being clear. The point is not that the speech "leads to" acts of violence -- the point is that the speech itself is violent. We already accept that basic premise when we talk about Fighting Words. It's just a matter of expanding the scope of the Fighting Words exception so that some speech would be unprotected if uttered in particular contexts. The speech itself is the evil -- not anything subsequent to it.

Brian K, think about it. If your argument is correct, then every single thing you have ever done is "because of" other peoples' actions from yesterday, the day before, two weeks ago, 1974, etc. But nobody thinks you are morally culpable for their bad acts even though they are, by definition, but-for causes of your actions. You may be right in some sense, but not the sense we usually use when we allocate moral blame.
6.1.2007 12:33pm
Curt Fischer:

I agree that Muslim students should be free to compare
Israel to the Reich -- this lets us know exactly where
some Muslims stand. The problem is that the Chancellor at
UCI has not used his right to free speech to condemn
the confluence of anti-Israel speech with anti-Semitism.
[...]
Today, prejudice against successful groups (Jews, Asians,
and whites in general) is fully accepted
at UC, as long as it is couched in denunciations
of "wealth, privilege" and Israel.


sbron, I (perhaps mistakenly) infer a double standard in these two passages you wrote. If sure we must be careful not to conflate anti-Israel speech with anti-Semitism, surely we must also guard against conflating anti-wealth, anti-success, and anti-privlege speech with anti-white, anti-Asian, and anti-Semitic speech.

In other words, how does racial prejudice inhere in denunciation of wealth, privlege, and/or Israel?
6.1.2007 1:02pm
Eugene Volokh (www):
Phil333333: Yes, that's right -- which is why people remain free to say that it's morally proper for citizens to kill intruders even when the law might prohibit that, or that it's not immoral to kill abortion providers in the course of defending fetuses, or that mercy killing is morally right (or even morally mandated) even when it's illegal, or (if Roe were reversed and some states outlawed abortions) that every woman has an inalienable moral right to get an abortion.

The Court experimented with a looser rule from the 1910s to the 1950s, and concluded that such a rule was insufficiently protective of speech -- hence the Brandenburg decision.
6.1.2007 1:25pm
rbj:
Bravo,
"the point is that the speech itself is violent. We already accept that basic premise when we talk about Fighting Words. It's just a matter of expanding the scope of the Fighting Words exception so that some speech would be unprotected if uttered in particular contexts."
reminds me of a sign I saw in a photo quite a few years ago, when an anti-immigration(?) person was speaking at a Californian university. That sign said "No free speech for racists". Sorry, but free speech is for all, even stuff you find vile and noxious.

Quick question, does anyone know of any laws, say in the Ante Bellum South, where it was illegal to speak in favor of ending slavery, or mixed race marriages?

I do not consider speech to be violent in and of itself. Maybe real loud speech is -- but only because of the force of the sound waves. Fighting Words should be a narrow exception.
6.1.2007 3:36pm
Brian K (mail):

think about it. If your argument is correct, then every single thing you have ever done is "because of" other peoples' actions from yesterday, the day before, two weeks ago, 1974, etc. But nobody thinks you are morally culpable for their bad acts even though they are, by definition, but-for causes of your actions. You may be right in some sense, but not the sense we usually use when we allocate moral blame.

This is not the same argument you were making earlier. Unless I've mistaken you, you were arguing that giving the speech after a spate of violence is, or should be, punishable because of the context it was given in. What you said above seems to be closer to my original position than to yours. You're right my current actions are a result of my previous experiences including the actions of others. But if I steal a car I am not punished because someone else stole a different car, I am only punished for the car I stole. Nor is my punishment enhanced because i stole the car in the middle of spate of car thefts.

Do we absolve people of crimes based on the context? No. If a woman is raped in a bar where several other rapes have previously occurred is the rapist not guilty because the woman should have not gone there in the first place? of course not. If i'm robbed in the street is the thief absolved of guilt because i should have known that wearing a nice suit would have made me a target? Of course not. So why should we punish someone for legal speech because of another person's illegal actions?
6.1.2007 4:00pm
hey (mail):
People should be held accountable for the actions of groups that they willfully join and for advocating violent acts. US jurisprudence is far outside main Anglo common law tradition on free speech, where counselling to commit a crime is illegal. "You should kill all the Jews" should be illegal. There is a difference between advocating public policy positions such as "you should have a greater ability to shoot intruders" and advocating specific acts that are currently criminal "you should kill any intruder, despite it being against the law". The second is counselling and should be punished, though that's not current US constitutional practice.

If you take part in a rally that's going to involve mass illegality, you should be liable for all rioting that happens. Conspiracy to commit should be a felony and then bring in felony liability, or we should extend the felony rule to misdemeanours as well. Unfortunately the hippies are unning the asylum. Rioters are appeased, terrorists are praised, pogroms are encouraged and defended by University Chancellors.

The contrasting reactions to MSA activities and Affirmative Action bake sales and pro-Israel speeches shows you all you need to know. The treasonous hippies continue to do all they can to pursue their civil war, but now they're in positions of power and allied with islamists. This will go badly, as we've seen with pardons to Weathermen and other terrorists. Jane Fonda walks free, despite her treason and complicity in the deaths of millions of Vietnamese and Cambodians.
6.1.2007 9:46pm
Bravo:
I was only stating that taking context into account when punishing someone does not mean that they are punished "because of" the acts of others. If it is morally wrong to steal from someone, then it may be more wrong to steal from someone who is already poor (maybe he was fired from his job recently). That's a moral judgment that takes context into consideration. If we assign greater moral blame to the thief for stealing from the poor person, then I don't think we can say that we are blaming the thief "because of" the actions of the employer who fired the guy and made him poor. The actions of the employer are relevant in defining the "context," but we only blame the thief for what he did.

Uh, we absolve people for crimes based on context all the time (or at least reduce blame or whatever), and judges/juries have lots of discretion in this area. And as for your legal hypo, I can only say that all Americans have a legal right to:
1. Not be raped
2. Not be mugged
3. Not have fighting words yelled at them.
6.1.2007 11:21pm
David M. Nieporent (www):
Bravo, I think this helps illustrate the problem with your thinking:
And as for your legal hypo, I can only say that all Americans have a legal right to:
...
3. Not have fighting words yelled at them.
That's simply incorrect. A government may under certain narrow circumstances be allowed to prohibit speech which rises to the level of "fighting words," but there is no "right" not to have fighting words yelled at you.

And the fighting words doctrine is much much much narrower than you think it is. It is not in any way a speech code which allows the government to censor speech that bothers people. It involves words that by their very nature tend to incite a breach of the peace.

(Note that the actual speech Chaplinsky was arrested for saying would almost certainly be deemed protected today. ("God damned racketeer" and "fascist" are probably much tamer than what is routinely yelled at police today. Hard to imagine any cop being incited to violence by them.))
6.3.2007 4:03am