Can K-State boot Jaden McNeil and still honor the First Amendment?

KC Star: 

A select group of student-athletes at Kansas State have begun circulating a letter on social media that states they will not play in games or participate in any donor or recruiting events for the Wildcats until the university makes changes that address racism on its campus.

The letter demands that K-State administrators create a policy that will expel any student who openly displays racism on any platform, such as social media or at school or athletic events.

Another demand: The university must deliver “strong consequences” to K-State student Jaden McNeil, who founded the white-supremacist group America First Students in Manhattan and posted an insensitive tweet about George Floyd that sparked a mushroom cloud of outrage from the Wildcats’ Black student-athletes on Friday.

I share the rage that K-State students feel about McNeil. I don't know, though, how K-State accommodates their demands without running afoul of the First Amendment. I don't even know if it should.

The law on this seems pretty clear:

In case after case, courts across the country have unequivocally and uniformly held speech codes at public universities to be unconstitutional. Public institutions of higher learning attempting to regulate the content of speech on campus are held to the most exacting level of judicial scrutiny. Typically, courts find speech codes to violate the First Amendment because they are vague and/or overbroad. This means that because the speech code is written in a way that (a) insufficiently specifies what type of speech is prohibited or (b) would prohibit constitutionally protected speech, it cannot be reconciled with the First Amendment’s protection of freedom of speech.

That's the "can" part. How about the "should?"

I've written before why I think restricting speech might be harmful to folks like the angry K-State student-athletes, from a purely utilitarian standpoint.

If American governance and culture are indeed soaked in hundreds of years of white supremacy, and:

If the ACLU protects the rights of anybody to speak, no matter how unpopular the stance or against the grain of government or public opinion, then:

Organizations like Black Lives Matter that are seeking racial justice are probably the prime beneficiaries of the ACLU's work and an expansive application of the First Amendment. After all, protests by minority activists — no matter how justified — are rarely popular.

The ground has shifted since I first wrote that. The BLM movement is relatively popular now, and that's a good thing! But activists had to endure a few years of Trumpism and a cultural default to honoring police officers before that was the case. They were able to make that case because of their right to free speech. The First Amendment protects dissenters and scoundrels. The main defense I can offer for the "defending scoundrels" part is that they are part of the price for "defending dissenters." And the right to dissent is elemental to democracy. 

My heart sides with K-State's minority students. But kicking Jaden McNeil out of school breaks down the protections that allow Black Lives Matter activists to have a voice and be effective with it. I'm not sure the conflict can be resolved.

Senate GOP investigates Facebook

If Facebook really has biased its feed results against conservative outlets, that truly sucks. But I wonder if my conservative friends think that warrants government intrusion into the company's affairs, and if so: On what basis?

Gary Schmitt, the forever war, and the First Amendment

Let's gut the First Amendment forever! That's not precisely what Gary Schmitt says today in The Weekly Standard, but that about covers the gist of it:

Congress and the president should enact a statute that straightforwardly makes it illegal to publish or circulate materials that support, praise, or advocate terrorism as long as we are still formally at war with al Qaeda and its allies.

Schmitt says such a statute could be "narrowly drawn" so that we don't go back to the bad old days of seditious libel. Maybe. But we still don't know which circumstances would cause the United States Congress to end the "war" authorizations spelled out in the AUMF and various other laws. Given the way our leaders have interpreted that so far, it might be a crime to praise the Muslim Uighurs who have rebelled against the Chinese government, or the Chechnyan Muslims who have revolted against rule from Moscow. More likely it might be used to prosecute Americans who praise Hamas. And that's where we start to get into plausibly scary territory.

Generally speaking: We don't know that the "war" will ever end. Which means a statute that sunsets when the war does is basically a statute on the books forever. Wanna draw First Amendment considerations a little more narrowly? You may well have the power to do so. Just don't pretend it's a temporary state of affairs.

Soon, foreign nationals may have more ability to influence elections than you do

At least, that's what I take away from Paul Sherman's Wall Street Journal piece today. There's a case winding through the courts in which foreign nationals—both residents of New York—are suing to be allowed to make contributions to political campaigns, saying they have the right to do so under the First Amendment.

On Dec. 12, the Supreme Court passed up its first opportunity to announce whether it would take the case. Some observers take this as a hint that the court is going to let the D.C. panel's ruling stand. That would be a mistake, and a sharp reversal from the hard line the court has taken recently on speech-squelching campaign-finance laws. 

The panel's ruling stemmed from a conviction that "foreigners" are different and that foreign speech poses a unique threat to the American political system. As to the first point, foreigners surely are different—they can be prohibited from voting, holding elective office, or serving in certain roles of government authority. But none of this has any bearing on whether their speech is entitled to First Amendment protection. After all, corporations are not allowed to vote but, as the Supreme Court recognized in Citizens United, they are still permitted to speak out about candidates.

Sherman is a cheerleader for letting foreign citizens contribute to American campaigns, but man this seems like a bad idea. If the Supreme Court affirms his vision, it will—in recent years—have allowed both corporations and foreign nationals unlimited power to promote American political candidates of their choosing. You know who this crowds out of the game? Actual, flesh-and-blood voting American citizens—folks whose political cash contributions are necessarily small, for the most part, if they exist at all.

I'm not sure how to write this without sounding like a paranoid crank. I really don't believe that free speech is a zero-sum affair. I'm not a nativist. I do believe that the best answer to bad speech is more speech.

But yeah, I'm concerned that a group of wealthy citizens of China or Israel or Russia could get together and bundle their contributions to tip the balance of an American presidential election. I'm concerned that if money equals speech, then it's often impossible to answer bad speech with more speech in any meaningful way. And I'm concerned that—again—actual flesh-and-blood regular American citizens are going to wind up the least influential players in the political process.

On the last count, it's possible that's already happened. But it should be resisted at each and every turn.

Dirty hippies and the First Amendment

Regarding this: I’ve had to make this point a couple of times in the past few days, so I might as well make it here: You don’t have to *like* the Occupy folks to think that abusive policing is bad.

There’s an old saying that—in my view at least—once represented the American ideal: “I don’t like what you say, but I’ll defend to the death your right to say it.” That ideal has been replaced, it seems, with the idea that dirty hippies deserve whatever they get.

I like the old way better. It does require that I hold myself to the same ideal—that I allow room for people to be (say) bigoted or homophobic or, maybe, just a little too solicitous of the rich and powerful. I should defend their right to speak their minds, and get angry if a cop pepper sprays them for doing so. It’s easy to be gleeful when our opponents are silenced, but it isn't actually right.

On gay marriage: Civil liberties are not a zero-sum game

I respect Rod Dreher's work on most things, even though I disagree with much of it, because he's thoughtful and eloquent and tries to think outside his own biases. Except when it comes to matters of sexuality: Then turns a bit shrill. So it is today, when he posts the story of a U.K. "housing manager" who received a demotion for criticizing gay marriage—on his own time. Says Dreher: "Move along, nothing to see here. It didn’t really happen, and if it did, this man, History’s Greatest Monster, must have deserved it for his thoughtcrime."

This is part of the argument made by Dreher—and anti-marriage conservatives more generally—that allowing gay marriage will necessarily entail a restriction on the rights of Christians to hate gay marriage. There's just one problem with the evidence they marshal in support of the argument: It's almost always from Europe, and Europe has a very different tradition with regards to civil liberties than the United States.

For example: I’m from Kansas, home to the notorious Fred Phelps family—the folks who display a kind of homophobia far beyond what’s on display in Dreher's example. And a number of family members have been employed over the years as state or county civil servants—despite the fact that the family is held in very low esteem by the community at large. The state doesn't have the right to boot them for privately held opinions—even those that are publicly expressed—that don't interfere with the performance of their duties. What's more, we're the same country where the ACLU defends the rights of racists to march in public.

This isn't to say Dreher's nightmare scenario can't happen here: We must always be vigilant in defense of our rights. But it's much, much, much less likely to happen—and it's unlikeliness makes Dreher's concerns seem desperate instead of considered. The great thing about the First Amendment is that it protects people with wildly differing—even diametrically opposed—outlooks on life. In the United States, at least, civil liberties aren't a zero-sum game. In my ideal future, homophobic old housing managers will be able to keep their opinions and their jobs in the same society in which gays, lesbians, and transgender people are free to exercise their rights to marry each other. The day can't come too soon.

Today - And Today Only - I Root For Fred Phelps

The gay-bashing folks of Westboro Baptist Church had their day in the Supreme Court today, contesting a lawsuit that would force them to pay millions of dollars in damages for demonstrating near a military funeral.

The church's actions are distasteful in the extreme. But it's important to note that a number of news organizations -- including the New York Times -- have weighed in on the side of the church. Limiting Fred Phelps' ugly free speech, you see, might have real consequences for the speech the rest of us express and hear.

Respondents were found liable for millions of dollars in damages for intrusion and intentional infliction of emotional distress based solely on their publication of offensive religious and political opinions -- opinions which the Petitioner encountered not at his son's funeral, but only several hours later by watching news reports, and then weeks later after conducting an online search. Imposing tort liability for such speech will chill the activities of all who speak or publish on controversial issues.

In other words, the family didn't actually encounter the Phelpses at the funeral. But they knew the Phelpses were out there, somewhere near -- 1,000 feet away, in compliance with funeral picketing laws -- being offensive. In fact, the family is claiming to have been intruded upon because they found offensive material by searching for it on Westboro's web site. With all due respect to the family, that's a really lousy foundation to start restricting free speech rights: It doesn't really punish the Phelpses for intruding on their privacy, but for expressing repugnant opinions. That's not how it is supposed to work in America.

Either you believe in the First Amendment, in other words, or you don't. Read the whole brief, and you'll get a sense of how silencing Fred Phelps might be a step down the slippery slope to silencing all of us.

Michael Smerconish is wrong about Fred Phelps

I really don't want to be in the position of continually defending professional homophobe Fred Phelps. He's an evil man with an evil belief system who has brought added grief to hundreds -- if not thousands -- of people by picketing funerals with his "God Hates Fags" message.

But I believe that the First Amendment give Fred Phelps the right express those views -- no matter how odious, no matter how provocative the time and place of his expression. Michael Smerconish, writing in today's Philadelphia Inquirer, disagrees.

By picketing Lance Cpl. Snyder's funeral, didn't Westboro Baptist infringe upon family members' First Amendment right to freely exercise their religion? Which on March 10, 2006, took the form of a burial service at St. John's Catholic Church in Westminster, Md.

And because the Westboro demonstrators weren't protesting on a street corner or in a public park, it could also follow that they infringed upon the Snyders' right to peaceably assemble for that private funeral.

The point is that while Phelps and his flock may believe they have a constitutionally protected right to protest at a funeral, that right should not come at the expense of the Snyders' right to peaceably gather at a Catholic funeral. Especially when that practice involved mourning the death of an American hero.

"When the Fourth Circuit decided in favor of Phelps against Mr. Snyder, implicitly they decided that Mr. Phelps' rights were more important than Mr. Snyder's rights," Sean Summers, the York, Pa., lawyer representing the Snyder family, told me in a phone conversation last week. That should not stand.

Get past Smerconish's troubling implication that Fred Phelps' rights -- and by extension, our rights  -- are somehow less valuable when they come in conflict with the desires of a military family. Smerconish's argument is that the Snyder family was less able to exercise their own rights to religion and peaceably assemble because of the Phelps protest.

And I don't think that's true. The funeral still happened. The Snyders still assembled. They still gave their son a Catholic service. It appears that they exercised their Constitutional rights fully -- but want to deny Phelps the opportunity to do the same. And I don't blame them -- Phelps' protests truly are execrable -- but that doesn't make them right.

It bears repeating at every opportunity: The First Amendment protects all variety of assholes, troublemakers, demagogues and rabble-rousers. It doesn't just protect popular speech because, well, popular speech doesn't really need protecting does it? The First Amendment protects even Fred Phelps. Because of that, it protects us all.