Below is my column in the Hill Newspaper on the call of House Minority Leader Nancy Pelosi to cancel the permit of a conservative group seeking to hold a “Patriot Prayer” event in San Francisco. As discussed in the posting today on Berkeley Mayor Jesse Arreguin’s call to end a Free Speech event, leaders are latching on to a new way to limit speech. While professing fealty to free speech, Pelosi, Arraguin, and others seek to deny it on the basis for how critics might react. The West has grown weary of Free Speech and these are the voices calling for greater restraints and regulation of speech. It is the new anti-speech pretext: leaders seek to protect the public from free speech in the name of public safety.
Here is the column:
Many in the United States appear to be losing faith (and patience) with free speech. Various Democratic leaders and commentators have called for limits on free speech to target “alt-right” groups, from declaring them terrorists to denying them the right to demonstrate in public. This week, House Minority Leader Nancy Pelosi (D-Calif.) offered a mixed metaphor as a substitute for our bright line rule protecting speech.
Pelosi demanded that the National Park Service deny a permit for the conservative “Patriot Prayer” event in San Francisco. In an interview, she said, “The Constitution does not say that a person can yell ‘wolf’ in a crowded theater. If you are endangering people, then you don’t have a constitutional right to do that.” In point of fact, there is nothing unlawful about yelling “wolf” in a crowded theater. Wolf attacks in movie theaters are not particularly common and unlikely to cause panic. Most urban audiences would assume it was a misplaced reference to a Kevin Costner film.
Pelosi appeared to confuse the quote of Oliver Wendell Holmes in the Supreme Court decision in Schenck v. United States, which said, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Pelosi also appears unaware that Schenck, which is viewed as one of the court’s most troubling rulings, was effectively overturned in 1969 in Brandenburg v. Ohio.
Ironically, Schenck is a case that should deeply offend most people. Charles Schenck and Elizabeth Baer were convicted under the Espionage Act of 1917 for simply opposing conscription. The two socialists called on their fellow citizens not to “submit to intimidation” and to “assert your rights.” They argued, “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain,” and described military “involuntary servitude.”
Today we view such statements as core protected speech, but Holmes said that opposing a draft was like “falsely shouting fire in a theatre and causing a panic” and creating a “clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Consider that for a second. Merely opposing a war and conscription was deemed to be causing a “panic” and a “substantive evil” that the government must prevent.
Pelosi’s garbled use of Schenck is telling. It is not those speaking but those who want to silence speech that are a “clear and present danger” to our system. Just as the Wilson administration was furious with those who opposed the war, Pelosi is furious with those who oppose her values. By simply declaring their speech as inciteful, Pelosi wants the government to stop them from speaking on public grounds.
Of course, she ignores that many would view liberal groups as inciteful and “evil.” Many conservatives have objected to the violence at Black Lives Matter and Antifa protests. Indeed, many liberal groups now oppose the same type of military interventions by the Trump administration that Schenck opposed in the Wilson administration.
Pelosi’s “schencking” of free speech places her on the wrong side of history but nevertheless with a growing group of speech-phobic liberals. Among the chorus of people criticizing free speech as a weapon of the right are two professors who wrote recent columns in the Washington Post and New York Times.
In a column in the Washington Post, Skidmore College Professor Jennifer Delton decried how “provocateurs seek to bait liberal institutions by weaponizing the concept of free speech.” She warned that free speech is facilitating rather the deterring these groups and that “quoting Voltaire is not going to preserve anyone’s liberties — least of all those populations most vulnerable to vicious racist, misogynist and anti-Semitic attacks.”
Delton encouraged people to move beyond free speech inhibitions and, chillingly, that liberals have previously denied free speech to different groups: “American liberals were forced to sidestep First Amendment absolutism to combat a political foe… when New Deal liberals purged U.S. communists from American political life.” While Delton stops short of calling for purges of anyone deemed “alt-right,” she suggested that, given “the threat posed by the actions of alt-right provocateurs,” past censorship and criminalization of speech “may bear revisiting.”
In an editorial in the New York Times, K-Sue Park, a housing attorney and the Critical Race Studies fellow at the UCLA School of Law, rails against “color-blind” approaches which “support hate-based causes” and insists that such “colorblind logic [has] never secured real freedom or even safety for all.” She calls for an end to this broad protection of free speech as based on “a misguided theory that all radical views are equal” and that ‘it fuels right-wing free-speech hypocrisy.”
These voices advocate content-based discrimination of speech, long anathema in our country. It is part of a trend sweeping across the West with crackdowns on any speech deemed intimidating or inciteful or hateful. Pelosi would bar the right of conservatives to speak on the basis that their event might pose a threat to public safety, particularly given counter-demonstrators drawn to such events. Thus, free speech depends not only on what you are saying but how it will be received by others. The rally was canceled by the organizers out of concern over counter demonstrators, but Pelosi believes that the group should not have been given the choice.
We do not need the First Amendment to protect against popular speech. Pelosi and others seek to convince a free people to surrender a core freedom by focusing on how free speech is being used by unpopular groups. They might just succeed in bringing about a new era of censorship. Voices calling for speech limits play to the fears of a society that can come to view free speech as an abstraction or even an irritation. The truly sad part is that they use free speech to convince others to diminish it.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.
Maybe it is time for the Free Speech argument to come before the Supreme Court again?
No, it’s time for liberals to push back against illiberalism. I was not a fan of Obama’s presidency. But I will always give him credit for pushing back against the illiberalism he saw happening on college campuses. He was very consistent about it and I’m grateful to him for it. Here’s one example:
But I will always give him credit for pushing back against the illiberalism he saw happening on college campuses.
Except when the federal Education Department was promoting it.
and now the NK heats it up again. But then in six or seven months it’s hard to rebuild a military that was cut in half by a party whose ideologyh favors the other side and NOW they are whining about this and that and whatever? Pelosi and company especially the resurfaced schumer have a lot to explain why they rejected our Constitutional Republic and Constitution and are now bitching for what they are in very large part responsibile for. It’s not a Soviet and it’s not a democracy it’s a Repesentative Constitutional Republic not a socialist autocracy. Apoloogize and get in the end of the line for immigration and citizenship or get out. That includes the entire left from RINO to DINO
Obongo “fundamentally transformed” the American military into a politically correct, “multicultural” circus act with a “keystone cops” navy capable only of being rammed by cargo ships and an army capable only of beating irregular militias with muskets.
“In a column in the Washington Post, Skidmore College Professor Jennifer Delton decried how “provocateurs seek to bait liberal institutions by weaponizing the concept of free speech.”
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She’s right,of course. It’s the greatest weapon the citizen has against his government and the status quo. It can be used to undermine both and that’s why it’s always under constant attack. Antifa knows that; so does Comrade Mayor in Berkeley and that’s why we all have to know it.
Pelosi is such an idiot that she can’t even get the metaphor right. Yelling “fire” in a theater is the classic example, not “wolf”.
Luckily we have the Democrats’ fealty to political correctness that has kept her at the head of the Democratic Party in Congress and rendered them feckless vis-a-vis getting anything done. They are so afraid of their various fractured factions labelling the leadership as “sexist” were Pelosi to be removed that she’ll be there until she steps down, guaranteeing a lack of leadership in the Democratic portion of the House for the foreseeable future.
As Nancy Pelosi would say, “You can’t yell ‘DOG!’ in a crowded litter box.”
I read that there was only one “white” speaker in the lineup of speakers at the rally. The other seven or eight speakers were all “non-white” and Pelosi is the one who labeled it a “white supremacist” event. She is the one who used this to get her base stirred up. Pelosi is the one slandering the group seeking to have the rally. And the media is colluding with her and enabling her. I also read that even the ultra-left Southern Poverty Law Center did not label this group a “hate group” – so what is Pelosi doing with her irresponsible rhetoric? Pelosi is the ‘wolf’ shouting fire so that she can intentionally cause the confusion that shuts down free speech for this group. Don’t let them get away with this. Just Say No to leftist lunatic leaders and media morons. Just. Say. No.
This is the free speech of Antifa:
Look at the videos.
http://thefederalist.com/2017/08/30/berkeleys-antifa-takeover-warning-evil-sides/?utm_source=The+Federalist+List&utm_campaign=428264cbdd-RSS_The_Federalist_Daily_Updates_w_Transom&utm_medium=email&utm_term=0_cfcb868ceb-428264cbdd-83964361
Verbal threat to public safety does not become a crime until it is verbalized, so Nancy Pelosi wants law enforcement to actively restrain citizens to prevent crimes in advance of commission of said crimes. Or does she want law officers to act on thought crimes? Damifino. The woman has left me in a state of confusion ever since she gave George W. a free pass with her “Impeachment is off the table” thing, inviting him to breach the constitution with a promise of a free pass if he did so. She may be from Earth, but her brain is from a different planet.
Her brain is from the planet, Botox.
Why can’t the city protect a peaceful rally? Because the leftist Democrat so-called “leaders” are choosing to give the power to mob rule instead of law enforcement. It is a choice. Don’t let them get away with it.
Great column! Here is an excerpt from another: “Clearly, this elitist, monolithic mindset is at odds with everything America is supposed to stand for.
Indeed, we should be encouraging people to debate issues and air their views. Instead, by muzzling free speech, we are contributing to a growing underclass of Americans—many of whom have been labeled racists, rednecks and religious bigots—who are being told that they can’t take part in American public life unless they “fit in….
The attempt to stifle certain forms of speech is where we go wrong.
In fact, the U.S. Supreme Court has held that it is “a bedrock principle underlying the First Amendment…that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.” For example, it is not a question of whether the Confederate flag represents racism but whether banning it leads to even greater problems, namely, the loss of freedom in general.
Along with the constitutional right to peacefully (and that means non-violently) assemble, the right to free speech allows us to challenge the government through protests and demonstrations and to attempt to change the world around us—for the better or the worse—through protests and counterprotests.”
http://www.washingtonsblog.com/2017/08/freedom-speech-hate-legal-ins-outs-right-protest.html#more-69296
Speech is not a weapon. Words are not bullets. Dissent does not threaten public safety until the dissenter utters verbal threats to do physical harm or worse to members of the public. Verbal threats against the public can be prosecuted under existing criminal statutes. There is not yet any compelling interest of the State to resume The Palmer Raids nor to expand anti-terrorism laws to prosecute political dissidents of any stripe or camp. We’ve been down this road before. Our predecessors repeatedly rejected a police-state after every last attempt that our government made at it. We, too, will eventually, inevitably reject a police-state, if, or when, our current government makes an attempt at it. And the rest will be commentary once again.
“Sticks and stones may break my bones, but words can never hurt me” — is a lie. That’s why the violent leftists show up at these rallies wearing masks and swinging sticks isn’t it? They use violence and intimidation to stop ‘words’ right? If local officials won’t protect speech and their citizens, I say send in the Marines.
TBob, I presume you’re being sarcastic, again. That words can never “hurt” us [physically] is true. That words could hurt us emotionally is also true. We do not need US Marines to protect us from emotional harm. And, if we need to be protected from physical harm in our own country at the scale at which Antifa physically harms people, then our local law enforcement officers would still be preferable to sending in The Marines. Military operations against Antifa would be an extreme over-reaction. But then you were being sarcastic; weren’t you,TBob?
Diane, the KKK and Antifa have a degree of protection from officials on the left. Eisenhower noted this and ended up quickly sending in the troops. I don’t like federal intervention into states, but when first amendment rights are being thwarted by violent operatives of the local political establishment (on the left) then either the local political establihment does its sworn duty or that duty is taken up by the governor of a state. If that government doesn’t act then Eisenhower’s method is the next step.
The feds became very much involved in restraining the KKK because local and state Democratic leadership refused to do so and used the KKK as their violent operatives.
Congratulations, Allan. You made an excellent point. If Trump wants to send in paratroopers to escort Milo Yianoupolis and Ann Coulter past menacing Antifa hecklers in Berkeley I would have no objection. If The Congress wanted to enact an Anti-Heckling Law, or even an Anti-Menacing Law, I would have no objection. If local law enforcement officers arrested menacing hecklers for disturbing the public peace, I might actually applaud their efforts. Those are all permissible solutions to our current impasse.
Here’s what’s impermissible: A government that declares menacing hecklers who disturb the public peace to be members of a terrorist group who can be arrested, held in detention without being charged, subjected to enhanced interrogation techniques, subject to extraordinary rendition, deprived of legal counsel and tried before a military tribunal for being menacing, heckling, terroristic disturbers of the public peace.
By the way, Allan, the people who opposed the desegregation of the public schools in Little Rock, Arkansas, were attempting to nullify a ruling of The Supreme Court of the United States. There’s such a thing as The Supremacy Clause in The Constitution of the United States. Eisenhower had sworn an oath to preserve, protect and defend our Constitution. So, do you have anything like nullification of The Supremacy Clause to pin on Antifa, yet, Allan?
It seems Diane that we have some agreement in that we both recognize freedom of speech for individuals. The first step is for the locality to provide protection. Take a look at NYC. That city has some of the worst people coming to NYC and the United Nations. Do you note that violence is not permitted? There appears to be little to no violent threats visible against any of them. Then go to Columbia University in upper Manhattan. Should an Ann Coulter go threats of violence are permitted. Sometimes a representative of a killer regime speaks there, but with little threat of violence and a warm welcome. This is pure leftist politics denying freedom of speech that isn’t leftist, anarchist or even those advocating state violence in their own countries.
The first thing that should be done is to arrest anyone that is violent or causes property damage. The university also has the right to seal off the campus to non students and people not invited such as Antifa. Columbia refuses to do the right thing so the city or the state should enter the picture and enforce the right of free speech.
If that cannot be accomplished then the federal government needs to enter the picture with troops or with sanctions. The latter is needed because there are so many universities that permit free speech to be inhibited by violent acts. Remove all federal financing. Remove 501 c 3 status or whatever status it is for education facilities. Federal troops are the last thing we want.
In the meantime all these groups should be investigated for potential terrorist activities along with their funding.
“ Here’s what’s impermissible: A government that declares menacing hecklers who disturb the public peace to be members of a terrorist group who can be arrested, “
You are jumping the gun. Before one can call someone a member of a terrorist group one must define what that terrorist group is. I think leftist politics is preventing us from doing so at the present.
“The Supremacy Clause to pin on Antifa, yet, Allan?”
I cannot yet adequately define the group because our officials are unwilling to do so. That is super dangerous to our free society. We are permitting a group much like the brownshirts to dictate policy and you know where that leads.
It seems to me that the Internet changes everything. It used to be that the only way to advance an idea or position was to march in the street with signs. Today (and hopefully indefinitely) anyone can advance their ideas online. (Don’t suppress online content!!) without the danger of weapons and physical violence. Online comments are viewed by far more people than street marches. You can develop a camaraderie with other commenters and can know that others share your thinking — all without having to pay for police, tear gas, and medical help for the injured. I don’t see any value today in street marches. They seem to serve no useful purpose that the Internet has not replaced and improved.
““The Constitution does not say that a person can yell ‘wolf’ in a crowded theater. If you are endangering people, then you don’t have a constitutional right to do that.””
Excellent post. ‘Can’t yell fire in a crowded theater” vs the obstruction of speech is very well explained by Alan Dershowitz. He calls the yelling of fire not as much free speech as the use of adrenaline to cause people to dangerously react and run to the doors without thinking. The anti war pamplet, etc. called for people to think before acting making Justice Holme’s decision an excuse to judge a case based upon what he wished to be the outcome rather than using the law which would have led to a different decision.
“Public safety” and “It’s for the children” are phrases that mean you are about to lose your rights, your money, or both.
You might actually devote a column to reviewing just what it is about the self-understanding of Pelosi and Arreguin which makes political opposition such a problem for them. Just comparing the faculty and administration at GW with the hourly staff ought to give you some insight. Comparing different fractions of the student body might also. You be Margaret Mead. They be the New Guinea tribesmen. Go to work.
I remember when the ‘troubles’ were going on in Northern Ireland. People were routinely getting killed, either at demonstrations or home in bed. The anger and argument subsided. But, one of the main contributing causes to the ‘troubles’ reducing to a point where someone like a Clinton could come in and get both sides to shake hands or at least stop, was the reduction of focus in the newspapers. After a while one just doesn’t give a sh*t anymore about this stupidity. The nazis and their ilk should be able to spout off all their vile and vitriol. Eventually it will sink in that Darwin will take care of them. The left has the moral high ground but when it steps down to do battle it becomes hard to distinguish the two. Leave the racists alone to rant and rave and focus on equality, not out shouting the other side. Have a little faith. Most Americans lean more to the cause of equality and universality than those that champion this filth.
Pelosi’s “public safety” veto of free speech is entirely bogus. Everyone knows that attending a contentious political demonstration could result in physical injury, whether intentional or unintentional. Counter-demonstrators are willing to take that risk. They could be punched or shoved or trampled by the crowd. Anyone who is concerned about his or her safety has the option to stay away. Crowds can always present danger, but that is no reason to deny free speech for those who are willing to attend, or for those who prefer to listen to the speakers over media from afar.
I have decided that liberals should be classified as terrorists. This has gone too far.
Paul, you’re entitled to your opinion, the vote and whole bunch of other things, to boot; but you’re not entitled to the decision-making authority to classify “liberals” as terrorists.
P. S. I know you know that. But I’m pretending otherwise. That seems to be the fashion here.
What would you call the KKK when they were politically aligned with the Democratic Party and violently assaulting the rights of African Americans to exist? One might choose a different term than terrorist, but that would first require a definition of what terrorism is.
PCS does not need to be “entitled to the decision-making authority to classify ‘liberals’ as terrorists” because he knows it is a physical axiom that liberals are terrorists.
George, you don’t get to lock up your political opponents and throw away the key. If it were true that liberals are terrorists, then what else besides locking liberals up and throwing away the key would you propose to do with your political opponents?
Great column; time for all of us – left or right – to speak up to defend against this erosion of a fundamental right.
Don’t worry, sweet, tolerant liberals. You are going to get your European style hate speech laws soon enough.
And Professor Turley, you are going to be called a “Nazi” for simply supporting free speech. I am glad you have tenure.
antonio, We have a Constitution that will prevail. We will never be like Europe. We revolted against those inferior people.