THE FIRST AMENDMENT

UPDATE AND CLARIFICATION: 

Some readers, robed and otherwise, have reached out to Rumpole to let us know that the First Amendment does not apply to a private institution like Harvahard. We respond with the best legal response we can muster- DUH. 

Our argument is not that the First Amendment covers private institutions like Harvahard and the students who attend.. We know that the First Amendment does not extend that far- although arguably the reach of the commerce clause cases used to integrate the South and stop farmers from eating their own wheat ( See Wickard v. Fulburn)- might be used to extend federal ideals about hate speech into private institutions. 

 Our argument is that that the university presidents did a bad job of explaining that the universities were choosing to apply First Amendment standards to speech on campus to allow the free expression of ideas- even hateful ideas. 

We fully support the proposition that as a private institution, a private university can set as many rules as they want about speech and the students who choose to attend, choose to attend accepting that their speech will be regulated. 

We hope we made that clear. Meanwhile, Kudos to the Harvard faculty for supporting their president.  

The First Amendment only works when its boundaries are pushed. It is easy to support free speech in the name of standing in front of the White House holding a sign saying "Stop Global Warming". It is harder and more important when the speaker is advancing repugnant ideas. 

Which brings us to the disastrous testimony before congress of several university presidents this past week.  They did an awful job defending an important principle. 

Students at Colleges and Universities are- as young people are wont to do- taking up radical ideas and supporting not just Palestinians, but Hamas- the criminal terrorist organization that did the unspeakable acts we all know about.  They chant Hamas slogans and some cheer the death of Jewish people. And the University presidents would not take the step Congress wanted- promising to expel the students for saying such awful things.  [ SEE OUR UPDATE- THIS IS OUR ARGUMENT NOT THAT THE FIRST AMENDMENT EXTENDS TO PRIVATE UNIVERSITIES]. 

And here is why they are right. Who determines that the speech is "awful"? Is there a speech czar? And if we now agree that the speech in question is awful, do you want President Trump's administration determining what he and Stephen Miller think is awful speech that should be punished? 

That is the concept that most people uneducated in the law- and many lawyers and judges - and certainly members of Congress - do not get. You cannot punish speech because eventually someone else whose ideas you do not agree with will be in the position to punish your speech - and then what? We cannot have speech decided on the principle of whose ox is gored. 

What if Harvard's President was an avowed vegan and animal rights supporter and decided to ban any students who ate and supported the right to eat hamburgers? Millions of cows are slaughtered and to animal rights activists the eating of meat should be criminalized.

In the 1960s radicalized students at colleges and universities staged sit ins at university presidents' offices, disrupted classes, and had large demonstrations supporting the "anti-American" ideals of ending US involvement in Vietnam. They were traitors. American boys were dying to fight communism and no student should be allowed to get an education- much less a free one at a public university- while supporting such repugnant ideas. 

Civil rights activists in the 60's supported the "awful", "sinful", "unnatural" concept of a black man marrying a white woman. It was offensive to religion, what the bible taught, it was against the law, and such speech should definitely be punished. Ditto in the 1980s and 90s for two people of the same sex engaging in sex.   Why should speech supporting illegal acts like two men engaging in sex with each other be allowed? 

And in that vein, why should offensive speech supporting a criminal terrorist organization like Hamas be allowed?  There are victims of Hamas, survivors who have been brutally assaulted, children who saw their parents murdered and burned right in front of them, who should not be subject to such offensive speech. No one should be allowed to support Hamas in public the thinking goes. 

The reason why is - because.

Because if we have a First Amendment that means anything, then it protects "good speech" and "bad speech". Because we do not have a speech czar because the founders recognized the dangers of giving any government the right to regulate speech.  Are there lines? Sure. You cannot yell "fire" in a crowded movie theater. You can demonstrate against integration, but you cannot yell  "There is a Jap- let's kill her!" to the crowd. 

You can say and sing all day long the praises of Hamas, and you can even applaud the killing of Jews, but you cannot point to a Jewish person and tell the crowd to kill them.  You can even walk into court wearing a "fuck you judge" t-shirt. It's been done and the prosecution was reversed on appeal. 

Those are the lines that the university presidents were trying to show Congress. They failed. So we took a shot.  [SEE OUR UPDATE ]. 

Our universities are nothing if they do not allow young people to express ideas, explore them, debate them, challenge them, and eventually make up their minds. The idea of a self-governing nation of people where all men were created equal was repugnant to the royalty of Europe and would not have been allowed to have been debated in the colleges of Europe. But we allow such debate here. 

You can hate this post and all the things we have said supporting the rights of innocent Palestinians to be safe from being bombed and killed. 

Are you ready to cross the line and have the courts order the police to shut us down?