The latest sad example of an academic whose view of the First Amendment is at odds with over 200 years of legal history comes from the University of California Merced.
History and — wait for it — Critical Ethnic Studies professor Sean Malloy is miffed that his school is all talk and no action, as a “threatening” display by the College Republicans (UCMCR) did not result in any consequences.
Back on March 6, the UCMCR held a pro-immigration enforcement event during which some members carried signs stating “I Love Undocumented Firearms” and “ICE ICE Baby,” and provided the phone number for Immigration and Customs Enforcement.
Provocative? Sure. But illegal?
Any reasonable interpretation of the First Amendment would say “no.” However, “critical studies” minds aren’t often considered reasonable outside of the academy.
— Anna Chapman (@AnnaChapman22) March 7, 2018
Case in point: Malloy, whose research interests include “colonialism, war, white supremacy, and morality in U.S. foreign relations” and is currently working on a project which examines “orientalism and colonialism in virtual spaces through the medium of video games such as Call of Duty, Battlefield, and Medal of Honor,” says he is someone “deeply invested in creating an environment that supports and protects students from threats of violence.”
He adds he is “disgusted that some of [UC Merced] students would advocate for the government-sponsored ethnic cleansing of their fellow students.”
Malloy blasts the UCM administration for citing First Amendment protections in the face of the UCMCR “terrorizing” undocumented students, claiming such is a “dodge”:
Though people are generally free to say what they like on a street corner, forming a club at UCM is a privilege not a right, and that privilege comes responsibilities outlined in the various codes of conduct for students and student organizations.
The First Amendment does not protect speech intended to threaten groups or individuals with violence.
Were the university to take action against the students and organization involved, it would undoubtedly be controversial and the ultimate result impossible to predict. Despite the confidence with which it is so frequently invoked, the First Amendment is rife with legal gray areas, particularly about the line between protected speech and that intended to threaten.
The prof is right about one thing — the First Amendment is “rife with legal gray areas,” but there isn’t one here. The UCMCR exhibit is clearly permissible by any reasonable standard.
One, the US Constitution doesn’t take a back seat to college bureaucrats’ codes of conduct. If UC Merced were a private school, it’d be a whole other matter. But it’s not.
Two, there is no “threat” evident in these displays. ICE is a lawful government agency and advocating that it do its job can hardly be contrary to free expression protections. The “undocumented firearms” placard also is legitimate political speech concerning the very next amendment in our Bill of Rights.
At this point, it may be helpful to recall how critical studies academics think:
Too often, we are guided by our attachments to certain ideas such as “free speech” to the extent of seriously neglecting the experiences of the oppressed. Focusing on rationality, debate and traditional Western concepts like free speech can tie us to established ideologies and numb us to the pain of those around us. It can easily be a way, consciously or subconsciously, of imposing the will of the powerful upon the oppressed.
Thankfully, at least for the nonce, the majority of American legal minds still hold as the Seventh Circuit Court of Appeals’ Judge Richard Posner:
What is most arresting about critical race theory is that…it turns its back on the Western tradition of rational inquiry, forswearing analysis for narrative. Rather than marshal logical arguments and empirical data, critical race theorists tell stories — fictional, science-fictional, quasi-fictional, autobiographical, anecdotal—designed to expose the pervasive and debilitating racism of America today.
The judge labeled critical race theorists “the lunatic core of radical legal egalitarianism.”
If the critical studies crowd ever gets its way, the courts (and jails) will begin filling up with folks like Scotland’s Count Dankula. And we certainly wouldn’t want that.
IMAGE: Sam Graham/Flickr