Does The Washington Post editorial board have the slightest familiarity with First Amendment precedents?
In response to the racist-banana incident at the private American University – now under investigation by the U.S. attorney in D.C. as well as the FBI – the editorial board has declared that all colleges should censor students if someone thinks their speech or behavior is racist:
Two-bit provocations such as hanging nooses on campuses play on emotions made raw in the wake of a presidential campaign that featured the vilification of minorities and barely veiled race-baiting. For university administrators, the challenge is to address that legitimate pain with sensitivity and make crystal clear that racist signs, symbols and speech are off-limits.
UCLA Law Prof. Eugene Volokh, a First Amendment scholar, doesn’t try to explain away what appears to be a clear and chilling call for censorship from a legendary newspaper. He writes in his own Post column today:
This is an editorial, the product of carefully considered labor on the part of a group of people, not an extemporaneous remark …
And the editorial’s proposal is an awful idea. At public universities, it would violate the First Amendment; at private universities, it would violate many of the universities’ stated commitments to open debate, as well as basic principles of academic freedom.
The editorial board has no clue how wide a swath of speech it would be implicating, according to Volokh: Claims of “whites being an oppressor race” could just as easily be punished as bananas found hanging from makeshift nooses.
The same goes for criticizing Islam as illiberal, calling for stricter immigration limits or condemning Israeli policies:
All such advocacy that runs against university administrators’ political views would be deterred when “university administrators” “make crystal clear” that “racist … speech” — racist in the views of whatever disciplinary committee is making decisions — is “off-limits.”
Hans Bader, former lawyer in the Department of Education’s Office for Civil Rights, said in an email today the Post has reached the “opposite extreme” from its past position:
Once upon a time it called for Congress to pass Congressman Henry Hyde’s bill to ban campus speech codes even at private campuses. Of course, that was years ago, when moderate Democrats still existed. …
I guess free speech no longer matters in an “era defined by trigger warnings and safe spaces.” Forget that pesky First Amendment thing.
Brookings Institution scholar Stuart Taylor, co-author of The Campus Rape Frenzy, responded to Volokh’s post:
This is huge, and horrible. The Washington Post has — for the first time, as best I can tell — attacked the core of free speech and the First Amendment. Perhaps when Trump attacks the First Amendment by filing a billion-dollar libel suit against the Post, it will come to regret its role in tearing down our constitutional protections.
[The op-ed was] accusing whites of committing virtually all mass murders, when in fact, whites, who are three-quarters of the U.S. population, actually commit slightly less than their share of mass murders (moreover, about half of all murders in the U.S. are committed by blacks, according to the FBI’s Uniform Crime Reports and Justice Department data). …
The Washington Post has also published other racist op-eds, such as one arguing that blacks should be given 5/3 of the votes give to whites, to make up for the racist 3/5 compromise in the original constitution.
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