Contemporary college students’ understanding of the First Amendment is rather poor, and as has been demonstrated here at The College Fix, it presents a real worry for the future.
What makes the University of Utah’s Autumn Barney’s ignorance all the more disappointing in this case is that she is a veteran. Other than the title of her op-ed — “The First Amendment Doesn’t, Shouldn’t, Protect All Speech” — there’s not much else she gets right.
“For example, judges have ruled that a person may not use speech that will incite violence,” she writes. “When enforced, this means someone can’t simply run around saying a certain group of people should die, or attempt to start a violent riot against a population. This isn’t legal.”
Except that … it is in most cases. As the Foundation for Individual Rights in Education’s Ari Cohn points out, “The standard for incitement is speech that is directed to inciting, and likely to incite, imminent lawlessness. Saying a certain group of people “should die” does not meet this test …”
Additionally, the First Amendment does not protect against obscenity. A prime example of this is sexual harassment. A person can’t go around harassing other people and saying sexually explicit words only to use the amendment as an excuse. Nor does the First Amendment protect discrimination; laws prohibit discrimination against other people.
Finally, an individual can’t use words to incite another person to cause harm. For example, in one sporting match, a soccer player said something horrible about the other player’s mother, and in reaction, the other player attacked him. Attacking someone is never okay, but the person who insulted the mother wasn’t protected under the First Amendment the way he thought he was. There were consequences for both players.
Respectively, sexual harassment is not “obscenity,” it is harassment. And, as Cohn says, obscenity is “material that appeals to the prurient interest, describes/depicts sex in a patently offensive way, and lacks serious literary, artistic, political, or scientific value.”
He rightly adds that determining such is “a very difficult test to meet,” despite Barney’s assertion that the law is “fairly simple” in these situations.
As for insulting another’s mother, Barney couldn’t be more wrong. Such most certainly is protected, else shows like MTV’s “Yo Momma” would never have made it on the air.
Lastly, Barney attempts to use (mainly) her first example to justify squelching campus appearances by the likes of Ben Shapiro:
Shapiro may have had the right to repeat the rhetoric that many other people were saying, but their effect, in the specific circumstances, extended beyond the words themselves. Anyone can say Shapiro’s words and be protected. But his words, in the situation, elevated hostility in listeners, inviting violence and degradation that shouldn’t be tolerated.
Sorry, Ms. Barney, but what you’re describing is essentially the ‘ol “heckler’s veto,” an instance where free speech is suppressed because it may aggrieve certain parties. And that, at a public university, is not allowed.