Why We Should Resist it With Free Speech, Not Censorship
Table of Contents
Distinguishing between vile words and violent conduct
U.S. law's appropriate distinction between protected and punishable discriminatory speech
More speech, not less
CHAPTER 1) Overview
What is Campus censorship
Why should we specially protect Beyond the First Amendment
The U.S. law approach has substantial international support
The anti-democratic enforcement of Private sector institutions should protect speech
Cost-benefit analysis of President Obama's opposition to Non-censorial alternatives
CHAPTER 2) Distinctions between punishable and protected discriminatory speech
Under U.S. law, much discriminatory speech may be punished, and all may be condemned
The multiple contexts in which discriminatory speech may be outlawed
Punishing discriminatory speech under the emergency test
—Punishable fighting words
—Hostile environment harassment
Facilitating criminal conduct
Civil lawsuits by private citizens
Invasion of privacy
Intentional infliction of emotional distress
Group defamation claims undermine free speech and equality
Constitutionally protected The content neutrality and emergency principles: essential pillars of liberty and equality
CHAPTER 3) From the frying pan to the fire: too flexible or too rigid
One person's hateful, hated speech is another's loving, cherished speech
Endangering minority views and speakers
Targeting minority groups
Campus Social media bans on Current targeting of marginalized views in comparable democracies
France: Bob Dylan criminally charged because of a statement in a magazine interview
Britain: European Parliament candidate arrested during a campaign speech
for quoting Winston Churchill
Netherlands: Member of Parliament convicted because of a question he asked at a political rally
Denmark: Member of Parliament and three other public figures convicted for criticizing aspects of Islam
Sweden: Political party leader convicted for assertion about immigrants' crimes
Austria: A citizen's Facebook post criticizing a public official is deemed Many European countries: Christian and Muslim religious leaders charged for quoting their sacred texts
The slippery slope
CHAPTER 4) Would censoring constitutionally protected Would Inevitable underenforcement
Targeting only blatant expression
Driving some expression underground
Incentivizing more palatable speech
Increasing attention and support
Would ….inter-group hostility?
No correlation with reduced discrimination or violence
The rise of Nazism in Germany despite No inter-country correlation
No intra-country correlation
Would What potential contribution does constitutionally protected Inherently limited contribution
Studies about violence and pornography
Countless contributory factors
Some discriminatory speech does not spur negative psychic reactions
Substantial factual changes since the pioneering legal articles advocating Increasing counterspeech by disparaged people
The cost-benefit analysis so far
CHAPTER 5) What non-censorial measures would reduce the feared harmful impact of constitutionally protected Counterspeech
All of us
Developing thicker and thinner skin
Monitoring discriminatory violence
Improving police interactions with minority communities
Proactive outreach and interaction
More inclusive campuses
Self-restraint and social pressure
CHAPTER 6) What are the potential costs of What potential costs to equality and societal harmony?
Undermining a mainstay of equal rights movements
Deflecting responsibility from people who engage in discriminatory conduct
Disempowering disparaged people
Diverting us from more effective strategies
Undermining constitutional challenges to discriminatory policies
What potential costs to free speech and democracy?
Freedom of speech's intrinsic and instrumental value
Freedom of speech is essential …
…for individuals to form and express their thoughts
…for individuals to convey their emotions
….for democratic self-government
…for defending all other rights
Essential protection of messages that are disfavored or feared to have a general bad tendency
Dangers of subjective criteria in speech regulations
Speech conveying disfavored ideas may well be self-refuting
The appropriate response to disfavored speech is counterspeech
Government may not suppress speech…
…to shield unwilling listeners in public places
…to outlaw certain words
…because it is motivated by hate
…because it is hurtful
…due to feared retaliatory violence
Government may censor speech in accordance with the emergency principle
The comparative risks of freedom and censorship
CHAPTER 7) Do It Yourself challenge: Try to craft an acceptable How should a "?
What personal characteristics should it protect?
Should it protect beliefs?
Should it bar statements about historical events?
If it requires any showing about potential harm…
…what kind of potential harm?
…how likely should it be to materialize?
…how direct and imminent should the connection be between the speech and the potential harm?
…should the potential harm be assessed by a subjective or objective standard?
What mental state should be required?
Should the speech have to target an individual or small group?
Should it extend to speech in private places, and to personal conversations?
Should it take into account…
…the identities of the speaker and the disparaged people?
…any other contextual factors?
Should it provide any affirmative defenses?
Should it exempt speech by public officials or candidates?
Should it be criminal or civil?
What remedies and penalties should it provide?
Should there be any threshold procedural requirements?
How have you done?
APPEN DIX A: Protected personal characteristics and beliefs under various APPENDIX B: Punishable messages under various CHAPTER 8) Conclusion: looking back - and forward