- - Wednesday, October 25, 2017

From Charlottesville to California, violence in the streets and protests on college campuses are forcing us to consider what the First Amendment to the U.S. Constitution really means — and whether we still believe in it.

First, in Charlottesville, the despicable beliefs of bigoted Nazi groups and their white supremacist ilk were on display for all the nation to see. Their beliefs wallow in the deepest mire of collectivist depravity, and we should be repulsed by what they represent. President Donald Trump’s dithering aside, it’s well within our First Amendment rights to call a spade a spade: Bigotry is wrong.

But it’s also within the marchers’ rights to be heard, especially on a public college campus, no matter how abhorrent the content of their speech may be. Both the White Nationalists and the counter-protesters had permits to demonstrate in Charlottesville after the White Nationalists marched through the University of Virginia’s campus the night before.

The violence that ensued and lives that were lost are tragic and heartbreaking. Words cannot contain enough sympathy to cover the pain of the families and friends who lost their loved ones. But words are the only alternative to violence.

The fact is both sides had a right to demonstrate and protest — and groups like the American Civil Liberties Union agree. If we cannot engage with people who disagree with us, violence is the predictable result. The protesters who turned to violence violated the free speech provisions of the constitution and diminished any chance for dialogue — slim as it was, given the views of the White Nationalists. We must make violence beyond consideration when we hear ideas or witness expressions with which we disagree, and fight back with better ideas.

Virginia lawmakers began to address this retreat from dialogue on public college campuses earlier this year. The Virginia House of Delegates voted in favor of a resolution to protect free speech on campus, based on a proposal from Stanley Kurtz of the Ethics and Public Policy Center and researchers at the Goldwater Institute.

Similar to the Goldwater Institute proposal, Virginia’s resolution calls on the state university system’s board of governors to adopt a policy in favor of free speech on campus. The resolution also says, “It is not proper for a public institution of higher education to shield individuals from speech that is protected by the First Amendment, including ideas and opinions that such individuals find unwelcome, disagreeable, or deeply offensive.”

After House passage, the resolution’s sponsor, Del. Dave LaRock, said he plans to introduce more legislation on the issue next year. Lawmakers in North Carolina have already passed a comprehensive campus free speech law modeled on the Goldwater proposal. A broader commitment to free expression is even more urgently needed in the wake of Charlottesville.

Will Virginia lawmakers follow their Tar Heel colleagues and hold to the First Amendment — including its protections for ideas with which we disagree? The alternative is chilling: Will delegates say that some speech is more free than others in the Commonwealth?

The Goldwater Institute’s proposal is careful to side with free speech for all. In fact, the proposal says that anyone lawfully present on a public college campus is allowed to protest or demonstrate there. But those protesters — or counter-protesters — cannot block someone else’s right to free expression. That draws a clear line between civil debate and violence, encouraging the former and making clear that the latter will be unflinchingly rejected.

Which brings us to California. At the University of California at Berkeley, headspring of the campus Free Speech Movement, violence has broken out at the very idea that student groups would invite a controversial speaker to give a lecture. Ex-Chancellor Nicholas Dirks responded to the hecklers by ratifying their veto, disinviting rabble-rousers Ann Coulter and Milo Yiannopoulos, and calling into question the school’s seminal commitment to free expression.

California lawmakers noticed. Assemblywoman Melissa Melendez proposed an amendment to the state constitution based on Goldwater’s model.

As Ms. Melendez’s amendment worked its way through the state legislature, University of California officials announced an about-face: Student groups invited Ms. Coulter, Mr. Yiannopoulos, commentator Ben Shapiro, and former White House adviser Stephen Bannon to speak on campus — and the university committed to allowing the events to occur and providing security to stem violence.

Berkeley’s new Chancellor, Carol Christ, announced a steadfast commitment to free expression: “The United States has the strongest free speech protections of any liberal democracy; the First Amendment protects even speech that most of us would find hateful, abhorrent and odious, and the courts have consistently upheld these protections.”

This is a powerful stance to take. Universities in other states have cancelled alt-right speakers rather deal with the security concerns they create, but colleges have faced such risks before. In the seminal 1974 Woodward Report, commissioned by Yale University to respond to shout-downs and disinvitations at the school, the committee confessed that “we take a chance, as the First Amendment takes a chance, when we commit ourselves to the idea that the results of free expression are to the general benefit in the long run, however unpleasant they may appear at the time . If expression may be prevented, censored or punished, because of its content or because of the motives attributed to those who promote it, then it is no longer free.”

Freedom can be risky. But we must take that chance because committing to freedom is the only way to protect individual liberty and foster a civil society.

Jim Manley is Senior Attorney at the Goldwater Institute.


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