Bill Owens: Free Speech

Oct 26, 2017

There have been a number of controversies regarding free speech on college campuses, including those at Middlebury and UC Berkeley.  The Wall Street Journal and others have written numerous stories and have opined about the intolerance of the left, conveniently ignoring the same intolerance on the right. 

Freedom of speech is of course enshrined in the First Amendment to the Constitution to which the courts have given a broad interpretation as to what constitutes free speech, and who is entitled to exercise it and where. 

We have all watched talk shows, including Fox News and MSNBC, where speakers are shouted down, cut-off, or are simply not invited to speak.  The latter is certainly a very effective way of denying “free speech” to someone with whom you disagree.

The old adage of everyone is entitled to their opinion, but not to their own facts is a cliché certainly, but it does raise important issues.  In a conversation with a number of my friends recently (yes, I do have them) – several took the position that the antifa was far worse than the alt right.  I suggested in retort that neither are particularly worthy of emulation, and that both use fake information and half-truths to drive home their opinions. We all must return to recognizing facts that we dislike as opposed to dismissing them as fake news or otherwise somehow untrue.

John Villasenor conducted a study of college students’ views of the 1st Amendment, and found that “a surprisingly large faction of students believe it is acceptable to act – including resorting to violence – to shut down expression they consider offensive.”  Mr. Villasenor’s findings came from a survey of 1,500 current undergraduate students from 4-year colleges and universities with responses from 49 states and the District of Columbia. A surprising forty-four percent (44%) believe that the 1st Amendment does not protect hate speech, while thirty-nine percent (39%) believed it does, and sixteen percent (16%) didn’t know; by gender virtually tied.  There was also strong support for disruption of events by those who are registered Democrats finding it acceptable at sixty-two percent (62%), while Republicans found it unacceptable by sixty-one percent (61%).  The use of violence was rejected by large margins, by all political groups, and all political groups believed that the sponsoring group was legally required to ensure that the event includes a countervailing point. Mr. Villasenor’s findings can be located at the Brookings Institute website as of September 18, 2017.

Lawyers, of course, (of which I am one) spend their lives parsing facts, but that is their role in the courts. The media has in many ways adopted those techniques, as have many politicians which are neither of their roles. 

We all know that Supreme Court Justice Holmes in a famous quotation stated that free speech does not entitle one to yell out “fire” in a movie theater if it is false and dangerous –where there is no fire.  I am a strong proponent of free speech, but equally opposed to those who manipulate it in the public discourse.

There is no way to legislate the responsible use of free speech, and that would be dangerous in any event.  But it is important for schools at every level to require students to establish the basic facts that support whatever argument they are making.  This training creates a disciplined mind as these students reach adulthood, so that they would, in fact, (excuse the pun) assert things only which they could prove.  After establishing the fact, then they would be free to make their argument in whatever way they deemed appropriate applying whatever philosophy they subscribe to.  Parents also need to focus on this behavior and cease listening to only shows that express their point of view.

From a personal prospective, I dislike flag burning, kneeling during the anthem, flying confederate flags, and the KKK, but nonetheless if they pass the Holmes Test then I will support the right to express those opinions.

We cannot continue down the road of allowing factual misstatements to go undisputed, nor is it healthy to suppress free speech on campuses. 

Mr. Owens is a former member of Congress representing the New York 21st, a partner in Stafford Owens in Plattsburgh, NY and a Senior Advisor to Dentons to Washington, DC.

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