It’s often incorrectly said that the First Amendment to the United States Constitution does not give you the freedom to yell “fire” in a crowded theater. But what if there is a fire?
The correct statement is that the Amendment does not give you the freedom to “falsely yell fire in a crowded theater”. A colloquial illustration that free speech, like all individual rights, are not unlimited.
What are the limits on free speech?
On most college campuses today, too many students believe the limit is whatever words make them “uncomfortable” — the definition of which seemingly changes daily. Even worse, the alleged adults (professors) who are supposed to be educating the students, and administrators running the schools, enable that mental illness to fester.
The need to be protected from ideas that offend, or make you uncomfortable, is a symptom of mental illness, as Professors Greg Lukianoff and Jonathan Haidt demonstrate in their groundbreaking bestseller, The Coddling of the American Mind. The mental patients have taken over the asylum.
Aside from mental illness, a belief that people must be protected from mere words strikes at the very foundation of a free society. That it dominates attitudes in academia is particularly disturbing because “The classroom is peculiarly the marketplace of ideas”. That’s how the Supreme Court has defined freedom of speech in college classrooms. “The best test of truth is the power of the thought to get itself accepted in the competition of the market.”
Last March the Supreme Court decided a case indirectly related to free speech on campus. Two evangelical Christian students were prevented from proselytizing in the public area on the campus of Georgia Gwinnett College because — according to the college speech code — talking about religion in public “disturbs the peace and/or comfort of person(s)”, and amounted to “fighting words”.
When the students sued for violation of their First Amendment rights, the school quickly rescinded the speech code in a attempt to prevent the lawsuit from going forward. The Supreme Court ruled the suit could go forward regardless. Though the case as it came to the Court doesn’t address the First Amendment claim, and is limited to a procedural requirement for maintaining lawsuits, freedom of speech is the basis of the lawsuit.
What’s significant is how quickly the college abandoned their speech code when faced with a lawsuit alleging it violated the First Amendment. They shot themselves in the foot. The Supreme Court said the suit can go forward, and the law may permit the fact, that the college abandoned its speech code in the face of the suit, to be admitted as evidence they attempted to obstruct vindication of the student’s rights.
Unfortunately, the notion that ‘offensive’ speech (as interpreted by adult toddlers) should not be allowed is spreading like a noxious fungus from the moldy halls of academia. For example, social media has its version of arbitrary content-based speech codes, prompting those who respect the Constitution to fight back against such discrimination.
In response presidential candidate (and Florida resident) Donald Trump being blocked from Twitter, the Florida legislature passed, and the Governor signed into law, a ban on social media arbitrarily ‘de-platforming’ political candidates. Platforms can be fined if they do so.
The new law requires the platforms to publish standards of what content is, or is not, permitted — and to show they enforce those standards uniformly rather than selectively as they did with Trump. Social media companies are challenging the law on the ground that they claim it infringes their First Amendment rights.
Think about that hypocrisy. The owners of social media platforms are whining that suing them for selectively limiting citizens’ rights of free speech somehow limits their own First Amendment rights! Hopefully Supreme Court precedent will thwart the owners’ comedic ascent into Artistophanes’ nephelococcygia.
In 1943, the United States Supreme Court said that forcing a person to believe something, or to say words they don’t agree with, violates our core values. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
You can’t be deprived of the right to disagree with, or voice disapproval of, the social justice cause du jour. If those causes are justifiable they should welcome “competition in the market” of ideas. That they don’t proves their intellectual bankruptcy.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.