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The Mob Vetoes Ann Coulter

Ann Coulter will not speak at Berkeley tonight because the threat of mob violence led campus authorities to claim they could not protect her, resulting in a back-and-forth in which the speech was canceled, un-canceled, and finally canceled for good when the group sponsoring the event backed out. Similar threats led New York University [1] (NYU) to cancel Milo Yiannopoulos’ appearance in February. These are shameful actions by two universities that purport to value free speech—one of them a public institution that is constitutionally obligated to.

Previous violence at Berkeley [2] directed against Yiannopoulos, as well as the current threats, originated with a coalition of so-called antifas: anti-fascists, persons who believe that in Trump’s America violence to silence speech they do not agree with is justified. They probably are unaware their tactics were once used to silence civil-rights marchers, anti-war protesters, abortion-rights advocates, and the women’s movement. Because the law that now shames Berkeley and NYU comes from earlier efforts to protect those groups’ right to speak.

The idea that a university cannot ensure a speaker’s safety, or that the speaker’s presence may provoke violent protests, or that the institution just doesn’t have to go to the trouble of protecting a controversial speaker, has become the go-to justification for persons on the left restricting speech from the right. Coulter and Yiannopoulos were singled out specifically for the content of their speech, which is indeed offensive to students and faculty who see danger in unpopular ideas. The universities’ actions were not content-neutral, in other words, the base requirement when a government entity restricts speech.

But what those offended people think is irrelevant, because the Constitution is clear even when their minds are muddied. While public institutions do have an obligation to public safety, that obligation must be balanced against the public’s greater right to engage with free speech. The answer is not to ban speech outright simply to maintain order. But don’t believe me; it’s the law.

landmark case [3] from 2015 involving a group called the Bible Believers [4], who used crude language (“Turn or Burn”) at an LGBT event, provides the clearest guidance:

When a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals. Nor can an officer sit idly on the sidelines—watching as the crowd imposes, through violence, a tyrannical majoritarian rule—only later to claim that the speaker’s removal was necessary for his or her own protection. Uncontrolled official suppression of the privilege [of free speech] cannot be made a substitute for the duty to maintain order in connection with the exercise of that right.

The idea that the government can shut down speech requiring physical protection has failed court tests in cases involving speech as diverse as Occupy [5] protests and a Christian group bringing a pig’s head [6] to an Islamic arts festival. Both sides in the abortion debate have slapped down the need-to-maintain-public-order argument outside [7] clinics in defense of their right to speak. Any of those situations is at least as volatile as whatever Ann Coulter has been saying publicly since her first book came out in 1998, or Milo Yiannopoulos’ junior-high-school-level homophobic slurs.

The courts have also long held that mobs should not be allowed to exercise the so-called Heckler’s Veto—the practice of shouting down speakers, where whoever can literally “speak” the loudest gets to choose what is said. The natural end of such thinking is mob rule, where Speaker A gets a bigger gang together to shout down the gang Speaker B controls. Or, in Coulter and Yiannopoulos cases, simply threatens to do so.

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Allowing a Heckler’s Veto to keep unpopular speakers from expressing their views, as Berkeley and NYU have basically done, does damage far beyond two conservative speakers in 2017. Allowing the veto not only stifles a specific idea, but threatens to chill public discourse generally by discouraging others with controversial ideas from sharing them. Who wants to stand up only to be shouted down by a mob while the administration and law enforcement stand aside?

The Supreme Court has concluded [8] that the government’s responsibility in such circumstances is to control those who threaten or act out disruption, rather than sacrifice [9] the speaker’s free-speech rights. Berkeley and NYU chose a different route.

The problems of having Ann Coulter speak on a campus are outweighed by the larger obligation to protect free speech. Getting rid of the speaker may be expedient, but it is also unconstitutional. The ACLU [10] knows that, because it took Coulter’s side, as did Elizabeth Warren [11] and Bernie Sanders [12]. There are plenty of lawyers working for the universities who know it too, but figure on a liberal campus in front of a sympathetic media they can get away with ignoring it.

Supreme Court Justice Louis Brandeis held [13] that people must be able to discuss and criticize unpopular ideas, that free speech is not an abstract virtue but a key element at the heart of a democratic society. Even the fact that speech is likely to result in “violence or in destruction of property is not enough to justify its suppression.” Brandeis concluded “the deterrents to be applied to prevent violence and disruption are education and punishment for violations of the law, not abridgment of free speech.”

Free speech is not an ends, it is a means, in a democracy. Shame on two of America’s prominent universities for treading on that mighty concept. Free speech is messy, and it is our essential defense against fascism, whether from the left or the right.

Peter Van Buren is the author of Hooper’s War: A Novel of WWII Japan [14], available now. Follow him @WeMeantWell

59 Comments (Open | Close)

59 Comments To "The Mob Vetoes Ann Coulter"

#1 Comment By joeyjunger On May 1, 2017 @ 3:45 am

Conservatives talking about the constitution, clutching it to their chests this late in the game, remind me of the Jewish veterans of the Great War who went to the gas chambers clutching their medals they’d earned in combat. The constitution is a scalp worn on the pelt of the clerisy in our judicial dictatorship. You can say, “Give me that back!” as loud as you want to Kagan, Ginsberg, etc. (or even to a 9th circuit judge) but it won’t work (even if you’re president, especially if you’re a republican president). The kids in the street with the makeshift armor defending themselves against the leftist Huns have it right. Andrew Breitbart had it right. There is only one thing that can be said to the Left if you are on the Right now: “F you! War!”

#2 Comment By EliteCommInc. On May 1, 2017 @ 11:55 am

“Right now: ‘ . . . you! War!” ”

And it is one that is being forced. When don’t want her loberals I change the channel. I don’t go to their speeches.

I don’t over turn cars, throw rocks and threaten mayhem on campus and then demand a safe space. They do require pushback. There seems to be little choice, unless one is pacifist.

I am not.

#3 Comment By MM On May 1, 2017 @ 1:08 pm

“Not surprising that constitutional lawyers are all about punching loopholes in the Constitution.”

Here, here. If you really want to get down to brass tacks, I’ll flip the shoe onto the other foot: It’s perfectly legal for a private college, say Liberty University, to immediately expel any students who espouse contrary political/religious beliefs. And it’s perfectly legal for a private company, say Chick-fil-A, to only hire employees that agree with the owner’s political/religious beliefs, and fire those who don’t, except perhaps in DC and MS where political belief is a protected class.

I personally wouldn’t endorse such activities nor patronize such organizations, but at the same time none of my progressive friends would be defending such organizations’ right to perform ideological housecleaning, as we’ve seen at Cal, now the former home of the free speech movement, Brendan Eich at Mozilla, and every little Mom & Pop bakery and pizzeria around the country that’s come in someone’s ideological cross-hairs over the past 8 years.

I’ll keep looking for consistency out there, but I won’t be holding my breath…

#4 Comment By philadelphialawyer On May 1, 2017 @ 10:01 pm

The State action doctrine is now a “loophole” created by the “demonic breed” of constitutional lawyers? You learn something new every day!

I for one, would like to see free speech protections extended into private settings, including private colleges like NYU (and Liberty University), as well as workplaces and malls.

But that isn’t the law. And, as far as I can tell, never has been. And that was my point.

#5 Comment By Brendan Sexton On May 1, 2017 @ 10:24 pm

As a lefty, and long a deep believer in free speech, I say what was done to Coulter was wrong, worse than wrong. Terrible. And, I say with equal conviction, she is a creep. A terrible creep.
but of course, she must be allowed to preach her creepy message.

#6 Comment By EliteCommInc. On May 3, 2017 @ 10:10 am

“But that isn’t the law. And, as far as I can tell, never has been. And that was my point.”

But that doesn’t change the reality that private institutions, especially those of faith have been pressed to adopt ideas and practices that they by their beliefs find objectionable.

And the press hinged on the willingness to accept public funds. Now Miss Coulter may be as weak as as the current white house occupant as she too is shifting her position on immigration to pander to liberals and others. She is not someone i would go to and expect sound council about invading Iraq, Afghanistan or relations outside of marriage or the nature of scripture anymore than I would any Pres. in my lifetime.

But she is entitled to either speak or be compensated for the presence being cancelled.

#7 Comment By MM On May 3, 2017 @ 1:08 pm

“I for one, would like to see free speech protections extended into private settings… as well as workplaces and malls.”

Taking your handle at face value, I presume you’d have no problem if a clerk working at a private law firm loudly and proudly proclaimed it to be a “bad place to work” and set out to convince all clients to avoid the place? Free speech laws would therefore protect his or her right to sink the company’s reputation, all the while still drawing a paycheck?

#8 Comment By EliteCommInc. On May 3, 2017 @ 4:12 pm

“Taking your handle at face value, I presume you’d have no problem if a clerk working at a private law firm loudly and proudly proclaimed it to be a “bad place to work” and set out to convince all clients to avoid the place?”

You can do better than that.

Christians meeting in prayer at the ALCU.

Employees of the Clinton Foundation voting against homosexual marriage.

Members of La Raza denying declaring that they should not be expected to serve illegal immigrants.

#9 Comment By MM On May 3, 2017 @ 6:42 pm

“You can do better than that.”

How about a real-life example:

GrubHub CEO Matt Maloney declared President Trump and his supporters “nationalist, anti-immigrant, and hateful,” and told any employees who voted for Trump and disagreed with his statements to resign immediately, in the interests of “tolerance and inclusion”.

My progressive friends dismissed this as simply a private company making a business decision, as opposed to say a corporate CEO using the fear of political retaliation to squelch dissent, which is how the story would’ve been reported in the New York Times had the election results and partisan affiliations been reversed.

I miss the days when the Left had a problem with corporations getting involved in politics…