Academic Freedom, Freedom of Speech, and the Demise of Civility

A professor has been suspended after claiming that anyone witnessing white people in mortal danger should “let them fucking die.”

Daniel Payne, The College Fix (June 27, 2017)

Predictably, the suspension of the professor — one Johnny Eric Williams of Trinity College in Hartford, Connecticut — and a similar case at Essex County (New Jersey) College caused the usual (left-wing) suspects to defend the offenders and claim that their “academic freedom” and “freedom of speech” were being violated. (Boo hoo.) I will be unsurprised if the ACLU doesn’t weigh in on the side of hate.

This is what happens when the law becomes an abstraction, separate and apart from social norms. There is no better example of the degradation of the law, and of public discourse, than the case of Snyder v. Phelps, which I addressed in “Rethinking the Constitution: ‘Freedom of Speech and of the Press’“. What follows is based on that post.

Contrary to the current state of constitutional jurisprudence, freedom of speech and freedom of the press — and, by implication, academic freedom — do not comprise an absolute license to “express” almost anything, regardless of the effects on the social fabric.

One example of misguided absolutism is found in Snyder v. Phelps, a case recently and wrongly decided by the U.S. Supreme Court. This is from “The Burkean Justice” (The Weekly Standard, July 18, 2011):

When the Supreme Court convened for oral argument in Snyder v. Phelps, judicial formalities only thinly veiled the intense bitterness smoldering among the parties and their supporters. At one table sat counsel for Albert Snyder, father of the late Marine Lance Corporal Matthew Snyder, who was killed in al Anbar Province, Iraq. At the other sat Margie Phelps, counsel for (and daughter of) Fred Phelps, whose notorious Westboro Baptist Church descended upon Snyder’s Maryland funeral, waving signs bearing such startlingly offensive slogans as “Thank God for IEDs,” “God Hates Fags,” and “Thank God for Dead Soldiers.” A federal jury had awarded Snyder nearly $11 million for the “severe depression” and “exacerbated preexisting health conditions” that Phelps’s protest had caused him.

In the Supreme Court, Phelps argued that the jury’s verdict could not stand because the First Amendment protected Westboro’s right to stage their protest outside the funeral. As the Court heard the case on a gray October morning, Westboro protesters marched outside the courthouse, informing onlookers that God still “Hates Fags” and advising them to “Pray for More Dead Soldiers.”

Amidst that chaos, the Court found not division, but broad agreement. On March 2, 2011, it held that Westboro’s slurs were protected by the First Amendment, and that Snyder would receive no compensation, let alone punitive damages, for the emotional injuries that he had suffered. Chief Justice John Roberts wrote the Court’s opinion, speaking for all of his brethren, conservatives and liberals alike—except one.

Justice Samuel Alito rejected the Court’s analysis and wrote a stirring lone dissent. “The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.” Repeatedly characterizing Westboro’s protest as not merely speech but “verbal assaults” that “brutally attacked” the fallen Snyder and left the father with “wounds that are truly severe and incapable of healing themselves,” Justice Alito concluded that the First Amendment’s text and precedents did not bar Snyder’s lawsuit. “In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims. .  .  . I therefore respectfully dissent.”

There is more:

Snyder v. Phelps would not be the last time that Alito stood nearly alone in a contentious free speech case this term. Just weeks ago, as the Court issued its final decisions of the term, Alito rejected the Court’s broad argument that California could not ban the distribution of violent video games without parental consent. Although he shared the Court’s bottom-line conclusion that the particular statute at issue was unconstitutional, he criticized the majority’s analysis in Brown v. Entertainment Merchants Association as failing to give states and local communities latitude to promote parental control over children’s video-game habits. The states, he urged, should not be foreclosed from passing better-crafted statutes achieving that legitimate end.

Moreover, Alito’s opinions in those cases followed a solo dissent late in the previous term, in United States v. Stevens, where eight of the nine justices struck down a federal law barring the distribution of disturbing “crush videos” in which, for example, a woman stabs a kitten through the eye with her high heel, all for the gratification of anonymous home audiences.

The source of Alito’s positions:

[T]hose speculating as to the roots of Alito’s jurisprudence need look no further than his own words—in public documents, at his confirmation hearing, and elsewhere. Justice Alito is uniquely attuned to the space that the Constitution preserves for local communities to defend the vulnerable and to protect traditional values. In these three new opinions, more than any others, he has emerged as the Court’s Burkean justice….

A review of Alito’s Snyder, Brown, and Stevens opinions quickly suggests the common theme: Alito, more than any of his colleagues, would not allow broad characterizations of the freedom of speech effectively to immunize unlawful actions. He sharply criticized the Court for making generalized pronouncements on the First Amendment’s reach, when the Court’s reiterations of theory glossed over the difficult factual questions that had given rise to regulation in the first place—whether in grouping brutal verbal attacks with protected political speech; or in equating interactive Duke Nukem games with the text of Grimm’s Fairy Tales; or in extending constitutional protection to the video of women illegally crushing animals. And Alito was particularly sensitive to the Court’s refusal to grant at least a modicum of deference to the local communities and state officials who were attempting to protect their populations against actions that they found so injurious as to require state intervention.

A general and compelling case against the current reign of absolutism is made by David Lowenthal in No Liberty for License: The Forgotten Logic of the First Amendment. My copy is now in someone else’s hands, so I must rely on Edward J. Erler’s review of the book:


Liberty is lost when the law allows “freedom of speech, and of the press” to undermine the social norms that enable liberty. Liberty is not an abstraction, it is it is the scope of action that is allowed by socially agreed upon rights. It is that restrained scope of action which enables people to coexist willingly, peacefully, and cooperatively for their mutual benefit. Such coexistence depends greatly on mutual trust, respect, and forbearance. Liberty is therefore necessarily degraded when courts sunder social restraints in the name of liberty.


Other related posts:
On Liberty
Line-Drawing and Liberty
The Meaning of Liberty
Positive Liberty vs. Liberty
Facets of Liberty
Burkean Libertarianism
What Is Libertarianism?
True Libertarianism, One More Time
Human Nature, Liberty, and Rationalism
Liberty, Negative Rights, and Bleeding Hearts
Why Conservatism Works
Liberty and Society
Liberty as a Social Construct: Moral Relativism?
Defending Liberty against (Pseudo) Libertarians
Defining Liberty
The Futile Search for “Natural Rights”
The Pseudo-Libertarian Temperament
Parsing Political Philosophy (II)
Getting Liberty Wrong
Libertarianism and the State
“Liberalism” and Personal Responsibility
My View of Libertarianism
More About Social Norms and Liberty
The War on Conservatism
Social Justice vs. Liberty
Economically Liberal, Socially Conservative
The Harm Principle Revisited: Mill Conflates Society and State
Liberty and Social Norms Re-examined
Natural Law, Natural Rights, and the Real World
Rescuing Conservatism
If Men Were Angels
The Left and Evergreen State: Reaping What Was Sown

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