Last week Miss Constitution, in “Go Kill Yourselves”, reviewed what is Constitutionally protected speech under the 1st Amendment Free Speech Clause of the United States Constitution. The word “protected” means that the speech cannot be censored by a government actor or a proxy for that actor. As if on cue, a commencement address at CUNY Law School in New York City, provided the exact right example of the whole doctrine of Constitutionally protected speech.
Having been selected by her classmates, Fatima Mousa Mohammed, originally from Yemen, took to the podium of the law school, flanked on stage by the President of the school, its Board of Trustees, all the law faculty in their full regalia of academic finery and other important persons. In the audience are the long-suffering parents, spouses, siblings, children, friends, fiances, relatives, alumna, and perhaps potential employers of these graduates assuming they can pass the bar exam (you will recall how difficult a task this was for John F. Kennedy, Jr.).
So, surely there would be a speech of humility, of gratefulness, of acknowledgment of the sacrifice that family and friends make, both emotionally and financially, just to be present at this momentous achievement of having survived law school – somewhat intact. Surely there would be a funny story about a faculty member or administrator; about a classmate, or about oneself. Surely there would be words of encouragement about the future, about helping one’s fellow man, about the challenges in the world that can be addressed by knowledge of the American Rule of Law.
Alas and sadly there was no such speech. Out of the deepest place in her young being, came such a litany of hate and resentment against Israel, Jews, America, white people, police, and all the civic institutions that make up America’s civil order, that one, in listening to it, feared that the poison in her system might harden and turn her instantly into a pillar of salt. Positive Law, the study of which was the purpose of the gathering, rated this comment: “Law is a manifestation of white supremacy that continues to oppress and suppress people in this nation and around the world.” Ummmm. Capitalism took its usual beating although there was no mention of the quality of the school’s facilities, the quality of the food she ate to nourish her brain, the clean water she drank, or any kindnesses she may have experienced in a country that took her and her family in that they might find new life in its tolerant bosom.
This brings us to our Civics Lesson. Though hateful, is this speech Constitutionally protected from government censorship under the 1st Amendment of the United States Constitution? If yes, what is the responsibility of the President and Board of Trustees of CUNY Law School in reaction to it?
As discussed last week, we go to our checklist for the answer.
- Was Miss Mohammed’s address “speech”, either express or symbolic, but not obscene? Yes
- Was Miss Mohammed’s express speech about public policy? Yes
- Was Miss Mohammed in a proper forum to deliver her speech? Yes
- Did Miss Mohammed deliver her speech in the proper time, place, and manner? Yes
If the above elements are met, no government actor or entity that receives substantial public funding, or any entity that serves as a proxy for a government actor (Twitter, for example), can censor her speech – meaning prevent people from hearing it or knowing about it or canceling accounts discussing it.
But it was hateful. Why is hateful speech allowed and obscene speech or rude speech not allowed? Hateful speech is allowed if the hateful speech is about public policy. It is thought by the Supreme Court and certainly by the Founders that ALL ideas regarding public policy ought to be on the table for the American people to weigh. This is called the “marketplace of ideas.” Miss Mohammed thinks that American foreign policy should be anti-Israel and pro-Palestinian. She thinks Capitalism should be abandoned and Marxism take its place. She thinks white people are Fascists. Okay. She has the Constitutional right to voice her opinion and others have the Constitutional right to disagree.
What is not allowed is censorship of her opinion by any government actor, their proxies, or any entity that takes a substantial amount of public funds (schools, for example). There is no disinformation regarding public policy – just different opinions. Think carefully about what this means. There can be no “disinformation boards” established by federal agencies that feel strongly about their version of the “truth.” The CDC cannot censor physicians who disagree with lockdowns. HHS cannot censor commentators who say the border is open. The FBI cannot censor parents by calling them “domestic terrorists.” No federal agency can collude with private entities to cancel ideas on public policy.
The key to understanding this unique protection of hate speech is to know that it cannot be directed at a person. Saying white people are all fascists is different than accusing an individual white person of being a fascist. That is rude. Being rude violates Unwritten Law (courtesy) and is not protected by the US Constitution. Obscenities are also not protected. Obscenities are not even speech. Throwing the f-bomb around just reveals the nature of the person doing it – it is not a statement on public policy.
Miss Constitution, this is just too confusing. Are you saying that it is okay to make a hateful speech or carry a hateful sign regarding public policy as long as one is not personal about it and therefore rude? That is correct. In addition, government actors, their proxies, or entities that receive substantial public funds must protect the speaker and must not comment officially on the content of the speech.
Back to our CUNY law school graduation and the hateful speech on public policy delivered by Miss Mohammed. Any statement by the Board of Trustees must support her right to speak and may say only, “We support our commencement speaker’s right to her opinion on public policy and remind any offended that they also have the right – indeed the duty – to counter her speech with their own.”
The censorship Americans have been experiencing in having their social media accounts frozen, or having their opinions on public policy erased, or having government officials try and say that differences of opinion on public policy are “disinformation” is unconstitutional. If social media companies are being guided by government actors then they are proxies for government and may not censor public policy speech. All in government take an Oath of Office to preserve, protect, and defend the 1st Amendment of the United States Constitution. You would think the law school would know this.
As for Miss Mohammed – Miss Constitution wishes her only the best and hopes she one day will be grateful for a nation that protected her, embraced her, and stood by her right to speak openly about the direction of the country. Two female journalists in Iran have been arrested and face execution for just this precious Constitutional right.