Free Speech Is Not, Repeat Not a Hate Crime – Newsweek

This article first appeared on the Verdict site.

In 1963, George Wallace was elected governor of Alabama on a segregationist platform.

At his gubernatorial inaugural address, he famously said that he supported segregation now, segregation tomorrow, segregation forever.

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He went on to serve two non-consecutive terms (1963-1967, 1983-1987) and two consecutive terms (1971-79). In all, he was governor a little over 16 years in total, becoming the third longest serving governor in post-Constitutional U.S. history.

In 1963, the Harvard-Radcliffe Democratic Club invited Wallace to speak at the University. Harvard students then as now rejected George Wallaces views, but allowed him to speakno protests, no threats of violence.

Some people argued that he should not be invited, while others said, in the words of one member of the Harvard-Radcliffe Democratic Club, We should have a chance to see for ourselves the dancing bear. Those who did not want to attend the speech did not do so, but they did not block the entrance of those who wanted to see for themselves.

Wallace spoke in Memorial Hall, the very building that Harvard, nearly a century earlier, had dedicated to honor its alums who fought and died for the Union during the Civil War. On October 6, 1870, at the laying of the cornerstone, Oliver Wendell Holmes, Sr. composed a hymn for the occasion, which concluded with:

Emblem and legend may fade from the portal,

Keystone may crumble and portal may fall;

They were the builders whose work is immortal,

Crowned with the dome that is over us all.

Memorial Hall was one of the largest halls at Harvard at the time and the place was packed with studentshundreds and hundreds of students. Wallace took questions from the audience. He called on a black student, who spoke in a crisp British accent.

What country are you from, asked Wallace.

Ethiopia, the student said.

Why, you people have slavery there, he claimed.

The student, I recall, shot back, Slavery is punishable by death in Ethiopia, and the audience cheered.

The event ended and we all went home. No one claimed that the Wallaces speech was a microaggression. No one asserted that inviting Wallace created a hostile educational environment, nor that the university was not a safe place. We were all exposed to a different viewpoint, and no one listening risked the fear that they would be so enthralled as to become racists. Later in life, Wallace said he recanted his racist views and asked black Americans to forgive him.

An American Nazi party member salutes during a rally at Valley Forge National Park September 25, 2004 in Valley Forge, Pennsylvania. Ronald Rotunda writes that the American Nazis had the right to march in Skokie, Illinois, for the same reason that Martin Luther King Jr. had the right to march in Selma, Alabama. William Thomas Cain/Getty

In 1977, members of the American Nazi Party, dressed in military garb and wearing swastikas, wanted to march in Skokie, Illinois. The Nazis did not pick that city by accident. It was home to a large number of survivors of the Nazi death camps, and four out of every seven residents were Jewish. Nonetheless, the federal courts invalidated laws that prevented the Nazis march in the case ofCollin & National Socialist Party v. Smith.

The Skokie ordinance prohibiting dissemination of materials that would promote hatred toward persons on basis of their heritage was unconstitutional. Similarly, the ordinance prohibiting members of a political party from assembling while wearing military-style uniforms was unconstitutional.

Finally, an ordinance requiring those seeking to parade or assemble in the village to obtain liability insurance of at least $300,000 and property damage insurance of at least $50,000 could not constitutionally be applied to prohibit the proposed demonstration.

The Nazis had the right to march in Skokie for the same reason that Martin Luther King Jr. had the right to march in Selma, Alabama. The Nazis marched without incident.

That is not the world we live in today. Now, college students often claim that the slogan Make America Great Again is a microaggression and that it is the job of universities to protect them from that attack.

North Carolina State University is one of many universities that advises faculty to avoid expressions such as America is the land of opportunity because that is yet another microaggression. It becomes harder to attack students for silliness when the grownups, the college administration, support their eccentricities by policing everyday language.

The aggression and bullying behavior of those who oppose microaggressions goes behind the ivy halls of higher education. Portland, Oregon, for the last decade has hosted an annual Rose Festival and 82nd Avenue of the Roses Parade and Carnival. It bills the parade as a family-friendly parade meant to attract crowds to its diverse neighborhood. Apparently, it should not be too diverse.

This year, the city cancelled the parade because the parades 67th spot would be occupied by the Multnomah County Republican Party. Yes, the Republican Party! That outraged two self-described anti-fascist groups who threatened physical violence.

One anonymous email made clear that the threat was not to boycott; it was not to protest peacefully; it was to cause violence. This email recalled fondly the 2016 violent riots that Portland hosted after the November election. The Avenue of Roses cancelled the event, following threats of violence during the Parade by multiple groups planning to disrupt the event.

On April 26, Tucker Carlson on Fox News interviewed Professor Aaron Hanlon of Colby College who said that Ann Coulter, who was asked to speak at UC Berkeley, does not meet the standards for speakers that should be invited to campus.

That argument, however, only says that Professor Hanlon would not invite Coulter. That was not the issue. Legitimate university-recognized student groups at Berkeley did invite Coulter. The issue was whether other students or outsiders should be able to threaten violence to prevent her from speaking to those who wanted to hear her.

Carlson asked the professor if he would support expulsion of those students who violently prevent other students from listening to Ann Coulter. Professor Hanlon claimed he was very speech-permissive, but he refused to answer that simple question.

The American Civil Liberties Union, in contrast, supported the free speech rights of the American Nazi Party back in 1977 and bemoaned Berkeleys cancellation of Ann Coulters speech now. It tweeted, The hecklers veto of Coulters Berkeley speech is a loss for the 1st Amendment. We must protect speech on campus, even when hateful.

Every generation must relearn the lessons of free speech. It is no accident that Eastern European Communists suppressed speech and art as well as politics and religion. And when the people overturned the Communist dictators of Eastern Europe, they regarded freedom of expression as a premier right. The Czech revolution began in the theatres, and that countrys first freely elected president since World War II was a playwright.

Salmon Rushdie told us in his Herbert Read Memorial Lecture, of February 6, 1990, Peoples spiritual needs, more than their material needs, have driven the commissars from power.

Young people today may not know of Salman Rushdie, author of The Satanic Verses. After its 1989 publication, the spiritual head of Iran announced to the world that Mr. Rushdie must die because his book was, in his view, offensive to Muslim beliefs. It was hate speech.

Mr. Rushdie, a British subject, went into hiding, protected by the British government that he often criticized. Iran has never lifted its death sentence on Rushdie. That is how they react to microaggressions.

In this country, there are those who argue that microaggressions should be crimes, like hate crimes. These people often forget that hate crimes are not mere words, but crimes of action (e.g., assault or vandalism) accompanied by words. For example, vandalism of a synagogue with anti-Semitic words is a hate crime. Mouthing an anti-Semitic epithet, while crude, tasteless and offensive, is not a crime if divorced from action.

There are Westerners who defended Irans death fatwah on Rushdie. He had it coming, they said; he knew he was insulting Muslims. Writers like John le Carr wrote in The Guardian, that no one has a God-given right to insult a great religion and be published with impunity. Rushdie recalled

On TV shows, studio audiences were asked for a show of hands on the question of whether I should live or die. [A] point of view grew up [that] held that I knew exactly what I was doing. I must have known what would happen . . .

I find myself wanting to ask questions: when Osip Mandelstam [the Russian poet] wrote his poem against Stalin, did he know what he was doing and so deserve his death? When the students filled Tiananmen Square to ask for freedom, were they not also, and knowingly, asking for the murderous repression that resulted?

Even if I were to concede (and I do not concede it) that what I did in The Satanic Verses was the literary equivalent of flaunting oneself shamelessly before the eyes of aroused men, is that really a justification for being, so to speak, gang-banged? Is any provocation a justification for rape?

Over a quarter of a century after the Salman Rushdie death sentence, he is still in hiding, his Norwegian publisher was shot, his Japanese editor was murdered and his Italian translator stabbed.

Meanwhile, Western European countries are now prosecuting their citizens for insulting Islam.

Ronald D. Rotunda is the Doy & Dee Henley chair and distinguished professor of jurisprudence at Chapman University, the Dale E. Fowler School of Law. He is co-author of the six-volume Treatise on Constitutional Law: Substance and Procedure and Legal Ethics: The Lawyer's Deskbook on Professional Responsibility.

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Free Speech Is Not, Repeat Not a Hate Crime - Newsweek