Mimesis Law
2 June 2020

Protecting the Free Speech of Milo Yiannopoulos & NJ Weedman

May 31, 2016 (Mimesis Law) — Milo Yiannopoulos, a Breitbart reporter, self-proclaimed “Dangerous Faggot” and internet supervillian, is continuing to cause a stir on his campus tour, this time at DePaul University:

DePaul University Black Lives Matter protesters shut down a Milo Yiannopoulos event on Tuesday night. They justified their illiberal actions on grounds that Yiannopoulos’s speech spreads hate and violence—which, incidentally, is true, given that the students retaliated by literally attacking him.

In video footage of the event, a female protester can clearly be seen striking Yiannopoulos in the face. This took place during the Q and A, which was interrupted by the female student and another activist, student Edward Ward. They were joined by ten other irate students. Yiannopoulos’s supporters tried to stop them, and police and security were called.

But neither the police nor campus security did anything to stop the activists. This was ironic, because DePaul had forced the College Republicans to pay several hundred extra dollars for security for the event, according to The College Fix.

Not too long ago, free speech was a liberal idea. The so-called “Liberal Lion,” Justice William Brennan, came out on the side of free speech in 88% of the cases he heard, and only twice did he reject a free speech claim that a majority of the court accepted. But now campus free speech is all about making sure that only the approved people state the approved message. We are told this is to protect the truth and avoid speakers like Milo from committing thought crimes.

Although DePaul is a private institute and not legally bound by the Free Speech Clause, and thus the obligation to protect the speaker from a hostile crowd, it can be condemned for its choice to suppress speech by instructing their security staff to do nothing. Moreover, this was an event sponsored by a student run club, who should have the right to associate freely with Milo and share his message.

In contrast to the current illiberal approach to speech, Brennan wrote the following (internal citations omitted):

The constitutional protection does not turn upon “the truth, popularity, or social utility of the ideas and beliefs which are offered.” As Madison said, “Some degree of abuse is inseparable from the proper use of every thing, and in no instance is this more true than in that of the press.” * * *

To persuade others to his own point of view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained, in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.

That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the “breathing space” that they “need . . . to survive[.]”

Breathing space, as Brennan put it, is important for ideas specifically and free speech generally. Ultimately, if the culture of free speech is undermined, then eventually the legal protections for speech will be too. And weakening legal protections for speech will lead to the criminalization of speech. Most of us forget that noncompliance with state demands ends with compulsion. Don’t pay your taxes and eventually the government takes your stuff by force. And if you financially benefit from insider information, then agents with guns take you to jail. Criminalization of speech leads to people with guns taking you to jail.

Because the core of free speech is valued to be important, the free speech defenses are placed at the outer boundary, protecting a great deal of minority speech. Judge Richard Posner referred to this as the forward defense of free speech. In addition to the legal protections, we should care about the private suppression of speaker such as Milo and others. But also we need to be on guard for the criminalization of speech that “seems like a good idea.”

For example, we may not like people angrily and unjustly calling a police officer a pedophile, but that is separate from whether we want to subject the speaker to being arrested and sent to jail for being a jackass:

An activist and entrepreneur who styles himself “NJ Weedman” says authorities made a big mistake charging him with cyber harassment for calling a New Jersey policeman a “pedophile” – and some legal experts say he’s right.

Edward Forchion operates a restaurant called NJ Weedman’s Joint across the street from City Hall in Trenton, New Jersey’s capital. Next door is his “temple,” where state-legal medical marijuana patients and other congregants use cannabis.

Forchion says business boomed after he opened shop last year, but that cops scared off customers when a fight over whether the temple could stay open late at night snowballed. On May 10, he walked out of his restaurant with a sign saying “We-R-Open F–k the Police.” Cops arrived, including Trenton Police Department Officer Herbert Flowers.

“We got pedophile police officers interfering with free speech – this is protected, if it wasn’t protected he would have arrested me,” Forchion said as he heckled Flowers, asking at one point if the policeman used a condom with “that little girl.”

Referring to this case, First Amendment professor Eugene Volokh points out to an important distinction that can easily be blurred:

…while the law may often restrict speech directed to unwilling listeners, it generally can’t restrict speech about unwilling people, even when that speech is “lewd” or “indecent” and is supposedly “inten[ded] to emotionally harm.” That’s especially clear when the speech is about police officers or other government officials.

Certainly, it makes sense to have some protection for individuals being forced to hear speech that that person does not want to hear. But it is a different matter to say that just because a person holds a specific job or office that speech about that person is off limits. Otherwise, it’s quite a slippery slope to criminalizing speech about national leaders, which is common in other bastions of freedom such as North Korea.

Eugene continues:

At worst, they are accusations that the police officer is a pedophile and taunts about whether the officer used a condom when having sex with a little girl, but while those are certainly very serious allegations, they aren’t “lewd” and “indecent.”

To conclude otherwise, you’d have to say that all accusations of sex crimes are covered by the law, if intended to “harass” and “emotionally harm” — which is hard to imagine as a reasonable interpretation of the statute.

While this is still at the charging stage, it still illustrates why free speech protections are important. Weedman was arrested because he said something that, despite probably being untruthful, hurt someone’s feelings, and that particular person had authority to “do something about it.” Not exactly keeping with the idea of equal justice before the law.

Eugene concludes:

Now accusing someone, police officer or not, of being pedophile may well be libel. The New Jersey legislature, however, has repealed its criminal libel law, and the criminal harassment law is not a substitute: It doesn’t require all the elements required for libel law, criminal or otherwise, such as proof of falsehood (and any necessary mental state as to the falsehood). The police officer could sue Forchion for such speech. But he can’t lawfully have him prosecuted for it.

So probably Weedman will eventually avoid prosecution, but the point is the legal distinctions involved here are relatively subtle. And subtleties of free speech protection won’t be worth the effort to maintain if the culture at large is hostile to the idea of free speech. While it’s not a straight line, the path criminalizing calling a police officer a pedophile starts with suppressing the speech of folks like Milo.

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