As citizens of a nation founded on the ideals of individual liberty, we Americans cherish our core freedoms, and perhaps none more noisily than our First Amendment freedom of speech. Like the right to remain silent, the right to sound off about the stuff we like and don’t like is one all of us learn from a young age. As such, we don’t take kindly to threats to curtail it. “It’s a free country,” FCC chairman Ajit Pai responded back in May to calls for Late Show host Stephen Colbert to be sanctioned for a racy anti-Trump joke. “That’s one of the things we have to respect going forward, what the courts have said about our legal power in this area…By and large, unless it’s indecent, profane[, or] obscene under our rules or as interpreted by the Supreme court, the FCC’s authority here is pretty limited.” Pai is of course a Trump appointee, and is himself no great champion of individual liberty where issues like net neutrality are concerned. That he acknowledged Colbert’s right to refer to POTUS’s mouth as “Vladimir Putin’s cock holster,” then, gives a pretty good sense of how sacrosanct free speech is.
It follows that where we draw the line between protected speech and “indecent, profane[,] obscene,” or otherwise unprotected speech defines us in a fundamental way. This line has been hotly contested in recent decades, during which several Supreme Court decisions have broadened protections for many extreme forms of speech, including hate speech, that are less tolerated in other democratic nations around the world. The past two years, though, have witnessed an unprecedented assault on conventional thinking about protected speech – and just plain acceptable speech, for that matter – with the rise of Donald Trump.
Trump’s brand of plain-spokenness (to put it charitably) has fallen well beyond the pale of the kind of speech historically condoned from a US president. The problem lies not simply in the vulgarity of what he’s been saying (or the fact that he lies constantly). Most troubling, arguably, is the dark aggression infusing many of his remarks, whether full frontal like his attacks on Muslims, women, protesters, and the media or partially veiled as in his equivocations after Charlottesville. The veiled stuff is particularly dangerous since it enables him to advance in plain sight an agenda most Americans – including, I suspect, more than a few of his supporters – find deplorable while skirting the legal prohibition against speech “likely to incite or produce” “imminent lawless action.”
That none of this shit disqualified Trump out of hand from ascending to the office of POTUS has not only served as fodder for reams of political and social analysis. It’s raised fundamental questions about what we Americans should and shouldn’t be able to say to each other in public, and in the process has degraded our most cherished individual right. For those of us on the receiving end, the mainstreaming of Trumpian plainspeak has inevitably made our lives more difficult. I’d like to consider the implications of this development by looking at a little incident from mid-October that impacted the LGBTQ community on the campus of Cleveland State University.
In case you missed it, here are the details of the incident:
On Thursday, October 12, the day the university’s first LGBT center opened, at least two fliers, and possibly more, appeared in the campus’s Main Classroom building depicting the silhouette of a hanged man with a rainbow colored heart and the title, “Follow Your Fellow Faggots,” along with partially inaccurate statistics on suicides within the LGBTQ community. The phrase “Fascist Solutions” was printed at the bottom of the flier. Whether this was the name of the group responsible for the fliers isn’t clear (no contact info was provided, natch, just a wannabe-badass Nazi-style logo). The fact that basically the same flier appeared at a Houston, Texas, bus stop back in the spring is suggestive but not conclusive.
Perhaps more disturbing was the university’s response to this incident:
- President Ronald M. Berkman’s initial statement, issued Monday of the following week, began by affirming the school’s commitment to “maintaining a welcoming environment” by fostering “a campus community that respects all individuals, regardless of age, race, color, religion, national origin, sexual orientation and other historical bases for discrimination.” He followed that conventional verbiage, however, with this statement: “CSU also is committed to upholding the First Amendment, even with regard to controversial issues where opinion is divided. We will continue to protect free speech to ensure all voices may be heard and to promote a civil discourse where educational growth is the desired result.” It wasn’t until the next day that Berkman saw fit to “express [his] personal outrage” over the incident, and to explicitly acknowledge that the flier’s contents were “anti-LGBTQ+.” He also reaffirmed the school’s stance on the First Amendment, but offered a rather more conciliatory reason this time, one similar to FCC chair Pai’s: “The current legal framework regarding free speech makes it difficult to prevent these messages from being disseminated.”
- The school’s director of communications and media relations, William Dube, echoed the president’s concern with the First Amendment in discussing how the fliers themselves were dealt with. CSU Facilities Services took down two fliers, he said, “because proper posting procedure was not followed. Prior approval needs to be provided before posters are added to that billboard.” Had this procedure been followed, he indicated, then “according to the legal framework related to free speech [the fliers] would have been allowed.”
To put it mildly, there are more than a couple of things amiss in all this.
The first thing that strikes me about the university’s response is its not so tacit homophobia and transphobia. What if the flier had promoted date rape? What if the figure hanging from the noose had been African-American? Would either Berkman or Dube have quite so callously foregrounded the university’s commitment to protecting free speech in such cases? I’m inclined to doubt they would. If not, that would give the lie to the president’s bogus pedagogical piety in wishing “to ensure all voices may be heard and to promote a civil discourse where educational growth is the desired result.” Surely not “all” voices are welcome at CSU: there are some perspectives that would be beyond the pale even if the appropriate posting guidelines were followed.
Second, what sort of “educational growth” is “promoted” by allowing a flier like that to be posted on campus? To show students that there are people who hate LGBTQ folks and want us dead, or that we face discrimination from institutions as well as individuals, even those like universities that claim they have our backs? Maybe to underscore the importance of fact-checking statistics? Are these lessons worth teaching sheltered (or bigoted) cis, straight students at the risk of triggering queer ones (cuz few of us in the latter group have many doubts by our late teens where the first two questions are concerned)?
The matter of triggers gets us to the crux of what’s wrong with the university’s response to this incident: what on God’s green earth is civil about the “discourse” on that flier? What forms of exchange does such speech promote besides a screaming match, and actual physical violence? More importantly, at what point does the right of some to silence or incite harm against others impinge overmuch on the latter’s right to feel safe – to exist? Whatever their intentions, Berkman and Dube’s failure to affirm unequivocally from the get-go that the well being of the university’s LGBTQ students trumps the rights of bigots to hate them was a dog whistle to the latter every bit as much as POTUS’s response to Charlottesville was to white nationalists.
If the absence of a swift condemnation was damning, there remains the matter of the university’s invocation of the First Amendment. Here, the technical intricacies of First Amendment law chafe against more basic ethical questions. Should college campuses, or schools at any level, be required to tolerate such forms of speech, in particular when vulnerable minorities are targeted? More broadly, in what arenas should we as a society tolerate them? These questions point to the unprecedented ways in which the loosening of protections for the victims of hate speech has been exploited in the Trump era.
The problems stem in large measure from the Trumpian assault on truth itself: the insistence that there are such things as “alternative facts,” that in purely epistemological terms, everyone’s views are equally valid. The implication of this radical relativism where “free” speech is concerned is that all voices have an equal right be heard anytime and anywhere. Put another way, the content of the speech has no necessary relationship to either its context or its intent. Thus for example there’s no legitimate reason to ban a “Follow Your Fellow Faggots” flier from a college campus because even if one finds its contents deplorable, the rights of the haters must (if with much wringing of hands) be respected. The fact that the flier’s aim is to intimidate LGBTQ students and inflame homo- and transphobia on the campus, and that such an aim runs directly counter to the university’s stated mission of “promot[ing] a civil discourse” and “maintaining a welcoming environment” – both are by the Trumpian logic irrelevant.
The reason this “logic” is so specious ultimately lies in the degree to which it goes against the most basic principles of our nation’s legal and civic traditions. Historically, legislatures and courts have sought to balance (however imperfectly) the protection of individual liberties with broader societal needs, and to curtail speech deemed likely to cause demonstrable harm to others, or otherwise have an adverse effect on the common weal. Viz. the well known prohibition against falsely crying “Fire!” in a crowded theater. Harm, though, is of course the whole point of Trumpian plainspeak. And it’s not just that such speech can itself wound. Hate speech and other extreme forms of expression rarely stop at words: as alluded to in passing above, their aim is to incite (tacitly or explicitly) some sort of negative action against the target of their hate. Moreover, as the attacks on Islam and the media make clear, the attempts to redraw the line dividing protected and unprotected speech in the Trump era, and the assault on truth underlying those attempts, aren’t ends in themselves. Their goal, in other words, isn’t to wreak havoc for its own sake. Rather, delegitimizing our legal and civic traditions is a ground-clearing operation, an attempt to condemn and blow up the existing structure, so to speak, so that a new one can be erected in its place. What that new structure would look like isn’t hard to imagine. “I - am - your - voice!” Trump notoriously declared to the people he called “the forgotten men and women of our country” during his acceptance speech at the Republican convention last year. “I’m the only one that matters,” he similarly asserted when asked recently about the gutting of the U.S. State Department and its effect on advancing his foreign policy (to the extent that he has one). Permissible “free” speech in Trump’s envisioned America is simply Trumpspeak, loudly reverberating through a 24/7 campaign rally in an enormous gaudy auditorium with a giant gold T above the entrance.
The danger at present lies less in the possibility that this dystopic end game will be realized – our core institutions have thus far withstood the onslaught – than in the collateral damage that the chaos is creating in the meantime. The Cleveland State incident is one example of how the degradation of free speech is impacting vulnerable minorities – in this case, the one I belong to – in the Trump era. It also clearly illustrates how such incidents should not be handled by those in authority. Consider by way of contrast a recent incident at a Nashville charter school in which a teacher posted a video on Snapchat of a student’s hijab being removed in her classroom with the caption, “lol all that hair cover up [sic].” This is another clear example of a speech act facilitated, if not directly spurred, by the climate of bellicose intolerance fostered by the Trump régime. The school’s handling of it, though, was far different from CSU’s: it placed the teacher on indefinite leave without pay while investigating the incident, and then fired her based on the investigation’s findings. This is what “promot[ing] a civil discourse where educational growth is the desired result” looks like.
It’s true there’s a danger in reacting to such events too precipitously, as some have suggested a school in Fairfax County, Virginia, did in response to a similar incident a couple of weeks ago. And there remain the recent judicial precedents expanding the First Amendment tent to shelter vitriol as well as dissent. Still, all of us, institutions as well as individuals, who uphold the ideal of truly civil discourse need to stand firm in our nation’s legal and civic traditions and oppose by whatever means necessary these evermore frequent and brazen expressions of bigotry. For the dog whistles have called out the dogs, and we’re now in a dog fight for our lives.