2017 was a hell of a year for the First Amendment.
Nowhere was more central to this culture war
than the campuses and universities across America,
including right here, at the University of Nevada, Reno.
Two UNR students became infamous for their speech in the past year,
found themselves embroiled in two of the biggest free speech controversies
of the past couple of years.
Student, Peter Cytanovic became the face of white nationalism,
when a picture of him snarling, holding a tiki torch
at the Unite the Right Rally in Charlottesville went viral.
On the complete opposite end of the political spectrum,
if you can call it that,
graduate, Colin Kaepernick, went on to the NFL
and used his position to highlight police brutality and racial injustice,
by taking a knee during the National Anthem.
Both men became incredibly controversial for their speech.
There were calls and campaigns for both men to be expelled for their opinions.
But regardless, whether you agree with one of them, or both of them, or neither,
the First Amendment protects both of those men and their opinions
from censorship and retaliation by the government.
That's a good thing, and I want to tell you why.
It's becoming more common for me to hear
that we should have lower protections for speech,
that specifically, we should criminalize hate speech.
I hear this from the left a lot.
I think a lot of progressives envision a world where people
like Colin Kaepernick can take a knee and protest of racial injustice,
without fear of retaliation from the government,
without fear that the President will pressure the NFL to fire him.
But they also want to live in a world where a government school like UNR
can expel a student like Peter Cytanovic for his hateful views.
That is a fantasy.
And more than that, it's dangerous.
I'm a progressive,
it's not hard for me to pick between white nationalism and racial justice.
One is abhorrent, one is an overdue demand for equal rights.
But what would happen if I gave a government the right to decide
which of those men was too hateful to speak?
President Trump is a pretty useful barometer.
He called the marchers at Charlottesville, "very fine people,"
while reserving his ire for black football players who take a knee
as "sons of bitches."
Your hate speech may not be the government's idea of hate speech.
I sure as hell know, it's not mine.
But even if you happen to agree with Trump,
can you be confident that the next President, the next government
will agree with your world view?
You shouldn't be.
That's why, above all, I am an anti-authoritarian.
I know that the U.S. government has a long history
of wielding its raw power against the vulnerable communities
that speak truth to that power,
against those who seek to change the status quo.
And because I want every student to be able to take a knee
without fear of government censorship,
I am a true believer in the First Amendment.
But even as a First Amendment attorney, I find a lot of the common tropes
and myths about the First Amendment really unsatisfying.
So, I wanna go through three of these myths, dust them off,
and hopefully in the process,
we'll come up with three practical rules for exercising your free speech rights,
powerfully and strategically.
So the first one, is one I suspect we all learned in Kindergarten,
if you remember your nursery rhymes, please feel free to join me.
Sticks and stones may break my bones but words will never hurt me.
Does anyone, as an adult, actually believe this?
It's manifestly untrue.
I'm a free speech attorney precisely because I believe that words matter,
it's ludicrous to protect free speech by denying its very power.
So, why do we lie to kids, right?
Why do we fabricate this thing for them?
Well, it's because humans of all ages can be vicious, it's just true.
And when a kid is at the receiving end of injustice, a taunt, hateful language,
we want that kid to be empowered, not diminished.
In February, notorious troll, Milo Yiannopoulos,
had a planned speech at UC Berkeley.
Students and others in the community went nuts.
There were protests, there were riots, things were set on fire.
The administration cancelled his talk.
In April, there was a repeat, same thing, except this time, it was Ann Coulter.
She was going to speak,
School officials said, "There's going to be riots."
They cancelled her talk.
Those two individuals, Ann and Milo, man, they became martyrs.
They got to take on the roll of victims of liberal censorship.
They went on media tours, the media ate it up.
They got more attention for being silenced than they ever did
for trying to peddle their actual substantive views.
So, I think it's helpful to think of professional, provocateurs and trolls
as we would those schoolyard bullies.
Yeah, their words can hurt, there's no point in denying that.
But the better question is, how do we respond to that, right?
And a troll, a provocateur wants you to censor them.
That's part of the goal, it feeds into their power,
it gives them something to sell.
So, we don't have to march to that tune.
You don't have to play that role.
And we can think of them, like these bullies,
yeah their words hurt, but, there's also power in sass.
There's power in refusing to be goaded into a fight
or to play the role of censor.
So, don't do it.
But some words wound in ways that are different from others.
Which brings us to myth number two.
I hear this one a lot, particularly online.
We all know that hate speech isn't protected by the First Amendment.
Not so.
As that anecdote about Trump hopefully made you think,
hate speech can be in the eye of the beholder,
ire of the behearer, I guess, if that's a word.
Just this week in Spain,
a man was arrested for the hate crime, this is real, of calling cops "slackers."
on Facebook.
Police are covered under the Spanish Hate Crime Law.
That's what criticizing your government looks like in a country
without a First Amendment.
But, we don't have to protect speech just out of paranoia
that our government will warp what we think speech and hate speech are.
There's also an upshot.
In the late 1960's,