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,
a KKK leader, named Charles Brandenburg, was arrested on criminal charges
of incitement to violence for holding a KKK rally.
The speech was as abhorrent, as vicious, racist as you might imagine.
But, the KKK's lawyers took it all the way up to the Supreme Court.
And, they challenged this crime.
Said that he had a free speech right to be a KKK member,
and the Supreme Court thought about it and said, "You're right."
Before we allow the government to punish you for your speech,
it has to pass such a high bar,
there has to be an immediate and specific risk
of actual physical violence to a real person.
And this KKK rally, well, it was a group of white racists,
but there wasn't anyone around that they were intending
to actually engage in violence against.
That case, in a vacuum, might be tough to swallow.
I think particularly if you're a person of color.
But it's not the end of the story.
At about the same time,
a lion of the Civil Rights Movement named Charles Evers,
was giving a huge speech to a gathering of NAACP supporters,
who had come together to boycott white-owned racist businesses
that didn't allow black Americans to come into their business.
And as he's giving his speech, Evers gets worked up and really passionate
and he says, "I'll wring the damn neck of anybody who breaks this boycott."
So, what's he done, right?
He's fantasized about some future violence,
it's hypothetical, he's not pointing at Bob there, right?
So, the Brandenburg case has just come out of the Supreme Court
and the NAACP lawyers look at that and they say, "Well, this can't be right.
How can a KKK leader get a 'get out of jail' free card,
but our Civil Rights guy, Mr. Evers, is being sued for incitement
by the same white-owned businesses that he was protesting?'
Mr. Evers challenged these charges, too.
And he went all the way up to the Supreme Court.
And the Supreme Court said,
"Well, I guess we're constrained by that Brandenburg case
to give you your free speech rights, too."
I want to be clear, by the way, that I don't see anything equivalent
between the KKK and the NAACP.
But the court is an odd place, it's a bit stripped of context in history.
It's a kind of bastion of privilege.
And all they boiled it down to was,
"Is this theoretical future violence? Or is there an immediate risk of harm
to a real person?"
And they said,
"Well from that point of view, these look the same."
Now, I know a lot of people are skeptical that in practice,
the rights that are extended to people like a KKK leader,
actually trickle down to somebody like an NAACP leader.
They're not wrong to be skeptical.
Our country has always taken a while to distribute its rights equally,
among its citizenry, right?
Think of the right to vote.
Did we all get it at the same time, regardless of sex, regardless of race?
Absolutely not.
Or even in today's world,
do you think your constitutional rights at arrest look the same
regardless of your race?
Your right to carry a gun?
Do you think that looks the same whether you're black or you're white?
Again, no.
But is the answer to eliminate or lessen the very constitutional protections
that allow us to hold the government accountable when it violates our rights?
Hell no.
Instead, making sure that constitutional rights are evenly distributed
is a process, right?
And it's our job, the first amendment is no different.
So, when the Supreme Court, when the powers that be,
give that right to somebody like Brandenburg, a KKK leader,
it's our job, Civil Rights leaders, those who believe in equal rights,
in justice, to ratchet everybody up to that same level of protection
for constitutional rights.
And that's precisely what the NAACP did.
And that's all of our job, too.
That's what I do as a free speech attorney.
and that's what you need to do as students.
You need to make sure that these theoretical rules
filter down on the ground.
So are students up for it?
That brings us to our third and final myth.
"Today's students are just snowflakes."
I hear it all the time.
Usually meant as an insult, by the way, as beautiful as snowflakes are.
So, because of the First Amendment,
public schools and universities can not ban people from campus,
simply because their views are hateful.
So, that means that over the past year,
black and Jewish students have had to leave their dorm rooms
and walk to class passing by people who have called for their extermination.
It means that women students have had to walk by speakers on campus
who call feminism a cancer.
LGBT students have had to walk by people saying,
"Transgenderism is a medical disorder."
No adult has to go to work and walk by people saying
they're less than human or that they shouldn't exist.
I don't think students are snowflakes, I think they're badasses.
Because they bear the brunt of that First Amendment on campus,
where these professional provocateurs come, right?
Now, when I say that silencing you political opponents isn't the answer,
it's not because I think that's weak, it's because I think that's unstrategic.
So, if silencing your enemies isn't an answer,
what does empowerment look like in the First Amendment?
Well sometimes, it's just sheer numbers.
The week after Charlottesville, a group of people planned a rally
on Boston Common that they termed, "The Free Speech Rally."
They were alt-right folks, and this is a week after Charlottesville.
Only a handful of permit-holders showed up.
But, 40,000+ members of the Massachusetts community
and from across the country, engaged in a counter protest
ringing Boston Common, standing strong, right?
Sending a very powerful message of resistance together.
That's a blizzard of snowflakes, right?
There's no weakness in that.
But, sometimes, just a single person will make a difference.
One of my favorite stories from the last couple of years,
one of my favorite free speech victories from the last few years,
is a musician who was really appalled that the KKK was planning to march
in his hometown of Charleston.
And so, using the tools at his disposal, he got out his sousaphone.
That's one of these big brass instruments, BOM-BOM.
And he got out of the street and he got next to the KKK
and he just oompa, oompa, oompa, oompa-ed along with them.
(Laughter)
It's amazing, you should look up the video, it's worth watching.
And without saying a single word, he stripped these fascists bare.
They couldn't even bear to go on marching, they were so humiliated.
You can't keep up a straight face of fascism
with a goofy tuba line behind you, it's just hard to do.
So look, I believe in the First Amendment fundamentally, first and foremost,
because I know it's the greatest tool we have
to keep the government out of regulating the conversations
that spark every change in the world.
If you wanna keep having conversations that change the world,
you should embrace this First Amendment, too,
messiness and all.
And even though those three myths might not be true,
I hope they started to reveal a few real nuggets of truth
about how we can strategically exercise our powerful First Amendment rights.
Number one: Know your history.
Know that when rights are extended to the powerful and privileged,
that it's our job to make sure that everybody benefits from those rights.
Understand that the same First Amendment, that first extended to a KKK member,
was used strategically by Civil Rights leaders
to cover the NAACP leader as well.
That's a success story and we have to keep doing it.
Number two: Don't try to silence your way out of a debate.
As we've seen from Free Speech Week, as we've seen from the Free Speech Rally,
people trying to co-op the term Free speech
just feeds them power.
We can't let them do that.
Free Speech as a concept, its power is in its indivisibility,
its equal for the KKK leader and the NAACP leader alike, right?
So don't dance to that tune.
You don't have to give the provocateur the censorship she's desperately hoping
that you give her.
So, that brings us to number three.
Dance to your own tune.
Figure out for yourself when you go to a counter protest,
in numbers or alone with your tuba.
Figure out when you hold an alternative and more loving event across campus.
Figure out when you think there are ideas that are just fundamentally unworthy
of debate.
And, the way that you figure out how to handle these conflicts,
how to handle speech that you abhor, can be a great guideline
for how you handle conflict through out the rest of your life.
My name is Lee Rowland.
I'm an unabashed progressive, I'm a skeptic, I'm an anti-authoritarian.
For all of those reasons,
I believe in a robust and indivisible First Amendment.
Join me.
Thank you.