Campus free speech realities and myths | Lee Rowland | TEDxUniversityofNevada

University of Nevada, Reno (UNR) students and graduates have been embroiled in two of the biggest free speech controversies in recent years. In 2016, UNR graduate and National Football League (NFL) player Colin Kaepernick protested before football games when he refused to stand for the national anthem. In the summer of 2017, UNR student Peter Cvjetanovic became the face of the white nationalist rally he attended in Charlottesville, Virginia. Reflecting on these examples, Lee Rowland discusses three myths about our First Amendment rights and then concludes with practical suggestions for exercising free speech rights powerfully and strategically. Lee Rowland is a senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project. Lee has extensive experience as a litigator, lobbyist, and public speaker. She has served as lead counsel in federal First Amendment cases involving public employee speech rights, the First Amendment rights of community advocates, government regulation of digital speech, and state secrecy surrounding the lethal injection process. She also authors amicus briefs and blogs on topics including the intersection of speech and privacy, student and public employee speech, obscenity, and the Communications Decency Act. While at the ACLU, Lee has served as an adjunct clinical professor for NYU Law’s Technology Law and Policy Clinic, a member of the New York Bar Association’s Communications and Media Law Committee, and an adjunct faculty member in the Human Rights Program at the Roosevelt House Public Policy Institute at Hunter College.

This talk was given at a TEDx event using the TED conference format but independently organized by a local community. Learn more at https://www.ted.com/tedx

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 else 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,

ear 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 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's 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 and specific
risk of harm to a real person?"

And they said,

"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
your 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 lined 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 want to 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
throughout 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.

(Applause)