Any day now, the Supreme Court will hear oral arguments in a free-speech case that could cement a dangerous precedent—one establishing a de facto double standard in government's favor.
The case stems from the election season of 2004, when a group of 200 or so protesters showed up near a Jacksonville, Oregon, restaurant where George W. Bush was eating. They started chanting about Bush's polices on war and the environment. After 15 minutes or so, the Secret Service decided that was enough anti-Bush speech for the day. Agents instructed local law enforcement to move the demonstrators—which was done, with riot police firing plastic bullets.
A pro-Bush demonstration nearby was allowed to continue unimpeded.
Michael "Mookie" Moss and his anti-Bush compadres have a strong claim that the disparate treatment violated their First Amendment rights. But they are spitting into the wind of a two-year-old precedent. In 2012, the Supreme Court said Secret Service agents enjoyed qualified immunity in arresting Steven Howard, who accosted Vice President Dick Cheney and told him his "policies in Iraq are disgusting."
Justice Ruth Bader Ginsburg wrote that "officers assigned to protect public officials must make singularly swift, on-the-spot, decisions whether the safety of the person they are guarding is in jeopardy. In performing that protective function, they rightly take into account words spoken to, or in the proximity of, the person whose safety is their charge."
You can see the sense in that. At the same time, though, you can see how such a policy creates a bias in favor of the government: People who oppose the incumbent party's policies are more likely to be considered potential threats than people who support them.
A similar problem bedevils the 35-foot-buffer zone around Massachusetts abortion clinics that the high court also is scrutinizing this term. Defenders of the buffer zone claim it does not violate the Constitution because it is a neutral rule that applies to everyone and is meant merely to ensure safe access to abortion clinics. As Boston Globe writer Jeff Jacoby noted earlier this year, "that concern is understandably taken seriously in the state where John Salvi murdered two employees of Planned Parenthood clinics in 1994."
But as Jacoby also notes, murder, the use of physical force, and even the threat of physical force are already against the law. Federal law prohibits obstructing access to a clinic. The Massachusetts buffer zone, then, seems designed to protect potential clients from the discomfort of close proximity to abortion protesters.
That impression was reinforced during oral arguments, when Justice Samuel Alito hypothesized two women within the buffer zone—one telling a potential client "this is a safe facility," and the other telling her, "this is not a safe facility." The only difference between the two, he noted, "is that they've expressed a different viewpoint." Yet under the current statute one of them—the anti-abortion protester—has violated Massachusetts law and the other has not. Once again, a safety rationale enables viewpoint discrimination.
Many American universities are subordinating free speech not merely to physical safety but to emotional equilibrium. The problem extends beyond campus speech codes and "free-speech zones," both of which have received considerable attention in recent years. On many campuses, certain viewpoints are considered so inherently offensive that they require silencing.
The Harvard Crimson recently published a student essay arguing that academic freedom should be eliminated and replaced with "academic justice," which would ensure the university did not permit "research promoting or justifying oppression." (At Harvard, that could cover just about anything.) Two Rutgers campuses have voted to rescind speaking invitations to Condoleezza Rice, although Nancy Pelosi remains welcome to speak. On the Santa Barbara campus of the University of California, associate professor of feminist studies Mireille Miller-Young recently snatched anti-abortion signs from two protesters and stormed away, calling them "terrorists."
A column in the student newspaper accused the pro-lifers of "selfishly abusing" freedom of speech: "UCSB prides itself on inclusivity and diversity, yet these groups have actively chosen to ignore the myriad people these images negatively impact. … These groups have failed to give students the right to choose to partake in such events, stripping individuals from their choice to practice self-care in topics as deep as abortion." The pro-lifers, said the student author, should have given everybody a warning first — an idea that received approval in the liberal magazine Salon.
Advance warning of potentially upsetting free speech doesn't apply only to pictures of dead fetuses. On some campuses, it also applies to The Great Gatsby, Downton Abbey, Glee, and Chinua Achebe's Things Fall Apart—all of which have been recommended as material meriting a "trigger warning."
Trigger warnings provide advance notice of potentially disturbing material. According to a piece by Jenny Jarvie in The New Republic, they started on Internet forums for victims of abuse who might be upset by certain graphic descriptions that could "trigger" post-traumatic stress. From there they jumped to college campuses, where their use was broadened to cover anything that might possibly offend anyone.
At UC Santa Barbara (again!) students recently passed a resolution demanding mandatory trigger warnings on all class syllabi. Oberlin has produced an official policy on trigger warnings that covers "racism, classism, sexism, heterosexism, cissexism, ableism, and other issues of privilege and oppression." (Cissexism is bigotry directed at transgender people.) Trigger warnings have become so widespread Slate called last year the "Year of the Trigger Warning."
Trigger warnings are not censorship per se, though they certainly are censorious: They convey the message that a book, play, or newspaper article is suspect, simply because someone reading it might experience emotional discomfort. Yet many works of art and literature are produced precisely in order to produce emotional discomfort, and thereby raise the conscience of the audience.
Suggesting that people should be protected from emotional discomfort, then, implies that they should not be challenged to think too hard—or even think at all—about certain things. As Jarvie writes, "Structuring public life around the most fragile personal sensitivities will only restrict all of our horizons. Engaging with ideas involves risk, and slapping warnings on them only undermines the principle of intellectual exploration." That trigger warnings have gained any purchase on college campuses contradicts the very purpose of a university.
They also are inimical to the ideals of free expression. The Constitution guarantees everyone a right to speak his or her mind. It guarantees nobody the right to go through life cocooned away from anything he or she would rather not hear. Those principles apply to everyone—from the lowest college freshman to the president of the United States.
This article originally appeared in the Richmond Times-Dispatch.