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Texas Governor Abbott Doesn't Understand the First Amendment

By Aaron Sobczak
 Mises.org

May 7, 2024

On the 27th of March, Texas Governor Greg Abbott signed an executive order which had the purpose of curbing speech deemed as "anti-semitic" on all state-run universities. Unfortunately, speech protection on public universities has been shaky in the past with universities attempting to restrict speech many times with varying levels of success. Supreme Court decision  Healey v James 1972 states that "Among the rights protected by the  First Amendment is the right of individuals to associate to further their personal beliefs. While the freedom of association is not explicitly set out in the Amendment, it has been held to be implicit in the freedoms of speech, assembly, and petition." There is a long precedent of courts protecting speech, even what is considered hate speech in the United States. This has previously extended to college campuses, although states universities have challenged this ruling.

The terrible events of October 7 have prompted the Governor to issue an executive decree related to speech, specifically speech which is deemed to be anti-semitic. One can argue the semantics behind labeling anti-zionist speech as anti-semitic speech, but regardless, the First Amendment and court precedent has been clear on the topic. The executive order given by Governor Abbott features language which conflicts with the the First Amendment. In the order, the Governor supposes that the  graffiti marked on Texas university campuses was anti-semitic. While of course graffiti or property damage of any sort is unacceptable, the pictures mentioned are not anti-semitic but are anti-zionist. Similarly, any sort of harassment or violent threats of individuals cannot be condoned, but his executive order goes far beyond that. The order essentially strengthens and affirms the state's ability to crack down on undesirable speech on state campuses. He also orders campus free speech policies to be revised to take into account a rise in anti-semitic language.

The difference between anti-semitic and anti-zionist speech is tricky, full of conflicting definitions and bias. This is why the best policy is to follow the precedent laid out by the Supreme Court. In addition to banning protected hate speech, Texas universities have also curbed speech that may "disrupt the core education educational purpose of a university". This is of course subjective, as any single faculty member could claim that a person's speech, or words written on clothing is disruptive. Additionally, the United States has a history of peaceful protests on college campuses and in the public sphere. Restricting these protests is anti-American, and anti-freedom of expression.

One could argue that this sort of speech may make some uncomfortable, or that some may feel unsafe as a result. Supreme Court decision  Snyder v Phelps, 2011 should quiet these concerns. This case involved members of the Westboro Baptist Church, and their picketing, specifically that of veteran funerals. Their picketing signs would widely be though of as hateful, and anti-social. The picketers were initially told to dismiss and fined considerably. The case went all the way to the Supreme Court, ending with the confirmation that peaceful hate speech is protected by the First Amendment. Additionally, it was understood that even speech which may disrupt in the public sphere is protected, as the picketing took place initially at a funeral. Relating this back to Texas universities, the implications should be clear. Speech in the public sphere, which is not a  true threat, is protected by the constitution.

Peaceful protesting in American cities and college campuses is a normal activity and is beneficial for societal dialogue. This is also one of the ways which citizens are able to keep government accountable, especially while the federal state is so expansive. Governor Abbott has claimed to be a defender of freedom and the constitution. As is often the case with politicians, this is virtue signaling, not action. The constitution is clear on how expression is to be protected in the public sphere. The libertarian solution of course may be to support a society which consists exclusively of private property and private communities. If this were the case, every institution could clearly set preferred speech guidelines without violating civil rights. As this is not currently the case, libertarians should recognize the constitution and the importance of the rule of law in society. Governor Abbott would be wise to do so as well, irregardless of donor or voter pushback.

Note: The views expressed on  Mises.org are not necessarily those of the Mises Institute.

On the 27th of March, Texas Governor Greg Abbott signed an executive order which had the purpose of curbing speech deemed as "anti-semitic" on all state-run universities. Unfortunately, speech protection on public universities has been shaky in the past with universities attempting to restrict speech many times with varying levels of success. Supreme Court decision  Healey v James 1972 states that "Among the rights protected by the  First Amendment is the right of individuals to associate to further their personal beliefs. While the freedom of association is not explicitly set out in the Amendment, it has been held to be implicit in the freedoms of speech, assembly, and petition." There is a long precedent of courts protecting speech, even what is considered hate speech in the United States. This has previously extended to college campuses, although states universities have challenged this ruling.

The terrible events of October 7 have prompted the Governor to issue an executive decree related to speech, specifically speech which is deemed to be anti-semitic. One can argue the semantics behind labeling anti-zionist speech as anti-semitic speech, but regardless, the First Amendment and court precedent has been clear on the topic. The executive order given by Governor Abbott features language which conflicts with the the First Amendment. In the order, the Governor supposes that the  graffiti marked on Texas university campuses was anti-semitic. While of course graffiti or property damage of any sort is unacceptable, the pictures mentioned are not anti-semitic but are anti-zionist. Similarly, any sort of harassment or violent threats of individuals cannot be condoned, but his executive order goes far beyond that. The order essentially strengthens and affirms the state's ability to crack down on undesirable speech on state campuses. He also orders campus free speech policies to be revised to take into account a rise in anti-semitic language.

The difference between anti-semitic and anti-zionist speech is tricky, full of conflicting definitions and bias. This is why the best policy is to follow the precedent laid out by the Supreme Court. In addition to banning protected hate speech, Texas universities have also curbed speech that may "disrupt the core education educational purpose of a university". This is of course subjective, as any single faculty member could claim that a person's speech, or words written on clothing is disruptive. Additionally, the United States has a history of peaceful protests on college campuses and in the public sphere. Restricting these protests is anti-American, and anti-freedom of expression.

One could argue that this sort of speech may make some uncomfortable, or that some may feel unsafe as a result. Supreme Court decision  Snyder v Phelps, 2011 should quiet these concerns. This case involved members of the Westboro Baptist Church, and their picketing, specifically that of veteran funerals. Their picketing signs would widely be though of as hateful, and anti-social. The picketers were initially told to dismiss and fined considerably. The case went all the way to the Supreme Court, ending with the confirmation that peaceful hate speech is protected by the First Amendment. Additionally, it was understood that even speech which may disrupt in the public sphere is protected, as the picketing took place initially at a funeral. Relating this back to Texas universities, the implications should be clear. Speech in the public sphere, which is not a  true threat, is protected by the constitution.

Peaceful protesting in American cities and college campuses is a normal activity and is beneficial for societal dialogue. This is also one of the ways which citizens are able to keep government accountable, especially while the federal state is so expansive. Governor Abbott has claimed to be a defender of freedom and the constitution. As is often the case with politicians, this is virtue signaling, not action. The constitution is clear on how expression is to be protected in the public sphere. The libertarian solution of course may be to support a society which consists exclusively of private property and private communities. If this were the case, every institution could clearly set preferred speech guidelines without violating civil rights. As this is not currently the case, libertarians should recognize the constitution and the importance of the rule of law in society. Governor Abbott would be wise to do so as well, irregardless of donor or voter pushback.

Note: The views expressed on  Mises.org are not necessarily those of the Mises Institute.

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