Is the Threat of Violence and Discord Killing Free Speech?

May 2, 2019 | Insights

By Nancy W. Hamilton

Two years ago, I wrote that concerns over campus protests on issues of free speech were not a “manufactured crisis” but rather an increasing threat to free speech and the physical safety of students and speakers alike.[1] The March 2017 violent altercations at Middlebury College over the appearance of controversial speaker Charles Murray were front and center that summer as was the violence and destruction at the University of California, Berkeley in protest of Milo Yiannopolous, and at Auburn University in Alabama in protest of Richard Spencer.

Unfortunately, things do not appear to have changed for the better. Instead, they appear to be getting worse. In April, Middlebury College cancelled a speech by philosopher Ryszard Legutko, a conservative member of the European Parliament, citing potential security and safety concerns. At the University of Missouri-Kansas City, a protester was arrested after allegedly dousing conservative commentator Michael Knowles with a liquid substance during a campus speaking engagement.

And, also in April, Google killed its recently formed artificial intelligence council, Advanced Technology External Advisory Council (ATEAC), shortly after its launch following an internal protest, which included a petition signed by over 2,500 employees calling for Google to remove Heritage Foundation President Kay Cole James from the ATEAC council citing her recent tweets that they said were anti-gay and anti-trans. In an opinion piece on, James wrote, “But the Google employees didn’t just attempt to remove me; they greeted the news of my appointment to the council with name calling and character assassination. They called me anti-immigrant and anti-LGBTQ and a bigot. That was an odd one, because I’m a 69 year old black woman who grew up fighting segregation.”[2] “The public square is becoming so poisonous that good liberals and good conservatives must be wary of coming together to discuss ideas and seek solutions,” she wrote. Indeed, in a statement to reporters Google said, “It’s become clear that in the current environment, ATEAC can’t function as we wanted…So we are ending the council and going back to the drawing board. We’ll continue to be responsible in our work on the important issues that AI raises, and will find different ways of getting outside opinions on these topics.”[3]

But how does the Academy or Google or anyone else get “outside” opinions on important issues and topics if the outside speaker’s viewpoint is suppressed and excluded from the conversation? For example, James noted, “My fellow advisory council members have now been deprived of the opportunity to question me about what they might see as a contradiction of my policy views and my absolute unconditional acceptance of every member of the human family. They may not have agreed with me, but they would have understood me better—and, I them. With that we would have had the opportunity to work together to make better public policy on an exceedingly critical issue.”[2] That opportunity has been lost.

While we generally advocate that we should have open conversations and vigorous debate about controversial or offensive topics, it goes without saying that things get very complicated and subjective when we try to distinguish between speech that some find merely offensive and obnoxious versus speech that some view as a form of violence.[4] The current trend of shutting down controversial speech and disinviting speakers with opposing viewpoints does not enhance public debate or dialogue. Rather, it begets and fosters greater intolerance to the detriment of all. In Snyder v. Phelps, 562 U.S. 443, 458 (2011), the United States Supreme Court observed “Indeed, ‘the point of all speech protection…is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.’”

As a society, we must understand that we are strong enough to engage in the “rough and tumble” of spirited discourse and that, indeed, we become stronger for it. Because that is how we learn, and grow in our humanity and understanding.

[1] VIA: The Crisis of Free Speech on Campus: Not Fake News (July 27, 2017)
[2]Kay Cole James: Agree with the left, or be destroyed,” Twin Cities Pioneer Press (April 11, 2019)
[3]Google kills its AI ethics council, barely a week after it formed,” Silicon Valley Business Journal (April 5, 2019)
[4]When Is Speech Violence?,” The New York Times (July 14, 2017)

Meet Nancy

Nancy W. Hamilton has appeared in federal and state courts for clients such as CNN, Fox News, Oprah Winfrey, Dr. Phil, CBS, Inc, The Tribune Company, and U.S. Trust. Her practice experience involves First Amendment, intellectual property, complex commercial, and media litigation. Nancy is a frequent writer and lecturer on trial tactics and media law, including What to do When the Media Calls and Building Rapport in the Courthouse for the Texas State Bar and Trial Techniques for the Media Law Resource Center Annual Conferences in 2006 and 2008. She has also appeared on PBS Houston’s KUHT-TV program The Connection on videotaping jury deliberations. Nancy has been recognized in The Best Lawyers in America list for Litigation – First Amendment since 2012.

Related Insights:

The Crisis of Free Speech on Campus: Not Fake News »
July 27, 2017 | A recent column in the Detroit News, by John Patrick Leary, an Associate Professor of English at Wayne State University, advanced the proposition that concern over the recent protests on campus over free speech is a “manufactured crisis.”

Remaining Vigilant in Protecting Free Speech on College Campuses »
February 28, 2018 | Colleges and universities understandably have grave concerns over disruption and anticipated violence in connection with the appearance of controversial speakers, including public safety and the concomitant expenses resulting from additional security and potential property damage.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.