Vandalism Isn't Protest: It's Vandalism

It's disheartening to watch progressives abandon the First Amendment.

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Reuters

"New Yorkers Resist Islamophobic Ads," ThinkProgress briefly proclaimed, until prudently changing the tag line for a report on the defacement of "racist" anti-Muslim subway ads. Ben Armbruster's brief post doesn't explicitly endorse vandalism as a response to offensive political messages, but the deleted caption made its implicit approval clear: Describing vandalism as "resistance" ennobles it.

I'm not deriding the anger or anxiety provoked by the ads: Muslims have suffered repression and discrimination at the hands of private groups and government officials since 9/11. The hesitancy of progressives to defend "Islamophobic" speech from vigilantism reflects, in part, the time and energy they spend defending the rights of Muslims. Standing up against vandals who "stand up" to bigotry must feel like switching sides -- unless you habitually take the side of free speech, regardless of who's talking.

But, as I frequently lament, progressives are abandoning the First Amendment in favor of regulating whatever speech they deem hateful, discriminatory, or merely uncivil. Eric Posner makes a familiar case for censorship here, stressing that free speech is not a universal value, as if that were a good reason for discarding it in favor of a heckler's veto. "Try explaining [First Amendment guarantees] to the protesters in Cairo or Islamabad," he concludes triumphantly, as if we should allow their sensibilities to define our rights.

I doubt that Posner and other aspiring censors would consistently apply the general proposition that speech should be repressed if it provokes protests, including some that take the form of riots. If a group of agitated free speech advocates picketed outside his office to protest his dangerously anti-libertarian views, I doubt he'd agree to stop disseminating them.

Posner's column merits mentioning not because he raises any interesting new arguments that call for interesting new responses (he doesn't), but because his credentials as a University of Chicago law professor enhance the old arguments and reflect the increased respectability of censorship among educated elites. "There is a distinction between unpopular and unwelcome political views," Harvard Professor Diana Eck nonsensically declared last year, in an effort to justify canceling the courses of an economics professor whose op-ed about terrorism offended a group of Harvard students. What precisely is the distinction between unpopular and unwelcome political views? I think it's the distinction between speech Professor Eck likes and speech she doesn't like -- in the latter case, speech against beleaguered religionists.

Sympathy for the downtrodden too often translates into sympathy for violence or vandalism on their behalf against particularly "unwelcome" speech. Of course, there's a difference between sympathizing with people who deface subway ads and sympathizing with homicidal rioters. But it's mostly a difference of degree. And while solicitude for the targets of presumptively hateful speech rarely translates into explicit endorsements of violence, in respectable circles, it often produces calls for censorship that blame the speech for the violence more than the people who engage in it. You can't "shout fire in a crowded theater," we hear incessantly, as if that hoary phrase sufficed for argument. "Three Generations of a Hackneyed Apologia for Censorship Are Enough," Ken at popehat.com protests, in an essential takedown of the Oliver Wendall Holmes proverb. Holmes first used it to justify the criminalization of dissent and uphold the conviction of Charles Schenck for condemning the draft during World War I.

One person's hate speech or threat to national security is another person's dissent. Who knows whether the New York subway ads would have struck Holmes as the equivalent of falsely yelling fire. (And, really, who cares?) People who share their anti-Muslim sentiments probably regard the ads as essential political speech, and not sharing their sentiments, I'd still have to agree.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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