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The Obvious Truths about Free Speech Protests

By Joel Levin

Free speech is worse than messy. It is unruly, annoying, chaotic, unsightly, loud and intrusive. It
is full of individuals who are uninformed or misinformed, full of statements of exaggeration and
hyperbole, many crude and false, and taken together, too often bothersome, irritating, overblown,
and endlessly repetitive. That is certainly what any close or even casual observer generally sees
and certainly what one hears at so many free-speech protests, particularly as the numbers and
duration increase. However, it is not the source of so much of the present criticism. Rather, that
criticism centers on the occasional intimidating remark or hostile chant, the yell of bias, racism,
and hate, the introduced atmosphere of discomfort, and the vociferous statements ever louder,
more hateful, and more disparaging. All of that is usual; all, if not inevitable, is so common that
surprise must be feigned, bewilderment manufactured.
Yet, despite this, we are treated to the sanctimonious cliches about free speech, its importance, its
inviolability, and its central role in our history. Yet, and there is always a yet, it is cautioned not
to go too far, to be too much of any of the above, to get out of hand, to be unsavory. Integral to
that are five supposedly inviolate accurate statements about free speech protests – protests that
we take here to include assemblies meant to publicize or advocate a political position in a public
or semi-public space – that are clearly true, without controversy, and agreed by everyone. They
are:
1. Civil disobedience is an important tradition in democracies in general and the United States in
particular. However, in any society, those engaged in civil disobedience must be willing to
accept, without argument, any lawful punishment handed down for that disobedience.
2. Intimidation in speech crosses the line and is never acceptable. That is, any belittling of those
on the outside (passers-by, the audience, those in the neighborhood, those within earshot, either
hearing locally or through media) is unacceptable.
3. Damaging property interests goes too far, is illegitimate, and is never morally acceptable.
4. Any misconduct forfeits the right to continue the free speech protest.
5. Outside agitators present a problem in general, and have little or no place in local
controversies or disputes that center around particular areas (for example, schools or
workplaces). Nor should such outsiders be admitted to private or semi-public property outsiders,
regardless of its historically public use for certain events and gatherings. Such agitators are de
facto or de jure (unofficial or official) trespassers and irreparably taint the protest, and should not
be readily tolerated.
All of these truths typically follow the celebratory statements about free speech, as limits of free
speech. They are smug affirmations meant to show support for free speech but nevertheless to

keep it under reasonable control from intrusion or misuse. The difficulty is that each of these
putative truths is not true at all; each is simply and clearly false.
Take acceptance of punishment. A variation of "commit the crime, do the time" seems to be the
logic here. Let us for the moment, maybe for the rest of this article, set aside whether such a
statement is more than a tautology. At best, it is a legal truism: for any legal infraction
committed, punishment is the punishment under the law. That doesn't make it right, just, ethical,
practical, utilitarian, workable, or a good idea. It simply means that the judiciary, the legislature,
or the administration has deemed it wrong, and wrong so for whatever reasons – just or unjust,
practical or impractical, expedient or prudent – it decided. But why should we think, without
knowing more, if the punishment should be accepted if it implies that, as lawyers say, one
assumes the risk? If it is just and right, it ought to be accepted, but so should (by definition)
everything that is just and right, whether concerning pay and advancement, grades and honors,
contract and tort duties, or the ordinary norms of social life. But what if it is not?
Civil disobedience has a long history – and one that is not over – of being met with harsh force
and repression. We can see this recently from Tiananmen Square to the Arab Spring to the
demonstrations from Moscow to Caracas to Yangon to Minsk. The price in too many places at
too many times is not at night in jail or a fine, but days in prison for Martin Luther King, months
in prison for Mahatma Gandhi, years in prison for Nelson Mandela, and death for Steve Biko and
Alexei Navalny. There is the further problem that certain kinds of civil disobedience would not
deserve punishment under any calculation. Such a response is appropriate when dictated by the
gravity of the problem or the harm done, regardless of the usual free speech rules and constraints.
We might think here, for example, of those who protested slavery or fascism, or those, for
example, such as the Mothers of the Plaza de Mayo in Buenos Aires, who protested the torture
and disappearance of thousands of their children.
It might be objected that what happened in any of these examples happened there and then, but it
has never happened here. Putting aside what has happened more recently and perhaps more
controversially here, this situation has occurred in the United States. The situation arose in a
peaceful rally against World War I, a war where participation by every side has not stood up well
to historical scrutiny. In 1918, a perennial candidate for President on the Socialist Party ticket,
one who received 6% of the vote in 1912, delivered an anti-war speech to a peaceful gathering in
Canton, Ohio. For that, Eugene Debs was arrested and convicted. He was sentenced to 10 years
imprisonment and the permanent loss of his right to vote. The case, U.S. v. Debs, was affirmed
by the United States Supreme Court in a unanimous opinion written by Justice Oliver Wendell
Holmes. The celebrated author elsewhere said of the requirement that speech can only be limited
if there is a "clear and present danger."
We might also notice how thin-skinned so many of America's allies are in controlling free speech
to realize that government action is hardly guaranteed to be just and balanced. Take a few current
examples: journalists critical of the governments of Germany, Hungary, Lithuania, and the
Netherlands are excluded from press conferences; Slovakia refuses to deal with essential media
of the government; and this week, the Israeli Cabinet unanimously barred Al Jazeera from
broadcasting in Israel because of Al Jazeera's alleged anti-Israel bias. Ready acceptance of
government punishment sanctions for engaging in free speech should hardly be a given.

Simply, individual conduct – whether while engaging in civil disobedience, or involved in family
life, neighborhood matters, business affairs, or the myriad of interactions in people's ordinary
lives – ought to be punished adequately and fairly. The fact that the law advertises ahead of time,
extreme severity and harshness in a sentence does not mean that one who engages in that action
ought to face up without compunction and be willing to accept the punishment no matter what.
That attitude may be kind to authoritarian regimes, but it has no place elsewhere.
Those committed to these five putative truths may admit that not all that might incontestably be
true. Still, certainly, punishment is due if there is any intimidation, cowing, or name-calling.
Frightening members of the crowd or merely making them uncomfortable is unfortunate.
However, those committed to this second truth, demand that those doing the frightening or
causing the discomfort must stop as they have crossed the line from speech to menacing.
However, it is particularly and maddeningly idiosyncratic. Mild statements cause anxiety and
fear to some, while harsh and bigoted insults are met with blasé and difference by others.
While it is nice to be nice and nice to have everyone be nice, this so-called truth eviscerates free
speech. Protest speech makes people uncomfortable, calls them out for actions for what they
have done or failed to do, gets personal, and suggests bad motives, hypocrisy, bad faith, immoral
conduct, duplicity, or a shocking lack of empathy for others in those who feel alarmed and
discomforted. They are meant to be made. That is what speech is all about. However, those
engaged in the protests are rarely (actually never) blessed with a Shakespearean expressiveness,
a Gandhian understanding and a Martin Luther King eloquence. They say things that are crude
and blunt. They tend to overstate and insult too readily and often fail to make important moral
distinctions when they accuse others of not acting in the way they would approve.
Welcome to speech. The angry audience cannot be the judge of the disaffected or minority
voices, with their (the crowd's) discomfort (or their hurt or being insulted or anxious) somehow
permitted to censor offending speech. Majorities or even discrete minorities cannot call for the
silence of views at odds with their own. Certainly, majority reviews should not be able to censor
Jews in Nazi Germany, modern Uyghurs in Communist China, or Moslems today in Narendra
Modi's India. It is not that speech cannot hurt, bother, scar, or cause emotional harm; it can and
does. Part of the reason we protect it is its power to do all of that as a side-consequence to what it
must necessarily be asked to do, which is to allow individuals full autonomy of thought and
freedom on the one hand and increase the marketplace of ideas on the other. Put differently, an
audience hearing stupid, hateful, or bigoted speech can respond with their own speech, leave the
speech, ignore the speech, or condemn the speaker. What it can't do is to demand silence.
That brings us to damage to or inference with property interests. Here, property damage is meant
to include not only the destruction of buildings and goods but also infringement on property, that
is, trespass or blocking the street. It is seen as some kind of escalation, more than people's mental
well-being and emotional security; matters thought more important than a flower bed or a
window or a traffic jam, but something remote from the person yet possessed by him or her
according to the laws of the state. Interfering with such property rights is considered to be
outside the bounds of normal civil disobedience, grounds for stopping the show and arresting the
participants, but never, under any circumstances, allowed.

What are we to make such a dramatic prohibition? This, as with so many things, there is property
damage and there is property damage. Consider just a couple of simple examples. One protesting
abortion can block entry to a hospital, delaying access to healthcare, and perhaps creating a delay
that endangers patients' healthcare. One can also block a public right-of way, for example, the
Edmund Pettus Bridge. On Sunday, March 7, 1965, that bridge in Alabama was blocked by civil
rights demonstrators marching from Selma to Montgomery. (Accepting the punishment, that is,
the legal consequences of that action, involved continuing to march in the face of police who
took physical measures against the marchers, including John Lewis. This gave rise to the name
"Bloody Sunday"). Does it matter that the property rights, that is, the rights to move around in
and out of a location in a car, might be different in the first than the second? Would it matter if
traffic was stopped during rush hour in a large city to carry out a protest rooted in a minor
grievance that creates some small risk of additional accidents and perhaps hundreds of
thousands, if not millions, of dollars in lost time? Why is this given different treatment than other
speech?
A second example. Is setting fire to someone's property, perhaps tables and chairs in the entrance
to a building, to be thought of the same way as fire to a flag or conscription records in service to
a war morally indefensible? These are large questions without easy answers, but it seems that, for
some, property damage alone disqualifies civil disobedience. With much of civil disobedience,
the central fact is not always the free speech but the ethics judging the underlying cause.
Demonstrations against war and war crimes, slavery and human trafficking, violations of basic
human rights, and democracy justify greater actions against property rights than issues of
moralism and political differences. Burning books because one disapproves of the content and
burning draft cards because one doesn't believe in waging an aggressive and inhumane war are
not the same thing, and to say they are is to take a morally unjustifiable stance.
Clearly, the issues that swirl around the war in Gaza are significant ones, involving the alleged
deaths (as reported by Hamas) of over 35,000 individuals, the collapse of the healthcare system,
the reported loss of half the housing, the destruction of universities, and alleged imminent wide-
spread starvation. The complexities of that situation – including the justifications based on the
murders, rapes, torture, and kidnappings that triggered Israel's entry into Gaza, the scope of
Israel's response, the bilateral negotiating intransigence, and the long-standing intractable
conflict between the Palestinians and Israel is seen quite differently by various sides, but they are
of the gravest importance. Calling attention to it is the kind of free speech issue that ought to be
valued and protected.
What about misconduct during political speech demonstrations? By definition, when there is
misconduct, it ought to stop and, under the right circumstances and with the right remedies, be
sanctioned. But is every small slip-off or minor act of misconduct grounds for stopping a
political protest or free speech rally? Again, as with almost all moral issues, there are no sharp
corners. We might remember Immanuel Kant's observation as we approach his 300th birthday
this week: "From such crooked timber as humankind is made, nothing entirely straight can be
made." Obviously, political speech that moves, for example, from outrage about a crime to
accusations of guilt, to the inadequacy of the legal system to deal with that guilt, to the necessity
of self-help, to the need for vigilantism, to the mob that storms the prisoner's jail, to the lynch

mob it becomes has made any number of moves away from free speech and toward violent
action. It needs more than confirmation; it needs at some point, presumably earlier rather than
later, to be stopped.
However, nasty speech earlier is rarely lynch mob later. Actions by some but not all, or by all but
only somewhat, cannot – given how groups behave, how emotions grow, how free speech is not
necessarily textured, articulate speech, and how atypically chants (even troublesome, unpleasant,
and even vehement chants) lead to a lynch mob (or arsonist, or other criminal) action – be cause
for shutting protest down, for silencing speech. In another vein, we see terrible situations of war,
aggression, intolerance, and injustice. We should not expect protesters, particularly younger and
less experienced protesters, to get the analysis perfectly right. It is important that they call
attention in a loud and public way to those terrible situations.
The point here is not that safety should be disregarded, violence allowed, or even that the normal
functioning of civil society – whether on campus quads or in public parks or on bridges and
roads – should grind to a halt. Clearly, none of that should occur. However, each of the supposed
truths above are typically stated in unequivocal terms, where any reluctance to accept
punishment, moments of intimidating speech, any affronts to property rights, or any minor
episodes of actual misconduct service cause to shut down free speech protests altogether, and
justify sanctions now and provisions from future such contact later. Yet tempted by these truths,
we see today on campuses that approach by administrators, an approach that is often, like the
speech itself, inconsistent, messy, and at times, ripe for criticism. Such as the way those who are
free in society act and those charged with protecting society need to react.
Finally, there is that ever-present bogeyman, the specter that causes us to be always vigilant and
wary: outside agitators. It is unclear at times what work is supposed to be done by the term
"outside agitated." Is it that they don't belong, they are foreign or at least not neutrals, that they
are bare trespassers or perhaps more egregious trespassers? Is their problematic status owing to
the (alleged) fact that they arrive with more fully formed opinions or opinions that are more
entrenched, harsher, or more settled? If the latter, then we are judging the freedom of speech by
the content of that speech, the antithesis of what the right to free speech implies. Essential to the
notion of free speech, free assembly, and civil disobedience is that they ought to not be judged by
content. That is, thinking someone is wrong or disagreeing with them can not serve as
appropriate grounds for stopping the speech, or there would be no such thing as free speech.
What, then, about their being outside? The logical response to that question is with another
question: why should it matter? If a local group of workers at a facility believe they are being
treated unfairly and want to organize, should it matter that the organization team brought in from
another city or even nationally? If a religious group believes it is being discriminated against,
should other members of that group (or those sympathetic to it) from across the country be
welcome to organize and participate in their protest? If civil rights are being denied in a wide-
spread way, as they were throughout the South during the Civil Rights Movement, should outside
agitators – organizers such as Martin Luther King Jr., Ralph Abernathy, Joseph Lowery, Jesse
Jackson, Julian Bond, Medgar Evers, and A. Phillip Randolph; politicians such as Shirley
Chisholm, Adam Clayton Powell Jr., and Barbara Jordan; entertainers such as Sam Cooke, Dick

Gregory, Ruby Dee, Harry Belafonte, Paul Robeson and Mahalia Jackson; and clergy of all faiths
from around the country – be excluded?
One can speak of the freedom to travel, the freedom to assemble, the freedom of speech, and the
freedom of association as abstract rights that allow insiders, outsiders, and those in between to
participate. But at a more basic level, part of running a fair civil society involves the integration
of leadership and skills throughout communities, regions, and the nation in a complex and
interrelated network. We assume that if local warehouse workers, coffee shop baristas, local
government clerks, or teachers in a suburban school district want to improve their lot, increase
their wages, take charge of their working conditions, shorten their hours, and have better
resources to draw upon now and in retirement. All make use of the expertise of those outside
their local community: the web of national experts, organizers, staff, and unions that will help.
Why, when those others enter the picture, are things worse? Or, worse for who? Why is the
presence of outsiders problematic? We might, in fact, think the assistance and expertise to be
necessary, as we think that this is one country with scattered know-how, yet able for all jointly to
draw upon common and national expertise. We see it in politics, in religion, in education, and
here, in free speech protests. As Dr. King, writing from a Birmingham jail for being civilly
disobedient in service to ending segregation, put it, "We are caught in an inescapable network of
mutuality, tied in a single garment of destiny. Whatever affects a person directly, affects all
indirectly. Never again can we afford to live with the narrow, provincial "outside agitator” idea.
Anyone who lives inside the United States can never be considered an outsider anywhere within
its bounds“.
Perhaps the most celebrated example of an outsider coming in and changing things was that of
Mahatma Gandhi, who, along with thousands of other members of the Congress Party,
transformed and put an end to British colonial rule in India. In an interesting way, Gandhi
demonstrates the falsity of all five of the supposed truths at the beginning of this article. Of
course, he was an outsider as he crisscrossed India (along with others from Congress). He was
given unjustly long sentences for exercising free speech. (In 1922, he was sentenced to six years
in prison for basically advocating Indian independence).
As to the indigo action in Champaran (the Champaran Satyagraha) by Gandhi, those who grew
indigo were tens of thousands of indentured laborers and impoverished farmers who were
required to grow only the cash crop of indigo in the Champaran region, instead of the food
necessary for their survival. Further, prices for indigo were fixed and, relative to inflation,
dropped, causing those working the land to receive an extremely low price. This led to wide-
spread starvation and death and eventually to massive revolts. Gandhi learned of this as a distant
outsider. As he said in his Autobiography:
"I must confess that I did not then know even the name, much less the geographical position, of
Champaran, and I had hardly any notion of indigo plantations. I had seen packets of indigo, but
little dreamed that it was grown and manufactured in Champaran at great hardship to thousands
of agriculturalists. . . . The Secretary of the Planters’ Association told me plainly that I was an
outsider and that I had no business to come between the planters and their tenants, but if I had
any representation, I might submit it in writing. I plainly told him that I did not regard myself as

an outsider, and that I had every right to inquire into the condition of the tenants if they desire me
to do so”.
Gandhi's increasingly successful efforts in organizing impoverished laborers and farmers resulted
in his arrest. It came about as a result of his disobedience to an order to leave the district. Again,
as he wrote in his Autobiography, quoting from his own closing statement to the court:
"It is my firm belief that in the complex constitution under which we are living, the only safe and
honorable course, for a self-respecting man is, in the circumstances such as face me, to do what I
have decided to do, that is, to submit without protest to the penalty of disobedience. I venture to
make this statement not in any way in extenuation of the penalty to be awarded against me, but
to show that I have disregarded the order served upon me not for want of respect to lawful
authority, but in obedience to the higher law of our being, the voice of conscience".
We must do more than respect this sentiment. We must treasure it.