The right to disagree matters

NICK EICHER, HOST: Coming up next on The World and Everything in It: Free speech on campus.

As we know, speech rights and obligations can be complicated. Private universities are facing legal questions that are different from the questions government institutions face. It’s difficult to know what’s protected and what’s not.

MARY REICHARD, HOST: Joining us now to help sort it out is Tyson Langhofer. He serves as senior counsel and director of the Center for Academic Freedom with Alliance Defending Freedom.

Tyson, good morning.

TYSON LANGHOFER, GUEST: Hey, good morning. Thanks for having me.

REICHARD: Glad you’re here. Well, let’s start with the baseline. What is the legal definition of hate speech?

LANGHOFER: There actually isn't a legal definition of hate speech, which is what really creates the problem in First Amendment context, because what might be hateful to one person may not be hateful to another person. And so we have taken the approach in America to have a very broad protection of speech so that the government doesn't get to define whose speech they think is hateful and thus prohibited and whose speech they think is okay and thus not prohibited.

EICHER: Okay, so going beyond the legal definitions which don't exist, are there uniform policies about hate speech on college campuses? Or is this just an ad hoc kind of case by case thing?

LANGHOFER: It is an ad hoc case by case thing, which is what creates the problem. So what the Supreme Court has said is that the government cannot look to the content or the viewpoint of somebody’s speech in order to prohibit that speech. And so when a government official looks at somebody's speech and says, “Well, that viewpoint is hateful, therefore, I'm going to prohibit it”, the government or the Supreme Court has said that that is unconstitutional. And so what you see is there is no uniformity across the college campuses, because it is a subjective determination, which is what the Supreme Court has said the First Amendment prohibits.

REICHARD: You know, we've heard the chants "from the river to the sea, Palestine will be free" from those who are supporting Hamas, meaning Palestinian control over the entire territory of Israel's borders, from the Jordan River to the Mediterranean Sea. Now, some say that is not anti-semitic, it's only anti-zionist, Tyson, what do you make of that argument?

LANGHOFER: Well, I mean, I think that if you're advocating for the complete annihilation of a people group from a certain, you know, country, that that makes it difficult to argue that, you know, your that your argument against simply a country as opposed to, to a people group. But I mean, I think that the debate that we're having here, about what type of rhetoric that we can engage in, in a very, very politicized and highly inflammatory environment, is the very debate that the First Amendment is designed  to protect. And what the Supreme Court has said, is that the highest principle of our First Amendment jurisprudence is to protect the thought that we hate. But I think that's what our First Amendment calls us to, is to protect those things. Now, obviously, there are certain limits. So if there are people calling for imminent violence against anyone, regardless of who they are, that's not protected. But if they're arguing in general for broader principles, then that is protected, even if we think that principle is hateful or wrong.

EICHER: So maybe that's the way to do it, because I intended to ask, how do you sort of make that balance between protecting free speech but also condemning ideas that justify abhorrent action? So that's the line whether it's sort of inciting or how do you make that distinction?

LANGHOFER: That's absolutely the line as the Supreme Court has drawn it. They've said there's there's very narrow areas that are unprotected speech, one of them would be a true threat. So if I'm threatening somebody in the moment and saying, I'm going to commit some act of violence against you that's not protected, you know, actually engaging or encouraging people to go engage in imminent violence that's also not protected, but advocating for principles that might lead people in the future to take some acts which are unlawful, that is protected. And that's sort of the line that we've drawn. And I think it's really important to understand that if you have a conservative originalist view of the Constitution, you have to understand that it is going to require us to allow people to say things that we vehemently disagree with, that we think are wrong and immoral, but that also protects us as Christians to engage in speech that we believe is consistent with our biblical worldview, that many people would say it is hateful or shouldn't be protected as well.

REICHARD: I have to ask this question: why are some of our most prestigious campuses inundated with these pro Hamas views? What's going on?

LANGHOFER: Well, I think when you see that they have been taught this the issue of of critical theory, where everything is intersectional. And and it's all about who we deem as the bigger victim. And there's not a broader justice, there's not an absolute, that's it's the victim, and it's based upon identity rather than actual actions. And I think that has led them to stop looking at the actual facts on the ground, and just looking at whose identity do we believe is more oppressed? And in that, in that framework, I then determine who is the victim and who we should be supporting, as opposed to looking at it broader, what is the truth of the situation, and what is just in this situation, regardless of what their identities are? Everybody should be, you know, advocating for a just result, regardless of the identity of the individual who's being victimized.

EICHER: Tyson, I know you've been paying very careful attention to this for many years. What is your assessment of what's missing from the conversation about free speech and mitigating harm on campus? What's missing?

LANGHOFER: Yeah, I think what's missing is this. There's a large and growing portion of campus which is advocating for social justice. And we want justice as well as Christians, we desire justice. But what they don't understand is that you cannot achieve justice without obtaining the truth. What is the truth, truth and justice are inextricably linked. We must arrive at truth and then we can get the justice and everybody I think can agree we want a just society. But shutting down certain viewpoints is not going to get us to truth. And it's not going to get us to justice. And I think that's what's missing is this ability to to engage with people that we very, very much disagree with, but to do it in a way that where it's a dialectic rather than a debate, right? It's the ability to learn and to listen to the other side, and explore what they're saying. All right, at the same time, of being able to give them your viewpoint and recognize they're both created an image of God and that they're both we all have that inherent human dignity and we should respect them as a person, even if we disagree with their viewpoint.

REICHARD: Tyson Langhofer serves as senior counsel for the Alliance Defending Freedom. Thanks for joining us!

LANGHOFER: Thank you for having me.

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