Two weeks ago, a demonstration in support of Supreme Court nominee (now Justice) Brett Kavanaugh at the University of Texas at Austin was met with not only opposition but also some pushing and shoving. UT is far from the only school to witness such confrontations. Even the First Amendment, it would seem, has become a political issue.
It has, and it hasn’t.
It is political in the highest sense of the word, as voiced by Aristotle, who famously labeled human beings “political animals.” By this he means that for us, political activity is essential to our flourishing. We perfect a part of our nature when we use our reason to discover and then persuade our fellow citizens of what is advantageous, just, and good for the political community. In this sense, the First Amendment is decidedly political.
On the other hand—and more importantly, given the current national debate—the First Amendment is notpolitical in the lower sense of the word—as narrow, partisan advocacy. Instead, the First Amendment is the preconditionof all partisan advocacy, the indispensable means to ensuring that all of us, be we in the majority or minority, have a fair chance to speak and be heard by those who want to hear us.
In short, we all need the First Amendment. We all need legal protection of our right to question and debate, without which democracy declines into stagnancy. Therefore, we need to recognize that, even when we are in the majority, it is in our long-term interest to afford minority voices the same freedom to speak as we enjoy. This is no small task, especially when the opinions confronting us are, in our view, “hateful.” But the U.S. Supreme Court has ruled consistently that even “hate speech” is protected by the First Amendment.
That’s why we should be heartened by the UT administration’s response to this confrontation. UT reminded students and faculty that the “free speech of UT community members is fully protected on campus” and it condemned “violence and threats” that undermine free speech. Students were informed by the administration that they “are able to discuss, argue and condemn those views you disagree with, but unwelcome physical contact with those who espouse them or the destruction of property is never acceptable.”
Higher education depends on free speech no less—indeed, more—than American democracy does. To fulfill their teaching and learning missions, university campuses should be the most tolerant places in America. The late University of Chicago president, Robert Maynard Hutchins, said it best: “Freedom of inquiry, freedom of discussion, and freedom of teaching—without these a university cannot exist.”
Alexis de Tocqueville, author of Democracy in America, hoped that higher education would serve as a needed bulwark against democratic levelling. However, he worried that, in the democratic United States, the “passion for equality” could come to absorb all other principles and pursuits. This is part of what we are experiencing in these campus conflicts today. Equality is threatened, says the Social-Justice Left, by individual freedom—in this case, the freedom of individuals to speak and disagree.
As the left-wing professors’ union, the American Association of University Professors (AAUP), put it recently: Legislation to protect the First Amendment on campus “is a political agenda masquerading behind ‘free speech.’”
Fortunately for our country, the freedom-versus-equality dichotomy is false. We see this clearly when we reflect on the role the First Amendment played in advancing the cause of black civil rights in the 1950s and ‘60s.
In 1960, nine African-American students at Alabama State College participated in a sit-in at a segregated cafe in the Montgomery County Courthouse. The restaurant refused to serve them, and ordered them to leave. As reported, “When Alabama State College learned of the students’ actions, it summarily expelled them without notice or hearing. The case was Dixon v. Alabama State Board of Education (1961). When the students appealed, a federal court ruled in their favor, holding that state universities have to obey constitutional restrictions. This was the first time due process rights of students were recognized judicially.
Two years later, in Edwards v. South Carolina (1963), the Supreme Court struck down the breach-of-the-peace convictions of 187 African-American students who had marched to the South Carolina statehouse to protest segregation. The Court ruled that the arrests violated the students’ First Amendment rights to freedom of assembly and petition.
Most important, the Court in Edwards stressed that government could not criminalize the “peaceful expression of unpopular views.”
“The First Amendment right of assembly was the foundation of the civil rights movement of the 1950s,” writes Western Kentucky University professor Linda Lumsden.
There’s something else the First Amendment has achieved; it has codified good manners—in that it balances the rights of competing sides. That is, under the First Amendment, protesters are free to protest, and invited speakers are free to speak to those who invited them. For both sides to enjoy the full expression of their rights, a little space should be put between the two. They ought not to take place at the same time and in the same place.
This civilizing aspect of the First Amendment—“Wait your proper turn to speak”—should be unobjectionable to all sides. That it is not is a sign of our political and moral fractiousness. Instead, it’s all the more reason to reacquaint ourselves with the basis for the First Amendment and why we all need it.