Most people support free speech in the abstract. But give them a tough case, and they'll strain to find a rationale for an exception.
Why? I think it's largely cognitive dissonance. Many people simply aren't comfortable with the notion that we should protect the right of others to say things we hate. They feel, in their gut, that if we're fighting for someone's rights, they had better be sympathetic. They don't like defending hateful people, and feel on some level that if we're supporting the right to say something, we can't also hate that something. It's the same phenomenon that softens support for the rights of criminal defendants in specific situations, however much people might agree in the abstract that people accused of a crime should have rights.
But there's absolutely nothing wrong with simultaneously holding someone in complete contempt for their speech and defending that speech from censorship.
In that spirit, I give you Evan S. Cohen and his daughter, "J.C."
J.C. goes to Beverly Vista High School in Beverly Hills, California. One day, while off campus, J.C. filmed some of her friends ragging on another girl, encouraged them to talk trash about the girl, then posted the resulting video on YouTube. Here's how Judge Stephen V. Wilson, United States District Judge for the Central District of California, described it:
While at the restaurant, Plaintiff recorded a four-minute and thirty-six second video of her friends talking. (PSUF 7.) The video was recorded on Plaintiff’s personal video-recording device. (Id.) The video shows Plaintiff’s friends talking about a classmate of
theirs, C.C. (PSUF 8.) One of Plaintiff’s friends, R.S., calls C.C. a “slut,” says that C.C. is “spoiled,” talks about “boners,” and uses
profanity during the recording. (Defendants’ Statement of Uncontroverted Facts in Support of Defendants’ Motion for Summary
Adjudication [“DSUF”] 7; Declaration of J.C. in Support of Pl.’s Mot. For Summ. Adjudication [“J.C. Supporting Decl.”], Exh. 1 [YouTube
video].) R.S. also says that C.C. is “the ugliest piece of shit I’ve ever seen in my whole life.” (J.C. Supporting Decl., Exh. 1 [YouTube
video].) During the video, J.C. is heard encouraging R.S. to continue to talk about C.C., telling her to “continue with the Carina rant.”
In other words, J.C. acted like a Mean Girl the way teen girls probably always have. The impact of her loutish and classless behavior was enhanced by modern technology. A number of her classmates viewed her rant against C.C.
The victim of J.C.'s rant complained to administrators at Beverly Vista High School, who suspended J.C. for two days. J.C., represented by her father Evan S. Cohen (a Los Angeles entertainment lawyer with a web site possibly designed by an eight-year-old), sued for violation of her First Amendment rights. J.C. argued that the school had no business disciplining her for speech that occurred entirely off campus.
And she was right. Judge Wilson (who is a bit of a Mean Girl himself, in my experience) granted summary judgment in her favor. Judge Wilson rejected J.C.'s argument that off-campus speech is by definition beyond school regulation, finding that off-campus speech that causes substantial on-campus disruption can be subject to official punishment. However, Judge Wilson also found that the evidence was insufficient to show that J.C.'s speech either causes or threatened substantial disruption, the relevant inquiry under Tinker. J.C. won, and won her father's attorney fees and costs — more than $100,000.
Judge Wilson was right in the result, if not in all of his analysis. Student free speech rights are under assault. The Supreme Court has retreated from the high-water-mark of speech protection under Tinker. Gestures towards criminalizing bullying and "cyberbullying" are in fashion. Schools — in part because they fear being sued for failure to prevent harassment, and in part out of hostility towards unpopular speech — are increasingly aggressive in using a broad, vague, and unprincipled definition of "disruption" to justify censorship. If schools can punish off-campus conduct without (at least) a rigorous and principled analysis of whether the speech caused material on-campus disruption, then schools will have alarmingly broad discretion to censor unpopular viewpoints.
It's a good thing that J.C. won.
But that doesn't mean we can't, or shouldn't, hold J.C. and her father Evan S. Cohen in contempt. Here's a glimpse into Mr. Cohen's parenting skills and sense of humanity:
The lesson Mr. Cohen hopes his daughter learns from the case is about the limits on governmental intrusion. “A girl came to school who was upset by something she saw on the Internet,” Mr. Cohen said in a telephone interview, “and these people had in their mind that they were going to do something about it. The school doesn’t have that kind of power. It’s up to the parents to discipline their child.”
He did chastise his daughter, saying, “That wasn’t a nice thing to do.”
He describes her video as “relentlessly juvenile,” but not an example of cyberbullying, which he said he did not condone. His daughter offered to remove it from YouTube. But Mr. Cohen keeps it posted, he said, “as a public service” so viewers can see “what kids get suspended for in Beverly Hills.”
Yes. Mr. Cohen deliberately keeps his daughter's video — in which she gleefully describes another teen classmate as an ugly slut and encourages friends to bash her — posted on the internet, to show what a free speech hero he is. Mr. Cohen thinks the most important lesson his daughter can learn is not about acting like a decent person (as opposed to a teenager and a bully), but about free speech law. From this we can learn a great deal about Mr. Cohen's character, and the sort of human being his daughter is likely to become with him as a parent. Rejoice — your kids will be out in the world with her.
Embrace the cognitive dissonance. It's perfectly all right to believe simultaneously that Judge Wilson reached the right result and that Evan S. Cohen is a smug and unlikeable douche raising a child to be a sociopath. It's perfectly OK to think that most decent human beings would have decided that the more important lesson to J.C. would have been to punish her for a cruel attempt to humiliate a classmate, and that choosing to vindicate her First Amendment rights instead is pathological. By analogy to another famous Cohen, you can support the right to wear a jacket saying "Fuck the Draft" and still think the wearer is an attention-seeking twerp. Support student free speech rights. It doesn't mean you support the low character of people like J.C. and Evan S. Cohen.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016