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naraburns  nihil supernum  1yr ago (text post)   34926 thread views

Culture War Roundup for the week of March 13, 2023

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The 1A doesn’t come into it at all.

The broader right of free speech, yeah, it’s good practice. In a golden-rule sense we can argue that the privilege of the strong (or loud) ought to be limited. “There but for the grace of God go I.” This is not up to the 1A, which only keeps the government from infringing, and even then only to a point. It’s not obligated to secure your platform for commercial or private speech.

Yes, but institutions of higher learning which accept government dollars in various ways can be compelled to accept federal standards on various things. This is how Title IX works, for example. It would be a trivial dodge around the IA if the government could, instead of itself paying bullies and thugs to break the outgroup's kneecaps, get away with only providing "fellowship grants" to social clubs that, in addition to pot-luck lunches on Thursdays, also went around breaking the outgroup's kneecaps.

So what if a corporation released noise pollution. So other people can’t speak. That noise pollution is 1A protected Speech correct so the government can’t block it. Which means there is no free speech.

A freedom of speech seem to include a freedom to hear (ie to have effective communications). Without a freedom to hear then you can’t have free speech.

The exact hypothetical would be the Koch brothers hating Yale so they shutdown Yale with giant noise machines. This is essentially what Stanford allowed to happen to the judge.

The government is perfectly allowed to regulate noise pollution. That’s mostly for the other rights like life, liberty and happiness, I suppose, so the hypothetical isn’t a very good fit.

More importantly, there is a difference between positive and negative actions. Stanford is not obligated to make a welcoming channel for any particular idea. It’s merely prevented from clogging those channels itself.

I think there’d be a case if Stanford actively set up the interference as viewpoint discrimination. This gets thorny very quickly when separating private speech from employee speech from public speech. Perhaps the DEI Dean’s involvement counts, and we’ll see a lawsuit accordingly.

I mean invading another groups space and yelling so they can’t speak sounds exactly like noise pollution to me.

So the Koch brothers could just blast I love Jesus outside of Yale and that’s Speech right?

If Incorporation Doctrine can bind states by the provisions intended to bind only the federal government, why can't it also bind other subjects of fedeal law?

I say, Incorporate the First, against Facebook!

I realize you’re being hyperbolic, but incorporation is based on protecting due process. Forcing that to apply to private companies or individuals would be a huge jump and, in turn, violate freedom of association.

It would probably take a tiring effortpost to correct my misunderstanding here, but don't the Education Amendments of 1972 (most famously Title IX) mean the federal gov is treating universities as an extension of government institutions because they receive public funding, and thus must respect constitutional rights?

Yes and no.

I want to say @KMC is right and public universities have been nationalized for free speech purposes. This might apply to Stanford should they suppress speech, but I wouldn’t expect it to obligate giving Judge Duncan a platform. In general, the 1A doesn’t say what must be provided, only what must not be infringed.

The other flies in the ointment are all the caveats like “compelling interest.” Basically, free speech usually only holds until a wannabe restrictor finds another conflicting right to protect. Here that would be the students’ and employees’ speech rights, I guess?

I won’t rule out the possibility that someone has a case here, but it’s not really what I’d expect to see.

Thank you. This was my understanding as well. The way that the federal government requires private universities to adhere to the Civil Rights Act is by tying those requirements to federal dollars. The scope of what is covered by federal dollars has increased such that any institution that receives any federal money for anything is fully liable to comply, but that also means that it is the federal government who is acting, not the private institution, and thus the bill of rights does apply.

So what’s the next step? This federal judge or students could sue Stanford for violating their civil rights?

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