Free Speech

by Cokato Minnesota attorney Thomas James

“There’s a time when the operation of the machine becomes so odious — makes you so sick at heart — that you can’t take part. You can’t even passively take part. And you’ve got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus, and you’ve got to make it stop. And you’ve got to indicate to the people who run it, to the people who own it, that unless you’re free, the machine will be prevented from working at all.”

— Mario Savio (speech in Sproul Plaza, U.C. Berkeley, December 2, 1964)

The Free Speech Movement

In 1964, some University of California - Berkeley students set up an information table on campus to educate students and ask for donations to support the Civil Rights Movement and related causes. At the time, only members of the Democratic and Republican parties were allowed to do that.

In September that year, University dean Katherine Towle announced there would be a strictly-enforced ban on all political speech and fundraising on campus. The following month, Jack Weinberg personned the table that had been set up to distribute literature supporting the Civil Rights Movement. Continuing to operate the table was in direct defiance of Ms. Towle’s edict. Campus police arrested him and put him in their squad car with the intention of taking him to jail.

They could not have expected what came next.

Hundreds, and then thousands of students, surrounded the squad car in which Mr. Weinberg sat. It remained there for over a day, Mr. Weinberg patiently sitting in it all the while. Student leaders took turns climbing on top of the car, using it as a speaker’s podium. The Free Speech Movement was born.

The change came

The Free Speech Movement succeeded. In the ensuing years, the U.C. Berkeley campus became a haven for free speech. A walk through Sproul Plaza in the 1970’s and 1980’s meant making your way past dozens of information tables representing a range of ideas and causes that could not have been more diverse. Not only did the Democratic and Republican parties have their tables, but members of the Peace and Freedom party set up a table there, too. Even the Socialist Workers Party had a table. Army representatives set up a recruiting table next to a nuclear disarmament table. The UFW and people opposing South African apartheid were there, as were Moonies, Hare Krishnas, the lovably vitriolic, Bible-banging preacher Holy Hubert, and the atheistic “I hate you” guy (aka “Hate Man.”)

Berkeley finally became what universities should have been all along, a haven for the unrestricted exploration of ideas. It was all made possible by — and only by — a relentless, unapologetic fight for unfettered rights of freedom of thought and expression.

The change went

In 2017, conservative speaker Milo Yiannopoulos came to the U.C. Berkeley campus to give a talk. This time, students turned out en masse in Sproul Plaza not to demand respect for freedom of speech but to demand the university take action to deny it. People calling themselves “anti-fascists” showed up to start fires and physically assault anyone they suspected might be a conservative fellow-traveler or sympathizer.

“I’m so sick of the words free speech,” a Berkeley student complained at the time.

Anti-free-speech events and crimes took place on other campuses and venues across the country, too. Today, there are people who maintain that merely uttering the phrase free speech is a microaggression, like the word meritocracy, for which students should be suspended or expelled and professors should be terminated or denied tenure. A young college graduate recently tried to educate me on this. “Free speech is code for hate speech,” she said matter-of-factly.

The anti-free-speech movement, however, is not limited to Milo Yiannopoulos. It targets conservative speakers in general, such as anyone who, like law professor Josh Blackman, has addressed or participated in a Federalist Society event. Sometimes it even targets a liberal speaker, as retiring ACLU attorney Claire Guthrie Gastañaga learned when she attempted to give a talk on freedom of speech at the College of William and Mary.

“Free speech for me but not for thee”

Having relatives and ancestors who were imprisoned and worse for holding minority religious views, it pains me to hear people casually dismissing the rights to freedom of thought and expression. Seeing mobs of university faculty members and students — all presumably very well educated — demanding totalitarian restrictions on fellow citizens stirs up feelings so deep within me that I cannot even begin to put them into words. I cling to the belief, however, that most people are still at least potentially rational beings. Accordingly, I have to believe that people who speak against the right to speak don’t really mean it; I have to believe they simply haven’t learned to communicate their meaning clearly.

It should go without saying that anyone who exercises their right to say what they want cannot simultaneously be opposed to freedom of speech. If you are opposed to freedom of speech, then you will need to concede that you have no right to complain if you are locked in a prison cell or if someone calling himself an “anti-fascist” sends you to the hospital with a bashed-in skull and permanent brain damage if you try to express either support or opposition to freedom of speech.

The principle of free speech is what gives you the right to say what you are thinking or feeling. It is what gives you the right to express the idea or feeling that you are “sick of free speech.” A principle cannot simultaneously be both true and false, both valid and invalid.

The right to dissent

To respect other people’s freedoms of thought and expression is not the equivalent of being required to agree with them.

Let me say that again:

Respecting other people’s freedoms of thought and expression does not mean you have to agree with them.

No one told Berkeley students they were required to agree with Mr. Yiannopoulos’s views. No one tells people they have to agree with Professor Josh Blackman’s views or with ACLU attorney Claire Guthrie Gastañaga’s views.

As far as I know, no one has told university students who disagree with someone that they must keep their disagreement to themselves. Freedom of speech does not mean freedom from having anyone disagree with you.

It also does not mean freedom from people having emotional reactions to what you say. Being free to deny the Holocaust ever occurred, for example, does not mean that you have a right to prevent people from publishing emotional responses to your claim or holding signs outside the building where you are speaking asserting that you are wrong.


I had planned to write a lot more here. I was going to cover the difference between a restriction imposed by a state actor (such as a University official) and a restriction imposed by the owner of a privately-owned venue. I was going to talk at length about a so-called “right to be comfortable.” I was going to talk about the difference between the right to be free from a prior restraint on speech and the right to be free from responsibility for the consequences of knowingly using false statements to destroy an individual’s reputation. I was going to explain the difference between yelling “Fire” in a crowded theater and publishing an article expressing the view that many theaters are fire hazards. And so on. I don’t want to turn a blog post into a book, though.

Maybe I will cover those topics in future posts. For now, I will just conclude with this:

The best answer to a bad argument is a better one. U.C. Berkeley administrators understood this idea during the period when it was a haven for free thought. For example, when they invited a creationist to speak on campus, they also invited an evolutionary biologist to speak. It was a beautiful thing to witness: First, the creationist laid out the grounds for his views. Then the evolutionary biologist laid out the grounds for his views. The evening ended with both of them fielding questions from students. Although many students had strongly-held views on the matter, no one tried to burn down the building. No one pulled a fire alarm. No one bashed students’ heads in with baseball bats if they tried to attend. Nobody died. Nobody was traumatized.

People learned.



Thomas James is a Cokato Minnesota attorney also known as Tom James

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Thomas B James

Thomas James is a Cokato Minnesota attorney also known as Tom James