Drawing a Line   Leave a comment

UCSA President Victor Sanchez and A.S. Vice President of External Affairs Gracelynne West are clowns and I’m disappointed that the UCSD BSU leadership is working with them on UC legislation that would ban hate speech, with aspirations to make it federal law. Sanchez and West’s inexplicable disrespect for freedom of speech combined with The Guardian’s poorly-written article on their intentions are difficult to understand, but I will focus on narrow and arrogant minds behind this legislation and try to slice through the tangled mess. These people, including the BSU leadership, have crossed the line.

There are people within the UC system trying to draft a bill that will ban what’s being referred to as “hate speech”, which is not crisply defined, but includes racial slurs and nooses. The plan of action is to get the legislation passed for the UC, expand it to the CSU and California Community College system, and then to make it national law. Drawing a quote from Sanchez, this is the clearest picture of what this bill might do:

“The legislation would focus on banning both hate speech — such as [student newspaper] the Koala — and hate acts such as the hateful historical use of objects, like hanging a noose.”

As an appetizer, singling out the Koala as a target in a public statement has Sanchez flirting with a bill of attainder, which is unconstitutional. And then there’s the blatant violation of the First Amendment. The following are the Constitutional limits on freedom of speech: libel, slander, (sexual) obscenity, and fighting words. From the Supreme Court, we had the clear and present danger test (“Fire!” in a crowded theatre) and since Brandenburg v. Ohio, we have the imminent lawless action test. In order for hate speech to lose its First Amendment protection, the speaker would have to call for illegal action that is that is “both imminent and likely”. A racial inciter would have to make a threat intended to be carried out within a small time frame with good reason to believe it will actually happen. This presents major problems for any such legislation as Sanchez, West, and the BSU have proposed.

The ACLU has their head on strait on this one, as articulated by San Diego ACLU member David Blair-Loy.

“Racial slurs and epithets and hate speech don’t qualify as true threats,” he explains. “It’s offensive, it’s degrading, but it is unconstitutional to make it illegal.”

One event that seems to be a major basis for this legislation is the Geisel noose incident. Hanging a noose with intent to terrorize is a crime in California. That being said, the noose hanger came forward and said it was a mindless and innocent act absent any intent to terrorize. There’s nothing wrong with wanting to stop people from making threats and terrorizing, but it’s illogical to use an event in which no terror and no threat was intended to make this point. There is also a puzzling redundancy in banning an action from the UC that is already a crime. This is like if I were to say, “murder is already a crime, but we should draft legislation to ban murder from the UC.” Does the law not apply on campus or something? I can’t think of a better alternative than attention seeking to explain the goal of banning what’s already a crime from the UC.

The noose-related issues behind us, let us turn our attention to the banning of actual “hate speech”.

Who gets to define what constitutes “hate speech” is unclear, and puts all students at risk of punishment for any expression of dislike. Let’s take it to mean “any speech, gesture or conduct, writing, or display which is forbidden because it may incite violence or prejudicial action against or by a protected individual or group, or because it disparages or intimidates a protected individual or group.” It is unconstitutional to ban this type of speech- the Supreme Court says so. But that’s not even being debated by Sanchez and West. They know hate speech is constitutionally protected and are trying to go around Supreme Court precedent in order to restrict the rights of students. Supreme Court precedent gets overturned sometimes, but it probably won’t happen this time in order to take away rights from citizens. Here’s Sanchez:

“We looked at the existing law and began writing the essential components in a way that we hope won’t mess with the First Amendment.”

Having the goal of not “mess(ing) with the First Amendment” puts you in trouble from the start. It’s like saying, “We’re building a roller coaster, and we’re hoping the essential components are designed in a way that won’t get a lot of people killed.” Not killing people shouldn’t be the main obstacle facing your envisioned roller coaster, and not violating the First Amendment shouldn’t be your biggest problem when you’re drafting a law. What Sanchez is saying is that he hopes to ban hate speech and he knows that there are First Amendment protections in place, so he is trying to subvert them. I’m not riding Sanchez’s roller coaster.

The Guardian adds that “Sanchez said he is confident the bill would not violate the First Amendment.” He must be an exceptionally clever guy, because I don’t see how you can ban hate speech (which is unconstitutional) and not violate the Constitution. We call that a contradiction. I can’t eat a steak burrito and not eat any meat and Sanchez doesn’t quite explain how he’s going to take the meat out of his unconstitutional burrito. He and West know they are infringing freedom of speech, and do not care. Quote, the Guardian, “West said Yudof and the regents were supportive of the legislation, but stressed that the language needed to be revised to prevent it from breaching the First Amendment.” They produced a version of this unconstitutional bill that violates my freedom of speech. So what does West have to say about that?

“We’ve been told that the way it’s worded now, it’s not going to pass, and the way we worded it, it can’t be pushed through,” she said. “We’re working on editing and strengthening the legislation.”

She’s working on strengthening the legislation. If you’re trying to make a rule, but that rule is agreed upon by authorities to be unfair, do you strengthen your new version of that rule? Perhaps what West meant by “strengthening” was to fortify it from the Constitution by not violating students’ Constitutional rights, but I hope she understands that the only way to strengthen this bill is to weaken it. To weaken it to the point where it has no power to punish free expression. The teeth of this bill are a danger to all students who have no control of the definition of hate speech as it threatens to take a bite out of their freedom of speech. Sanchez and West are ignoring that speech codes are routinely struck down by the courts, and that the UC is a public university, which is public property, which means freedom of speech must be upheld. Whose university? Not those who respect freedom of speech if this legislation is pushed through.


Posted April 18, 2010 by Wada in Compton Cookout, UCSD

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