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Nicholas Jacskon Doesn't Want To Put Up With Your Bullshit. But You Should Put Up With His.

Law, Politics & Current Events

Today, when Jason Collins became the first openly gay NBA player, some people were predictably annoyed. One of them was ESPN's Chris Broussard, a lout:

"I'm a Christian. I don't agree with homosexuality," Broussard said. "I think it's a sin, as I think all sex outside of marriage between a man and a woman is.

"If you're openly living in unrepentant sin … that's walking in open rebellion to God and to Jesus Christ," he added.

Yeah, Jason Collins is really bringing down the high moral tone of the NBA.

Chris Broussard is a dinosaur snarling at the oncoming asteroid. Even opposition to gay marriage is doomed in the long term, let alone dwindling opposition to gays and lesbians living openly. If they are angered by people like Jason Collins, Broussard and his ilk are destined for lives of increasingly marginalized bitterness and resentment.

But that's not enough for some who think Chris Broussard's views should be suppressed by force of law. For instance, over at Pacific Standard, Nicholas Jackson uses Chris Broussard as an opportunity to call for censorship and be thoroughly wrong about free speech and the First Amendment. It's typical for people to react to obnoxious speech by waving their arms and proclaiming vaguely there oughta be a law; that's banal. Jackson distinguishes himself by asserting authority and then promoting disinformation about the law, all in the service of an argument that the law should prohibit Broussard's speech.

What authority, you might ask? Authority as a journalist:

It’s the blanket free speech argument. (And I know that argument well. As a wildly conservative—this is back in the jingo days before I came out, when I was using the near-lethal combination of pen and temper to shield my own personal insecurities—high school student, I wrote a number of columns for the student newspaper and regional publications in the Chicago area on this subject.) But the blanket free speech argument is a weak one. Any journalist knows that. After a basic media ethics class (the easy way) or a handful of frightening emails from a subject (the hard way), you’ll know a thing or two about libel and slander.

Jackson relies upon his journalist's experience to tell us that the Supreme Court has many restrictions on free speech, and has been cutting back on the First Amendment.

There’s also, of course, obscenity, child pornography, incitement, false or misleading advertising (all commercial speech is subject to limited protection), and speech owned by others (this is where trademarks and copyright issues come into play). Over the years, the U.S. Supreme Court has tightened the definition of free speech over and over again.

Therefore, Jackson suggests, the "fighting words" doctrine should just be expanded a bit to prohibit words like Broussards'.

Jackson's just flat-out wrong.

First, Jackson's censorious fantasies aside, the Supreme Court has been expanding free speech rights for a half-century, not "tightening" them. With very few context-specific exceptions — like speech at schools — the Supreme Court has used every opportunity to reject the argument that the First Amendment permits suppression of speech because it's "offensive." In doing so, the Court has relentlessly rejected attempts to expand — or even apply — the "fighting words" doctrine. The Court said it wasn't fighting words to wear a jacket with the words "Fuck the Draft." The Court Court held Jerry Falwell couldn't recover for the humiliation of a Hustler ad parody suggesting he lost his virginity to his mother in an outhouse, "fighting words" doctrine or not. The Court overturned flag burning laws, rejecting the argument that flag-burning constitutes "fighting words." The Court found a broad hate speech law to be unconstitutional, noting that the "fighting words" doctrine could not be applied selectively to disfavored speech. And, as Jackson concedes, the Supreme Court rejected — by an 8 to 1 margin — the argument that Fred Phelps' douchebaggery constitutes "fighting words" just because it causes emotional pain.

Nor has the Court been willing to carve out new exceptions to the First Amendment. The Court refused to create a new First Amendment exception for lies about military credentials. It refused to create a new exception for depictions of animal abuse.

In short, the "fighting words" doctrine is dying. It's quite rare to see it used to justify censorship. What Nicholas Jackson is asking for is not the minor tweak to current doctrine that he suggests, but a wholesale reversal of fifty years of free speech precedent. Why does he think we should do that?

Now, as a 25-year-old, I appreciate those restrictions [on speech], because, frankly, I don’t want to listen to your bullshit.

Oh, Nicholas. Believe me when I understand that I get that right now. But it's not enough. My right to free speech depends on the free speech of people like Broussard. If you think that that's just a rhetorical flourish, let me remind you of Nicholas' own words:

After a couple of years in which we’ve seen dozens of studies—LGBT youth who are bullied are far more likely to consider and commit suicide; acceptance from family and friends minimizes risk—and a similar number of deaths, Broussard’s words, and the arguments by otherwise reasonable people that they should be protected by free speech, are no longer acceptable. They’re fighting words. [emphasis added]

Yes: not talking out of your ass when you discuss the First Amendment is now hate speech, according to Jackson.

Broussard's team is losing, or has lost. Their traditional argument — that homosexuality is evil, and dirty, and icky, and morally objectionable to decent people — is no longer palatable to most people, let alone convincing. Therefore their strategy has shifted. More and more, the public argument against gay marriage is not that it's morally wrong, but that expanding gay rights will necessarily lead to fewer rights for everyone else. We're told that recognizing the equal rights of gays and lesbians will lead to suppression of freedom of speech and religion.

I don't think that's a winning argument long-term. But people like Nicholas Jackson do their best to make it seem plausible.

Nicholas Jackson is a useful idiot for the anti-gay right.

Edited to add: My good friend Clark has a critique of my treatment of Broussard, and I have a partial response.

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