OPINION: Students, politicians reveal ignorance of 1A constitutional rights

Ken Tashjy served as General Counsel for the Massachusetts Community College System for over 21 years and currently serves as a higher education attorney and consultant. He has taught as an adjunct instructor at Suffolk University since 2008, and previously at Brandeis University as a Guberman Teaching Fellow. He received a B.A. in Psychology from Susquehanna University, an M.Ed. in Higher Education Administration from the University of Massachusetts Amherst, and his J.D. from Suffolk University Law School. 

Why are liberals fixated on criminalizing speech?  Whether it’s progressive politicians or hyper-sensitive college students, they all seem to be regurgitating the dogma of the day: speech that hurts or offends should be a crime.

Their goal is simple, if they can control how people speak, they can eventually control what they think.  Saul Alinsky, the author of Rules for Radicals, knew this well when he observed “Control the language and you control the masses.” 

Examples of the Left’s efforts to bastardized and control language are all around us.  The demand that we recognize and use a near infinite number of personal pronouns, the invention of the euphemism “gender-affirming care” as a cover for permanent, body mutilating surgery, or the replacement of “pregnant women” with the absurd term “pregnant people,” just to name a few.

Refuse to participate in the Left’s grammatical delusion and you may face consequences. 

Unfortunately, the Left’s efforts to control language is gaining traction, particularly among college students.   

In a recent survey conducted for Newsweek, 33% of Generation Z Americans believe using the wrong gender pronoun should be illegal.    

[RELATED: Misgendering is an ‘act of violence,’ university argues]

Generation Z’s fetish with restricting or criminalizing speech was also revealed in a 2019 Knight Foundation survey, which found that 41% of students surveyed believe hurtful or offensive speech, often referred to as “hate speech,” should not be protected speech under the First Amendment, with a wide majority of students in another poll calling on the government to punish such speech. 

While these views could be brushed off as youthful ignorance, such views cannot be so easily discounted when held by our elected officials.  In Michigan, Governor Gretchen Whitmer supports legislation that could land you in jail if you use words that cause someone to feel harassed or intimidated; and in Washington State, Governor Jay Inslee supports criminalizing political speech.

The Left’s efforts to compel “acceptable” speech, while criminalizing “unacceptable” speech reflects an alarming level of constitutional illiteracy, which poses an unprecedented threat to our rights of free speech and expression, which cannot go unchallenged.

For starters, not only does the First Amendment prohibit the government from infringing on a person’s rights of free speech and expression, it also protects a person’s right not to speak, often referred to as the protection against “compelled speech.”  The prohibition against compelled speech has long been recognized by the U.S. Supreme Court. 

Recent federal court decisions affirming the prohibition against compelled speech have held that college faculty cannot be compelled under the threat of discipline to use a student’s preferred pronouns, and a web designer could not be forced for fear of losing her business to express a message that violated her conscience.

[RELATED: University pays $400K to professor who refused to use a student’s pronouns]

Since what we say and what we choose not to say is a personal decision and may reflect who we are and what we believe in, the government cannot, either by threat of prosecution or coercion, force an individual to express an idea he/she find unacceptable.  All the liberal hand wringing and teeth gnashing will not change that.

Similarly, calls for the government to criminalize so-called “hate speech” will find no support under existing law.  The U.S. Supreme Court has consistently held that the right to engage in speech that some might characterize as hurtful, offensive, or hateful, is protected speech and not subject to the feelings of ‘the most squeamish among us.’

[Related: “Hate speech” is free speech]

Assuming for a moment that the Left got its way and so-called hate speech was illegal, that would make the federal government the arbiter of what constitutes hate speech and the enforcer of a national speech code. Inevitably, the heavy hand of government would wield this new power to advance its own agenda, while crushing opposing voices.

If you think I am exaggerating, think again. Last month, a federal judge found that federal agencies, including the FBI and the Justice Department, as well as Biden administration officials, exercised coercive power over social media platforms, like Twitter and Facebook. 

While the government claimed that it was only trying to eliminate misinformation, its actions were actually intended to silence dissenting voices and manipulate the narrative on numerous controversial issues, including the integrity of federal elections, effectiveness of masks and vaccines in response to COVID, the Hunter Biden laptop story, and negative posts about the economy and Joe Biden. 

Judge Terry Doughty compared the government to an “Orwellian “Ministry of Truth” and characterized its censorship scheme as “arguably … the most massive attack against free speech in United States history.”

Call it what you will, misgendering, hate speech, or misinformation, it’s all protected speech.  Calls by college students or politicians to censor or criminalize such speech smacks of despotism and tyranny and we must fight these efforts one word at a time in order to preserve our liberty and freedom.