The ACLU and Bigoted Speech in Public:

Clayton Cramer writes:

I suppose that they could have arrested him for public drunkenness, but they picked the far more serious offense:

A final-year Oxford University student from Belfast who called a mounted policeman's horse gay will not be prosecuted, it was announced today.

Police stood by their decision to take Sam Brown (aged 21) to court for making "homophobic comments" after the Crown Prosecution Service today dropped the case.

Mr Brown approached the officer during a night out with friends in Oxford after his final exams, and said: "Excuse me, do you realise your horse is gay?"

Moments later, two Thames Valley Police squad cars appeared in the High Street and Mr Brown was arrested under section five of the Public Order Act for making homophobic remarks.

His remarks were deemed likely to cause harassment, alarm or distress.

To who? The horse? Apparently, the police were afraid that these remarks would have been offensive to those passing by:

A spokesman said: "We present the case to the CPS and the CPS make the decision to proceed or not.

"He made homophobic comments that were deemed offensive to people passing by."

So far, so good -- an important illustration of how English law potentially restricts free speech (and why we might want to resist calls for the importation of foreign free speech norms into the U.S.). Yet here's what Mr. Cramer closes with:

You wonder on which side the ACLU would have been if a similar law and case presented itself. On the side of the drunken student's free speech rights? Or the right of the community to not hear ideas that offend?

Well, you might wonder this -- if you didn't know the ACLU's record on criminal prosecutions for bigoted speech. But if you did know it, or you decided to investigate it instead of wondering, you'd find:

  1. In the highest-profile Supreme Court case of the last 15 years that dealt with criminal punishment for bigoted speech -- R.A.V. v. City of St. Paul (1992) -- the ACLU (both the national group and the local chapter) filed an amicus brief defending the right to say bigoted things. "[A] ban on expressive activities that 'arouse[] anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender' cannot be reconciled with our society's commitment that 'debate on public issues should be uninhibited, robust, and wide-open ....'" "It is tempting to say that the message conveyed by even the public burning of a cross during a political rally" -- the case involved racist crossburning, though the logic of the ACLU's argument applied to all bigoted speech -- "is so offensive, so hurtful, and so antithetical to the ideal of equality, that it ought to be subject to prohibition without the need for rigorous scrutiny of whether it crosses some First Amendment line from protected advocacy to unprotected threats or intimidation. The Constitution, however, does not tolerate such shortcuts."

  2. In another recent case involving bigoted speech, Virginia v. Black, the local ACLU chapter likewise argued that bigoted speech is protected unless it fits within the threat exception or the incitement exception (or, possibly, the exception for face-to-face personal insults that are likely to start a fight). There, the ACLU was among the lawyers for the defendants.

  3. The above two cases are most relevant to predicting the ACLU's position on the matter that Mr. Cramer points to -- criminal prosecution for offensive bigoted speech. But even if one looks to noncriminal penalties, and focuses on the highest-profile bigoted speech controversy of the last two decades, campus speech codes, one finds that the ACLU has supported free speech protection. (Three local chapters in California didn't take this view, but the national ACLU did.)

The ACLU has unfortunately supported speech restrictions under the rubric of workplace harassment law, though Nadine Strossen, the ACLU's President, publicly dissented from that position; but, even more unfortunately, the ACLU here is simply in the legal and social mainstream (for my dissenting views, see here, though even I would accept some restrictions on one-to-one insulting speech). In any event, it is the ACLU's past positions in cases involving criminal punishment of speech on the street that seems to be the best predictor of its future position in a case involving criminal punishment of speech.

So it seems to me that there's little call to imply that the ACLU would oppose protection of free speech in the case that Mr. Cramer describes. Those familiar with the ACLU's past position in such cases should see that pretty clearly.