What we can learn about the First Amendment from that guy with the ‘you deserve rape’ sign

I’ve been musing for a while about a Daily Wildcat story on a student who held a sign that read “you deserve rape” on campus on the same day that the Take Back the Night rally was held to raise sexual assault awareness. As a journalist, I’ve been taught not to say how I feel about a story, especially one in a newspaper that I edit. But it would be a little ridiculous to pretend I don’t have a bias here. Of course I’m biased against a guy who says I deserve to be violated if I wear a short skirt. I would not argue with claims that his speech is hurtful. I do not believe Saxton should deliver a sermon that perpetuates victim blaming and slut shaming.

But I do believe in his right to do so without fear of retaliation through physical harm or legal means.

Editors and I addressed this in an editorial that ran Thursday, but I wanted to reiterate a message that was tweeted at the Daily Wildcat by a woman who identified herself as a sexual assault survivor and wanted to thank us for the story. As she put it, we can’t stop what we can’t see. The next question is: How do we stop it?

There were a lot of comments that declared Saxton should be raped or otherwise physically assaulted/banned from preaching/expelled from school/somehow formally disciplined for saying what he says. And while I understand the writers’ feelings, most of them seemed counterproductive. Kendal Washington White, the interim dean of students, wrote a beautiful guest column published by the Wildcat on exercising restraint and reason in times of controversy. There’s no justification for advocating for more violence, and any comment that begins with the idea that we should punish Saxton through violence automatically stops being worth reading.

The comments and online petitions that demand the school take disciplinary action against him, such as expulsion, are more concerning because they demonstrate a willful disregard for the First Amendment — so much so, in fact, that I asked news editor Brittny Mejia to do a follow-up piece on the reaction that focuses on the questions readers have raised about free speech on campus.

From the UA’s Office of General Counsel:

Importantly, the First Amendment to the Constitution restricts the University from placing selective limitations on speech or expression because it is insensitive, boorish or expresses viewpoints on disfavored subjects. Similarly, the First Amendment forbids the University from regulating or punishing speech or the expression of ideas or messages because they are offensive or controversial.

A lot of people argue that hate speech is not protected speech. But if it’s not, then I don’t really know what is. The First Amendment doesn’t exist to protect speech that everyone agrees with. If people already agree with it, what does it need protection from? Additionally, as the Student Press Law Center‘s Frank LoMonte told Brittny, there’s no exception recognized by the law for hate speech.

There are also arguments that throw around the word “incitement” like it’s a thing here. It’s not. And like I tweeted a couple of days ago, I had no idea so many Supreme Court justices were on the Internet. I’ve become more than a little frustrated with a couple of arguments floating around that use precedents like Schneck v. United States and Brandenburg v. Ohio to justify setting limitations that do not exist.

Full disclosure: I’m just a kid who’s taken a few classes on journalism and government. Also, I’ve read some stuff on the Internet. But if everyone’s acting like that makes them know better than the UA’s attorneys, I’m going to go for it too.

Schneck v. United States established the “clear and present danger” test. It stopped being a thing in 1969. Good try, online commenter who took a history class.

Brandenburg v. Ohio narrowed the scope of the “clear and present danger” test by establishing the “imminent lawless action” test. There’s kind of a twisted irony to using Brandenburg as a justification for punishment here, considering the original case struck down the idea that the mere advocacy of violence is enough to merit a limit on speech. I suspect the UA’s School of Journalism would be glad to know that I really was paying attention to professor Mitchell when he explained the three parts to Brandenburg: intent, imminence and likelihood. Did Saxon intend to urge others to rape people? Would the rape immediately occur upon seeing the sign? Is it likely to occur immediately?

The answers are no. I understand why what Saxton said feels like fighting words, which was another justification I spotted on the Internet for disciplining or arresting Saxton. But the concept of fighting words was established by Chaplinksy v. New Hampshire, which has been narrowed by later court cases. The things Saxton says are pretty comparable to anything the Westboro Baptist Church has ever made headlines for, and the majority in Snyder v. Phelps did not consider what the WBC says to be fighting words.

There have been other reports about Saxton targeting specific people walking by him. I haven’t watched the 30-minute YouTube video committed to his antics, but I’ve heard it features him spitting on a Muslim woman. That’s also an entirely separate question from the one I think most people are still grappling with. Those incidents should definitely be dealt with by school officials or campus police. But the sign that read “you deserve rape”? That’s different. On that, at least, the law falls on Saxton’s side.

In continuing our coverage of the reaction, the Wildcat ran a story on an event in which students were invited to make their own “You deserve” signs. There were a few rabble rousers, I heard, but for the most part, it was an inspired demonstration of how we can and should react to these situations. Rape is a violent crime, and a culture that tolerates rape is a problem. But so is a society that would deliberately, willfully disregard or manipulate its own laws to shut up an unpopular point of view. The answer to fighting hate speech is never less speech.

If the counter-demonstration showed anything, it was that we don’t really need to worry about guys like Saxton because he’ll never really win. There are more good guys than bad guys in the world, more voices than just his. He deserves his say, and so does everyone else. Ignoring him or forcing him to go stand somewhere else doesn’t really make things better. It just sends us down a slippery slope — one that allows anyone to be forcibly quieted for anything that isn’t totally well-received.

This is really how you make things better:

you deserve love

UA student Paola Andrea Gonzalez participates in a demonstration to counter UA student Dean Saxton’s “You deserve rape” sign. (Photo by Gabriela Diaz/Arizona Daily Wildcat)

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