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Free Speech Banned On Boston Common: The City’s Ignominious Failure

Boston police guard the Parkman Bandstand surrounded by fencing on Boston Common prior to the Free Speech demonstration, Saturday, August 19, 2017.
Meredith Nierman

“They made a desert, and they called it peace.”  –Tacitus 

The blessings of free speech were lost on Boston Common this past Saturday, and the question now is whether – and how – proponents of liberty will be able to come to terms with this shameful and distressing turn of events. It won’t be easy. Boston is a bubble, a bastion of largely left-wing sentiment. Social discipline is maintained throughout the proper-thinking precincts of Boston and Cambridge by drawing room conventions that often confuse the intellectually inconvenient with rudeness. Saturday’s events, I fear, will become a case in point.. 

The First Amendment to the United States Constitution provides with utmost clarity against the government’s enacting any laws “abridging the freedom of speech.” The exceptions and limitations are few and narrow. The Boston Common Free Speech Rally – cynically or sarcastically or through an excess of politically correct caution dubbed by the media as the “Free Speech” Rally (note the scare quotes) – was a massive failure for what was widely deemed a test of the community’s First Amendment vibrancy. 

Yet City Hall, police, and the media all proclaimed the exercise an overwhelming success. Why? Apparently because nobody was killed. So, the official test now for whether an expressive event succeeds in its purpose is not whether the speakers are able to say their piece, nor whether those who want to listen actually get to hear. The test is that nobody was killed during the course of an event where not a word was heard, where no political views were aired, where no debate took place. 

Was it possible to have such a rally under conditions where crowd control by the police would have been possible, and the speakers could have been heard? Of course! For example, the rally could have been held in a theater where the audience would have been limited in number and easy to control. And the speeches within could have been live-streamed. 

Welcome to the Era of Trump, in which not only the President and his minions are frighteningly hostile to free speech, but where local officials, police, and news media, in a nominally sophisticated community resorted to the notorious form of First Amendment censorship known as the heckler’s veto. Those who sought to silence the free speech rally won. Debate was squelched, cut off, prohibited. 

Much ink was spilled on the question of whether the sponsors of the aborted rally were rightists, fascists (of the so-called “alt-right”), or simply – as the sponsors maintained – First Amendment aficionados whose politics were ideologically diverse.  

The Providence Journal, which came closest to reportorial neutrality, dubbed the event a “conservative rally.”  

The Boston Globe reported breathlessly in a story published on the Thursday before the scheduled Saturday morning rally and headlined “Speaker list for ‘free speech’ rally includes right-wing extremists”: 

Some speakers have dropped out of the “Boston Free Speech” rally planned for Saturday on the Common, but at least two right-wing extremists, including a Clinton conspiracy theorist and a founder of a group dubbed by hate watchdogs as an “Alt-Right Fight Club,” will still address the crowd at the event, which is expected to draw counter-protesters and a heavy police presence.”  

The Globe reported that same day that “civil rights activists, noting the extreme, white nationalist views of some of the speakers who were initially invited, criticized the coalition for offering a platform to people who spew hate and racial violence.” Taking the bait, Boston Mayor Martin Walsh astonishingly told Globe reporter Meghan E. Irons: “You can have your free speech all day long, but let’s not speak about hate, bigotry, and racism.” The paper never bothered to ask the mayor how a free speech event could possibly be deemed to be free if speech deemed hateful by the city authorities were forbidden. 

Robert Trestan, executive director of the Anti-Defamation League’s Boston office, was reported by the Globe’s Michael Levenson as urging Bostonians “to ignore [the] far-right rally,” in the absence of evidence that it was indeed a rally of fascists, rather than a speech program from across the political spectrum, with emphasis on vindicating First Amendment rights. “Leave the bigots alone in the Boston Common with no audience and no one to hear their hateful rhetoric,” Trestan was quoted as urging.  

Given the vast chasm between what the rally’s organizers claimed their purpose to be, and how Boston’s politicians and news media were characterizing the rally-to-be, it would have been extraordinarily interesting to hear what the speakers actually had to say. But the shouts of the vast crowd of opponents were so loud that it was clear that the speakers would not be heard even if they had the opportunity to speak. Whatever the circumstances, the free speechers were escorted off the podium about 50 minutes after their event began. The Boston Police whisked them away in waiting police vans. Riot police had to be deployed to ensure their safety from a crowd in which many sought confrontation. 

This was the ignominious end of the experiment – an experiment to test whether a rally sponsored by a group of political activists that describes itself on its Facebook page as “a coalition of libertarians, progressives, conservatives, and independents” willing to “peaceably engage in open dialogue about the threats to, and importance of, free speech and civil liberties” would be able to speak on the hallowed ground of Boston Common. Two days after the event, despite adequate time for reflection, an unsigned Globe editorial continued to refer to the organizers as people “who claimed to be marching for free speech but who have links to white supremacist groups.” Only the slightest doubt seemed to creep into the editorial writers’ thinking: “[B]ut it still would have been better had the public known exactly what the rally goers were doing and saying.” 

John Medlar, the 23-year-old Fitchburg State University student who played a major role in organizing the rally, said that he was concerned about the so-called “antifascists” who threatened to show up for the rally, because they “do not believe violence is immoral,” Levenson reported in the Globe. The Globe likewise reported that the left-wing militants who vowed to show up, and who did, said through a spokesman: “We believe violence is actually a pretty good tool to use against people who don’t agree with our worldview.” By the time the speakers gathered on the Boston Common’s bandstand in preparation for speaking, it became apparent to the Boston Police and to the rally’s organizers that the conditions for a free speech program had turned too dangerous. The speakers did not appear to object when the police escorted them to safety, terminating any hope of having the program actually take place. 

This is the scenario that has caused media, city officials, liberal commentators and the Boston Police to proclaim that the rally was a success – because nobody died. Except, of course, for the First Amendment. With such “victories” for free speech, one wonders what its defeat and demise will look like. We might, alas, find out rather soon. 

It would be too facile to blame the death of liberty on Donald Trump, or on right-wing or left wing extremists. The cause will be the loss of our own collective will to protect liberty. Those who think that anything less is at stake, or who refuse to recognize their own failure to protect free speech, should closely examine how they responded when Boston was faced with a clear test of its devotion to liberty, and ignominiously flunked. 

The most practical loss that we will suffer is that we will never know who among the numerous speakers scheduled to address the rally are really in the category of those on whom we should not turn our backs. Boston compromised its own safety, as well as its reputation as a cradle of American liberty, when it drove the sponsors and participants in the free speech rally from the Common before they could even open their mouths.  

Since I entered law school in 1964, the Constitution has been my life. Over the course of my career, I defended Vietnam War protesters, civil rights activists, demonstrators beaten by the police, professionals subjected to the full ferocity of federal prosecutors for “crimes” that could be politely termed figments of overactive legal imaginations, and once during Boston's school desegregation crisis, a Nazi who refused to speak to me because I was Jewish (I got him off). 

But it was in the late 1990s, at the University of Wisconsin, that I absorbed one of my most instructive and lasting lessons. I had been retained by a group of pro-speech faculty members to advise them in their battle against a proposed campus speech code, which they rightly feared would curtail not only their right to speak freely, but also their intellectual freedom. 

I produced a lengthy memorandum summarizing the governing Supreme Court jurisprudence that could be called upon to invalidate such a speech code in the event the Faculty Senate enacted it. It was not a close question – virtually all of the relevant Supreme Court cases since the latter years of the first half of the Twentieth Century had been decided, often unanimously, in favor of free speech. That case law has not changed in any material way up to the present. The right to free speech remains very nearly absolute, with only the clearly delineated exceptions involving making false statements to government officials, defamation, obscenity, national security, copyright, and the power of public officials to shut down speech when “fighting words” present a “clear and present” danger of inciting “imminent lawless action”. 

I showed up for the Wisconsin Faculty Senate meeting, hopeful that the legal arguments I crafted would succeed. However, it turns out that the high court opinions need not even have been reached, because the Faculty Senate was moved by a much more basic, intuitive argument made by a college senior who was given leave to speak. 

The student rose and addressed the Faculty Senate and the overflow audience. He made the following argument, which I reconstruct in paraphrase from indelible memory: 

“I am a senior. In a few short months I will graduate and be going out into the world. Because I am gay, I anticipate that there will be bigots who will have some nasty things to say to me. Some will call me a “faggot,” and others will have even worse things to call me. I will not find it pleasant to be called such names, just as I have not found it pleasant so far in my life, even here at Wisconsin. But I would not want any law or rule that would prohibit my enemies from telling me what they really think about me. Why? Because in fact I want to know what people think of me. I want to know who considers me a “faggot” rather than simply a fellow human being. Why do I want to know? So that I know on whom I should not turn my back. For my own safety, I need to have my enemies feel free to tell me what they really think of me.” 

The Faculty Senate members, as well as the audience, were visibly transfixed. The argument against adoption of a speech code was essentially over, and the Senate voted against the code. This experience gave me a deeper -- more visceral -- understanding of the importance of free speech, an understanding that transcended my legal arguments. 

Speech is more than a case of “she said” and “he said”. It is a portal into our minds. It is a trigger to action -- sometimes good, sometimes bad. Boston shortchanged itself and the nation last weekend when, in effect, it gamed the First Amendment. The question now is will we learn from our mistake? 

 Harvey Silverglate writes the WGBH News “Freedom Watch” column. He is a Cambridge-based writer and criminal defense and civil liberties lawyer. His research assistant Nathan McGuire assisted in the preparation of this article.  

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