Editor’s note: This commentary is by Norman Arthur Fischer, a retired professor of philosophy from Kent State University who has lived in Burlington since 2015. He is the author of “Marxist Ethics within Western Political Theory: A Dialogue with Republicanism, Communitarianism, and Liberalism.”
The Windsor School Board has made it clear that they disdain the First Amendment.
The VTDigger article “Board terminates Windsor High School principal over Facebook post“ concentrates on the board’s documentation of why they disdained Tiffany Riley as principal of their school because she wrote a Facebook post on Black Lives Matter they did not like.
Against the school board’s reasoning stand four wonderful First Amendment principles.
One, the right to freely express a viewpoint.
Two, the specific First Amendment rights of teachers and similarly placed school administrators. (For both these rights, see my commentary.)
Three, the rights of citizens not to be censored because someone has some vague notion that they have been offended. This right is clarified through historical development of our understanding of this right. In saying this, I am not taking a stand on the recent debate over constitutional originalism. No Supreme Court justice, whether proclaiming themselves originalists or not, limits themselves to the bare words of the First Amendment. They look at previous free speech cases, and it is certain that as America moved into the 20th century the reach of the First Amendment was extended so that it would be impossible for a federal judge to do anything but laugh at the Windsor School Board’s complaining about how offended people were by Riley’s Facebook message.
The 50-page document they produced, as summarized by VTDigger, consists of multiple variations of statements to the effect that someone, including the board, was offended. The development of First Amendment law from World War I to the present shows absolutely that the Supreme Court throws out freedom of speech persecutions that are based on someone being offended. The case against such persecutions was made originally during the tempestuous period of World War I, when two of our greatest champions of free speech, Oliver Wendell Holmes and Louis Brandeis, defended the rights of protesters to hand out leaflets against the war.
Both wrote dissents, but by 1969 their dissents were codified into law in the case of Brandenburg v Ohio, when the pioneering efforts of Holmes and Brandeis to extremely limit the times when allegedly offensive speech could be used to prosecute someone. Contrast the Brandenburg decision, which is the law of the land, with the complaining of Riley’s accusers.
Four, the rights of all citizens not to have their speech chilled. In their dissents, Holmes and Brandeis also laid the foundation for all First Amendment law today when they argued that not to defend the speech of the war protesters would allow everybody’s speech to be chilled because of possible persecutions based on alleged offensiveness.
To stop someone’s free speech because of alleged offensiveness is such a vague criterion that no one could predict when state officials might try to prosecute them for their speech. The Windsor complainers and school board should have realized that they could have the potential to stop speech beyond Windsor and even Vermont. No one could know when they may be persecuted by state officials. No one’s speech should be chilled because someone like Riley is unfairly persecuted. Persecutions like the one against Riley harm the individual who is persecuted, and also all of American society, which can then be chilled into silence because of one specific persecution.
The four principles are not peripheral to the First Amendment. Rather, the animus against stopping persecutions of speech based on hatred of a viewpoint, hatred of the rights of teachers and similarly placed school administrators, offense, and the desire to chill speech, are central to the First Amendment.
Censorship like that of the Windsor School Board is based above all on the kind of hatred that the four First Amendment principles shields society from.
I developed this account through research into 19th century Scottish novelist Walter Scott’s “Peveril of the Peak,” a study of persecution of Catholics because of their speech and viewpoints just before the consolidation of rights of free speech in Britain’s Glorious Revolution of 1689-90. In this and in Scott’s earlier and parallel novel, “Old Mortality,” defending the free speech right of radical Presbyterians, Scott went far in defending the rights of people who were oppressed because of political hatred of their viewpoints. “Peveril of the Peak,” set against the background of the allegations that there was a Popish Plot in England, chronicles violations of free speech when the accused Catholics are members of a hated group, such as someone like Riley who made a single criticism of Black Lives Matter. Scott’s Catholics and radical Presbyterians had been made more hated through the use of the same kind of propaganda that we have seen in the chilling and sinister writing of the Windsor School Board.
I hope that other Vermonters will join me and fellow VTDigger commentators Deb Bucknam and Judy Olinick in opposing the shameful action of the Windsor School Board.
