McSwane Is No Defender of Free Speech

It would be pleasant if more journalists actually understood the concept of free speech. J. David McSwane, the editor of Colorado State University’s Rocky Mountain Collegian, obviously does not understand it.

As a late October 4 article by Erika Gonzalez in the Rocky Mountain News reviews, McSwane published an “editorial” on September 21 that stated “Taser this? F– Bush,” ” with the expletive spelled out,” Gonzalez notes. (While I reserve the right to publish swear words, I choose not to do so as a general matter of policy, which is not to say that I’ll never make an exception.) That’s it — just four words.

If the story were only about a dumb college kid or swearing about Bush, I wouldn’t care. (I’ve sworn about Bush plenty of times myself, though not in print.) But the important part of the story is much more important, as it gets to the heart of the First Amendment.

Gonzalez’s story notes that a CSU board allowed McSwane to keep his job as editor. Here are the two relevant paragraphs from the article:

Although the board said it considered the opinion expressed in the editorial protected by the First Amendment, it also acknowledged the impact the piece has had. …

“We did not do this to capture headlines,” McSwane said last week. “We did this to spark a discussion about free speech”.

Of course the editorial is protected by the First Amendment. Nobody is questioning that. But that has absolutely nothing to do with whether McSwane should have been fired for publishing it.

If McSwane cares to check, here’s what the First Amendment actually states: “Congress shall make no law… abridging the freedom of speech, or of the press…” A document by Cornell further explains:

The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference. … Freedom of expression consists of the rights to freedom of speech, press, assembly and to petition the government for a redress of grievances, and the implied rights of association and belief. The Supreme Court interprets the extent of the protection afforded to these rights. The First Amendment has been interpreted by the Court as applying to the entire federal government even though it is only expressly applicable to Congress. Furthermore, the Court has interpreted, the due process clause of the Fourteenth Amendment as protecting the rights in the First Amendment from interference by state governments.

Article II, Section 10, of Colorado’s Constitution reiterates this protection:

No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.

Has Congress passed a law censoring McSwane? Has any law been passed regarding the matter? Has any level of any government taken any action whatsoever regarding what McSwane can say or write?

No.

In fact, no one is trying to prevent McSwane from saying anything whatsoever. If he wants, he can start his own newspaper called Taser This? F– Bush, “with the expletive spelled out.” He can start a “F– Bush” blog. He can run off flyers proclaiming “F– Bush” and distribute them to willing takers (provided that he does not violate property rights in doing so). McSwane is perfectly free to wander the the sidewalks endlessly repeating “F– Bush” if he wishes.

But whether any particular newspaper chooses to hire McSwane is simply not a matter of free speech or the First Amendment. There’s just no connection. The fact that many professional journalists have failed to point out this simple fact does not change it.

Ayn Rand explains the matter with characteristic clarity:

Freedom of speech means freedom from interference, suppression or punitive action by the government — and nothing else. It does not mean the right to demand the financial support or the material means to express your views at the expense of other men who may not wish to support you. Freedom of speech includes the freedom not to agree, not to listen and not to support one’s own antagonists. A “right” does not include the material implementation of that right by other men; it includes only the freedom to earn that implementation by one’s own effort. Private citizens cannot [legally] use physical force or coercion; they cannot censor or suppress anyone’s views or publications. Only the government can do so. And censorship is a concept that pertains only to governmental action. (The Ayn Rand Lexicon, page 175)

For CSU’s board even to mention the First Amendment in the context of McSwane keeping his job is bizarre. Apparently that board understands the First Amendment as well as McSwane does, which is to say not very well. (I wonder whether McSwane cried “free speech!” when Imus got fired.)

There is only one way in which free speech is at issue. If the state-subsidized college’s newspaper is in any way subsidized by tax dollars, directly or indirectly, including related faculty salaries and costs of facilities, then McSwane’s editorial violated the rights of free speech of those who were forced to subsidize it against their will. But this problem is inherent in any spending of tax dollars to advocate any idea or expression whatsoever.

And, arguably, when school administrators accept tax dollars, they effectively become agents of the government. Agents of government-funded institutions are subject to Constitutional limitations. So if administrators of a tax-subsidized college try to limit a student’s expression using tax-subsidized facilities, that may indeed raise First Amendment concerns. But does that mean, for example, that a student could parade around in class screaming “F- Bush?” Obviously not. The problem with any tax-subsidized expression of ideas is that it necessarily violates somebody’s rights of free speech. Within the context of tax-subsidized speech, the problem is intractable. (An article by David Hudson illustrates the difficulties of defining rights of expression in the context of tax-subsidized institutions.) The only solution — the only way to consistently protect free speech — is to stop funding schools via the forcible redistribution of resources. A fuller examination of this particular matter would take us rather far afield. For our purposes, I need merely point out that firing McSwane for publishing a four-word, nonsensical, profane utterance in place of an actual editorial would not pose any serious First Amendment challenge. Otherwise, one might as well argue that students have the protected right not to be “censored” with low marks if they squawk like chickens in response to oral examinations. I mean, let’s get serious.

It is no coincidence that some of the same people who invoke the First Amendment in cases where it doesn’t apply also advocate laws that clearly violate the First Amendment. (I am not writing of McSwane here, as I don’t know what his views are.) The “Fairness Doctrine,” more accurately called the Censorship Doctrine, is an obvious example. Campaign laws that outlaw select political speech are another.

But let us leave the matter of free speech and consider whether McSwane should have been fired. Part of me thinks that he’s just a stupid college kid who pulled off a stupid college prank and found himself in the national spotlight, so who cares. God knows I did far stupider things while in college. But, quite obviously, if he wrote such an editorial for any real newspaper in the country, he’d be immediately kicked out the door. I frankly don’t care whether he edits a podunk paper that hardly anybody reads. But if he imagines that his treatment at CSU is remotely similar to what he’ll face in the real world, then CSU is doing McSwane quite a disservice.

Here’s a fun side-note: I went to Westword.com and searched for “f–” (“with the expletive spelled out”). I got 1,000 results. To read my own defense of the right to use the “f word,” see my article of 2003.