For twenty years I have been researching, and for five writing, an endless manuscript on the idea of free speech. In a few weeks it will reach five thousand pages. I am entertained by the look of alarm and pity in people's eyes when I tell them that. It refers to the Book of Gilgamesh, Bruno Bettelheim on fairy tales, Thomas Paine of course, the book of Job and the Parable of the Tares, Brazil's Yanomamo tribe, the Prisoner's Dilemma, Schrodinger's Cat and the beat goes on.
One basic fact I arrived at early is that everything is speech. I made a section in which I began collecting examples and found American court cases in which sleeping, riding bicycles and parking cars were all held to be First Amendment protected speech acts, like flashing breasts, wearing black arm-bands and other more familiar examples. Some people have protest-names, like the girl in Iceland named "Light Rain" by her parents, a moniker not on an approved list which caused her to be referred to for years in official records as "Female". Turning the lights on or off, laughing, owning certain kinds of pets (a ferret in New York City), smelling a certain way, putting up or toppling statues, are all speech. Even silence is speech: Sir Thomas More refusing to answer the King's question, declining today to give one's name to a police officer, the stunning Occupy demonstration where a crowd greeted a California university chancellor with withering silence.
Once I figured that out, I started categorizing speech as power-speech and dispute-speech. Power tends to talk in a commanding, definitive, and often kitschy tone, with crude metaphors, but sometimes it threatens, wheedles or makes no sense at all. Dispute-speech through history is frequently more reasonable and intellectual, trying to introduce a new idea, or achieve a humane even if self interested goal (do not kill us). For every example I found of an unusual form of symbolic dispute-speech, I almost always found one of the same form used by power. Statues are almost always expressions of the powerful because they are expensive, but a year or so ago, some protest-artists put up a statue of Edward Snowden in a New York City park. Dancing is power-speech when performed by ballet companies sponsored by governments or the wealthy, but also the self expression of Samoan dancers who give wild exhibitions at village dances, or stop altogether and demand better music (a dance strike).
It followed from this that in any speech-incident I was analyzing, I began by asking who was speaking to whom? Which of the speakers was the more powerful? Only then could I piece out the actual parameters, the physics, of an incident. I then began to find ever more complicated and nuanced examples: an indigenous or Jewish or African American "village elder" could speak power to his constituents, and then find himself, hat in hand, pleading and arguing before a Czar or English general or Southern mayor. Every once in a while, speech uttered to a weak government by an aggressive minority which hopes to take control sounds like power-speech, like the Nazi Party in 1932.
I began to see humans as speech-animals, bragging and complaining from the very first moment of language, and even before (animals also brag, by showing off antlers, and complain, by whining). As a young man, I realized most people made moral choices several times a day, while believing they never faced any such conflict (when the cashier gives you too much change, you are at a cross-roads). Now I realized that we experience multiple free speech moments a day also without seeing it (shutting up or listening to a child complaining, sweating whether to speak up or not at a business meeting, crazy Uncle Fergie at dinner offending us with his Reaganesque views). The First Amendment actually addresses only a small subset of the different types of "Speech Adventures" occurring within earshot daily: when a weaker speaker addresses a more powerful government and is punished, the First Amendment is a rule-set for determining whether the government over-reacted. That is all.
I am ready to get to Milo Yiannopoulos now. In my scale for weighing speakers and conflicts, I know a few things about Milo. First, he is an accidental free speech warrior: he is what, in analyzing types of speakers, I call a "Bad Boy", for whom dissent is simply a way to get mates and attention. Marge Piercy wrote of the S.D.S. alpha male that "prestige in the Movement rests not on having done anything in particular, but in having visibly dominated some gathering, in manipulating a certain set of rhetorical counters well in public, or in having played some theatrical role". Kirkpatrick Sale, SDS, P. 322 An amusing Yiddish word, "vontz", roughly translates as 'troublemaker".
What is so bizarre, and makes me want to feel my own forehead to make sure I am all right, is that I feel a bit sorry for Milo, though I detest him and everything he stands for. Perhaps it is true that "nothing human is alien to me". I too have been a vontz. Lenny Bruce, who has always been part of my pantheon of minor free speech deities made to suffer and die (torn to pieces like Orpheus), was also a Bad Boy. Both learned early on in life that they could get attention, and mates, and acquire some kind of power over other people, by saying anything which came to mind. Both hit a wall when society decided there were limits to what they could say. That's what eventually happens to Bad Boys. Like the ex-Texas Ranger in Lonesome Dove (a great American novel), about to be hung for killing "sod-busters" who was told he crossed a line, Lenny and Milo answer, "I never saw any line". They are genuinely surprised that, after getting away with so much, they said something which society thinks is punishable: they never saw that coming.
Lenny and Milo, vontzes both, used bad words about people. Lenny had a routine in which he said the N word, and also called people kikes, spicks and chinks (gosh, I just revealed a hypocrisy, that I can't write the N-word). Milo called his college swing the "Dangerous Faggot" tour. I could differentiate them by saying that Lenny was trying to make bad words meaningless, while Milo was trying to keep them as powerful as possible. Lenny was compassionate, I could claim, and Milo a terrible bully, trying to intimidate and silence. There is something to this, but it doesn't completely stand up. Humor, and especially stand up comedy, is aggression, as anyone who has ever been targeted by a comedian can testify. Once, I went to the theater, to be discomfited by a comic from Alaska who, for some unfathomable reason, was opening for the play, and who accurately detected I didn't like her. What I should have said when she made fun of me (this is called "l'esprit d'escalier", the comment you think of only at the end of the evening as you are exiting down the stairs) was: "Can we re-erect the fourth wall please?" Lenny did, like any stand-up, single out audience members sometimes and talk about their expressions or looks. Milo, on the other hand, showed slides of an early-stage transgender woman who was actually in the audience, making fun of her by name, and potentially exposing her to violence.
This is where Milo actually crosses a moral line. When we are thinking strictly in terms of the First Amendment, we are almost universally prohibited from considering motive. We can't convict the Westboro Baptist Church because their speech is mean, while acquitting Catholic Workers in a similar demonstration because they are kind and gentle. But this is a kind of legal trick, important to avoid twisting speech laws out of shape and rendering them meaningless so we can use them always to prosecute speech we dont like. It doesn't mean that words don't have moral consequences, that they can't do damage. Words are stones. I would personally never run for office, even for the Town Board where I live, because campaigning now requires that you undergo a constant hail of small sharp stones daily (as Hillary Clinton endured, and under which I would argue, eventually crumpled). People have said things to me decades ago that I will never forget, that I am ugly, or long-winded. (Writing essays is one way that ugly, long-winded people can aspire to be beautiful (there I am, complaining and bragging)). Milo is a bully. Lenny was not.
If we pull the telescope back, to a wider focus, we can see something else about Milo. Lenny knew he was a tiny, powerless speaker, chiding a power-structure he found unbearable. Milo is an aspirational power-speaker, coming in under the wing of Donald Trump, whom he calls "Daddy". Trump has emboldened and main-streamed voices like Milo's, and they are having a moment in which they are dreaming of power. In fact, you could say in general that whenever Fox News and the right wing chattering class even mention the First Amendment, it is usually on behalf of someone trying to bully other people. In Citizen's United, billionaire money was characterized as protected speech so it can propagate slogans and lies and wash away opposition candidates with accusations of cowardice in war, Communism, baby-killing. The right uses the First Amendment to demand that bakers be able to humiliate gay people. In other contexts, the right has never heard of the First Amendment, as when it seeks to force doctors to say particular words about fetuses to their patients, while prohibiting those same doctors from asking if there is a gun in the home.
Milo was therefore a bully protected by bullies, a troll sent in by powerful forces as a kind of stalking-horse. Around the country, in feigned indignation about the "censorship" of Milo during his "Dangerous Faggot" tour, Republican state legislators are introducing bills which would purport to "protect" free speech on campus. Under the First Amendment, a government, and a public university is a government, may impose "reasonable time, place and manner" restrictions on protected speech. My favorite case in which I was personally involved had to do with words said by a New York City cop through a bull horn to people sitting in lower Broadway. "You must stand up and move to the sidewalk" would have been reasonable. "You must exit west on Rector Street" was not, as it commanded them to end their demonstration.
These proposed laws actually divest universities, which have the most direct experience of their own and their students' balance of needs, of the authority to decide what is reasonable, and make them free fire zones. Worse, these legislators are trying to create, as they are in their laws about refusing serrvice to gay people, battlegrounds in which people can be freely bullied and humiliated. This gets us to another insight. The Fox News types are incensed about "safe zones" on campus in which certain kinds of racist, offensive speech may not be uttered--they want Milo and his ilk to be able to come into your cafeteria or dorm and insult you. The bills in many cases specifically are described as ending these censorious "safe zones". But students at most of these schools live on campus, and the right conveniently forgets that Frisby v. Schultz, 487 U.S. 474 (1988), decided by the Rehnquist court with Sandra Day O'Connor writing for the majority, held that it is a "reasonable" restriction to move unwelcome speech away from people's homes.
Milo crossed a legal line as well. Universities have an "in loco parentis" responsibility to protect students. Milo in his stand up routine exposed individual students by name to bullying and potential violence. It would have been a reasonable campus restriction to stop that from happening. Many schools may have refused to set any such criteria more out of fear of being themselves shamed on Fox News and defunded by state legislators than out of any free speech concerns. I have seen the full text of the letter the transgender individual, who left the school, wrote to her university president after Milo showed slides of her, and it is heart-breaking.
Milo's story has a punch-line, which is a rather delightful one. We used to say in Brooklyn, "What goes around, comes around". Milo began, based on his own experience apparently, defending the idea of adult men, and even priests, having sex with mature thirteen year old boys. Milo, just being Milo, never saw any line. As Fox News and Breitbart backed away, and Simon and Schuster canceled his book contract, I heard the voice of Claude Rains as Captain Renault in Casablanca echoing through the land (as a croupier hands him his winnings): "I'm shocked, shocked to find that gambling is going on in here!"