Does the First Amendment Protect ‘Effective’ Speech?

There is an article in the Free Press by Ilya Shapiro titled "Where Free Speech Ends and Lawbreaking Begins." Shapiro does a good job of discussing what is generally known -- that speech rights don't include assault and intimidation. And certainly we are seeing a lot of this thuggery on campuses and elsewhere.

But, the question occurred to me: why, if people generally understand this distinction between freedom of speech and assault and intimidation, do we have these incidents by people who are not otherwise criminal so easily crossing the line? It occurs to me that there are a couple of explanations: (1) the obvious "mob" mentality that can happen when your speech activity is done in a group, but also (2) the incremental pressure to be more "effective" in achieving the goals of your speech. And it is this latter one that I want to examine.

Nothing in the First Amendment guarantees that your ideas will prevail. Yes, your expression is supposed to be protected against government retaliation and censorship. But protection against retaliation and censorship does not mean that anyone has to listen to you. But somehow this seems to be lost on a lot of people these days. It's as if speech is not enough. Therefore, one has to up the ante and act in ways that make speech more "effective" in getting your way. As systems get more used to "squeaky" wheels, the wheels need to become "squeakier" to get attention.

Life is like a busy bar. If you have an announcement for all of the patrons you need to get them to stop talking and pay attention to you. If you are not getting enough people to pay attention you get louder, call on patrons to shush people around them, rap on the bar, etc. But the First Amendment doesn't make the patrons stop talking and listen, it only means the barkeep can't throw you out for trying to make an announcement without breaking things and pushing patrons.

We read reports of teachers offering extra credit for, or even requiring, political activism by students (e.g., here, here, and here). Why isn't class discussion good enough? Because the teachers want the speech to be "effective." And to be effective, you need numbers. If you can get numbers, it will get attention. But, in context, numbers may not be enough to be effective. Put 20 protesters in a conference room: effective. Put 20 protesters in a stadium: not so much. So the desire for effectiveness requires an inverse relationship between the numbers and conduct: the fewer people you have for a given venue, the more their conduct must be annoying and disruptive to be "effective."

The concept of peaceful protest was that people are essentially good, generally moral, and do not want bad things happening to people for no good reason. So when people are engaging in an activity quietly that hurts no one but highlights an unjust rule or practice, retaliating government is put in a bad light and, in a democracy, people demand changes to those rules or practices. Media amplified the voices of peaceful protest and government responded to the mood of the electorate. When the media stops amplifying peaceful protest (or votes no longer count), protests cease to be peaceful because it is not "effective."

When did we decide the First Amendment protected "effective" speech? Was this one of those "penumbras" and "emanations?" The beauty of the Progressive lexicon and "constitutional" practice is how "flexible" it is. The best way to cow a people is to subject them to "effective" speech and criminalize the reaction to it. The "brown shirt" era has returned.