This is a guest piece submitted to the Oregon Commentator by a student. Unfortunately, by the time we received it we did not have space for it. We have instead chose to post it to our blog as the content is time sensitive. Be advised that the student is not a member of the Oregon Commentator and their views do not represent the editorial position of the Oregon Commentator.
*Note: I am not representing the interest of either opposing faction in terms of this issue: the Pacifica Forum, or its protestors. I represent the legal system applicable to all persons of this country as defined by the institution of the UO’s Code of Conduct, the Oregon State Constitution and the Federal Constitution. I am a realist; I hope I can convince readers to be realists with me.
There seems to be a general misunderstanding by the Pacifica Forum protesters about the causality and validity of their protest. The Pacifica Forum has become notorious for housing uncommon, extremist ideological perspectives that few of us share or respect. Speakers at Pacifica have denounced Judaism, preached hate, and lashed out at community members: they have been specifically praised and acknowledged by neo-Nazi organizations and the NSM (though it is important to point out that the Anti-Hate Task Force, the group leading the protest against PF, has been praised and acknowledged by neo-Communist organizations). But, in order to objectively and dispassionately review the behavior of the Pacifica Forum, as is necessary for legal dispute like banning them from government property, it is important to translate and apply our laws to this organization, not just attack them on morality and personal emotion before litigation is announced. Unfortunately for many protesters, our laws protect this organization.
The Anti-Hate Task Force has explored many reasons to remove Pacifica over the past few weeks: consistency seems to be an issue. These claims range from “hate speech is not free speech,” which changed into “students should decide what to do with student money,” (kind of laughable) which changed into “they should have to pay for space”, which changed into “it’s a matter of safety.” These claims range in solutions from “remove them from the EMU” to “remove them from campus,” to “remove them from the community.” There has always been great appeal in this country for the college student to mobilize and demonstrate, but the inconsistency and disorganization of the protest misrepresents the ideals of our University and represents a completely ignorant approach to social and legal change. How do I know? I tried to tell them just this and “fascist white supremacist” was yelled at me. It can be hard to legitimize verbal assertions, like those against Pacifica, when the same verbal assertions were falsely subjected to me, under very tame circumstance: it makes me wonder how much fascist propaganda actually circulates the forum.
From my exposure to both of these groups, like any realistic moderate living in our community, I don’t identify with either: I do not like the disgusting people Pacifica Forum has brought in, and I do not like the fabricated ideals of the protest. It is, however, in everyone’s (including you, readers) best interest to understand the law in a circumstance such as this: the best protests in this country’s history haven’t been a question of morality, which is a concept exempt from dispassionate objectivity and fluid in emotion from human to human, but are a question of legality.
Readers, this is really abundantly important: hate speech is free speech.
The exception to this law does not apply to a public forum. What is illegal in this country is action that is a result of race (or gender, or sexual orientation, or age). Action that results from any of these “isms” is something known as “incitement of violence.” The battle between incitement of violence and the First Amendment has been fought in this country for longer than any of us have been alive. This situation is no exception. Civil Rights laws are crafted in a way that protect an individual from physical harm, not laws against the institution of racist propaganda itself. A quote from an anonymous protester claims that “fascist propaganda leads to fascist action time and time again.” It is the fascist action that is illegal time and time again, not the propaganda (furthermore, fascist propaganda also doesn’t lead to fascist action time and time again so this argument is kind of moot). The EMU and the UO housing contain policies that prevent the ideology of public racism: something exclusive to an area of residence as well as the diversity center on campus. There is no doubt that Pacifica Forum should have been removed from the EMU, not for adhering to racist ideals as an organization but for simply housing them; there is nothing wrong with hosting racist speakers as a testament to free speech, but because of EMU policies, the EMU is not the place to do it. But these anti-racism policies do not extend to the rest of campus.
From this fiery, uninformed allegation of “hate speech isn’t free speech” branched the continuing fountain of misinformation. The protest took roots in combating unproven issues of safety from threat, safety from assault, and safety by prevention. None of these roots have any legal nourishment.
Legally, the issue of public safety begins with the concept of action. Action is what drives legislative process, action is what can violate freedoms or create ground for litigation against threat or assault. Once action is determined, than there must be evidence to determine the causality of that action. These are not concepts that the protesters have understood up to this point, and are concepts I hope to clarify to perhaps allow them understanding in pursuing the matter legally; no action has been sufficiently proven to be the fault of organization of Pacifica Forum. What we have is a lot of speculation about hate crime and violence in the city of Eugene that is not directly correlated through evidence.
Yes, realists, there is hate crime, and yes there is intolerance, and yes there is racial or sexual violence, and yes there are neo-Nazis in Eugene. Hate crime and violence and Nazism exists far beyond our borders and far beyond the reach of Pacifica Forum. The existence of this does not directly put Pacifica Forum at fault. Even if specific members who have committed hate crimes have attended Pacifica Forum meetings, this is not sufficient evidence to fault the organization of Pacifica, it is sufficient evidence to fault the persons who acted in violence. Any person may attend any open forum and become enraged by any other opposition to the point of physical assault. It is logically insufficient to say that the organization is the causality of the action unless there is physical evidence that proves incitement of violence was promoted in a specific instance by this organization. In layman’s terms: the organization must place the gun in the hand of the shooter, not the shooter got the idea from the organization. A legal example of this is Timothy McVeigh: a man immersed in anti-government militia propaganda groups for his entire adult life, yet McVeigh was subject to the law by his actions, not the group by their teachings.
Further misunderstanding of the law in terms threat is displayed by the protest. There are essentially two branches of threat that can be litigated against. The first and most common and easy to prove: the act of threatening. The second, harder to prove, more applicable to this situation: the feeling of being threatened. The act of threatening is defined by Oregon State law as “by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury.” This means that threat has to effectively be a specific entity targeting another specific entity; the claims made by Pacifica Forum members of “watch yourself at night” or “you’re not ugly enough to rape” are not instances of threat toward a specific target and from another specific target. A threat under Oregon State Constitution would read: “I am going to rape you.” It should be noted that if the above statements are considered threat (which they’re not), so would the statement “now we know who you are,” which is a lovely sentiment I received by protesters after observing the Pacifica meeting on Friday, January 22.
The legal response of feeling threat, because several member have reported feeling so, is much more applicable to the situation, it just requires a significant amount of more evidence to prove other than the statement of feeling threat itself; people have a lot of reasons to feel threat about a lot of things so it’s necessary to prove it. This evidence requires the stipulation of the “reasonable man,” as well as a stipulation of “immanency.” The “reasonable man” is a term used often in legal procedure to apply objective relativity to a situation. If the concept of the reasonable man, as defined by a legislative body, would find words threatening, then those words are legally threatening. Both of the above statements from Pacifica members could, under the right light, be read as threatening by interpretation of the reasonable man. It is the concept of immanency that sinks both of these statements in terms of legal credibility toward feeling of threat. Immanency, as the word implies, requires the immediacy of physical harm from a threat: that the victim will be attacked immediately or before any sort of chance to escape the attacks. Neither of the above claims are imminent; both statements refer to an ideological opinion that may be enacted at some point in life, which removes the burden of legal threat from the members of Pacifica who stated them. The absence of actual rape works against immanency.
Even if (a big if) the legal definition of threat, assault, or feeling of threat can be successfully linked to any persons who have attended Pacifica Forum, the next task is even more daunting: proving fault against Pacifica itself. It is important to note that Pacifica cannot be legally responsible for violence or threat until after specific individuals are ruled guilty. Our legal system requires this stepping stone from proving individual crime (which has not been done yet), and then proving organizational crime (which has certainly not been done yet). Again, the “reasonable man” stipulation show up here. If it can be proved that the reasonable man should have known not to bring in a dangerous person, based on background and historical information, and that dangerous person committed one of the crimes listed above, then is can be argued that it is the fault of the organization. Similarly, if you can prove that the organization has an ideology in violence that would lead to violent events (realists, it should be noted that this is impossible because the very point and nature of the Pacifica group is the absence of group ideology—this example is merely for lawful understanding), and those same violent events occurred, then you can litigate against the group.
The third vein of public safety explored by the protest is that of prevention: prevention against the possibility that future physical harm or threat will be exposed to the community. As are the laws of immanency applicable to threat, these laws are applicable to prevention as well. Under the Federal Constitution, legislative bodies do not have jurisdiction to pass litigation and effectively punish any persons or organizations for preventative purposes. As immoral as the protest may find these laws, legislation cannot be passed against a potential murder if they are thought to kill, only until they have murdered can they be punished. This is a concept that our country has righteously employed: innocent until proven guilty. Even court ordered restraining orders, an idea that most people think of as preventative court action, cannot be applied unless the restraining party can prove domestic action currently enacted against them, or the immanency of the threat of this action.
Can you imagine a country in which judges and juries could pass litigation based on premonition of future actions rather than the physical and provable actions that currently exist? This concept scares me much more than a country that permits the distasteful dialog of neo-Nazis. Imagine how much more racism, more violence, more hate would result. The very foundation of our judicial system is a dispassionate objective view on a situation that upholds every individual’s rights until sufficient proof reveals otherwise. The correlations, the sufficient proof, the proper evidence is not in place: solid lines that can accurately draw logic between events have not been drawn. It is apparent that the objection presented by the protest against Pacifica does not have these solid lines of legal right: their argument is entirely moral.
And, unfortunately for the protest, having moral opposition to violence or hate or assault or threat has no legal bearing. If the Anti-Hate Task Force wants to do good for this campus they will stop protesting the values explored in Pacifica, and instead look for evidence that the proverbial gun was placed in the proverbial hand. They should be looking for evidence that the organization is instructing violent behavior, which is much different than condoning or housing it. They should be looking for evidence that the “reasonable man” should not be allowing proven dangerous figures an audience by conducting background checks and historical checks. They should be looking to prove the immanency of the feeling of threat. None of this has happened: what has happened is blindly correlating specific events to the organization. Until the means of proof are explored by this protest, I, as well as any upstanding legislative body, will not support the protest. I do not even know if sufficient evidence exists in the world to correlate the organization with the actions, but searching for the legal means is certainly going to lead to a much better assertion against Pacifica than “I hate racism.”
If the issue the protest has with Pacifica Forum is truly violence, then I see nothing wrong with the concept of legally removing violent persons and disallowing them from campus, monitoring the group for who they invite to speak, and allowing the group to remain. This effectively solves the “safety issues” that the protest is blindly accusing Pacifica responsible for. But even this concept is one fought against by the Anti-Hate Task Force, which reveals that their affliction with Pacifica is not an issue of safety but simply an issue of disliking their organization. Realists, it is absolutely within the protest’s First Amendment rights to dislike Pacifica, to fight against them with words: to show them their ideologies explored are not recognized here: the socially outcast them. Words have always been the most successful vehicle for combating other words. But disliking the Pacifica Forum, without any sufficient means of proving them legally responsible, is no reason to litigate against them. If litigation occurs without the proof outlined in this article, this University is effectively crossing the line from monitoring (something governmental bodies do well and should do), to segregating. It is time for the protesters to wake up and prove these wrongs: give us all reason to be against the presence of Pacifica Forum instead of simply morality. It is time for the protesters to grow up and understand the ideals that are given to all Americans, even in the face of ideals that you dislike: “innocent until proven guilty.”
If we cannot uphold these laws, if the protest cannot prove these laws, or if litigation is passed against Pacifica Forum without sufficient proof of these laws, then this University has much bigger issues than a couple of alleged neo-Nazis on our campus.