Ray Kelly, State Power, and the Principle of Unfettered Free Speech

Since news broke last week that Ray Kelly, the New York City police commissioner (or “Top Cop” as media sometimes affectionately put it) was prevented by protesters from delivering an address on “proactive policing” at Brown University, a debate has raged on what I’ll tentatively call the “Left Twittersphere” about the propriety of the protesters’ actions.

Detractors such as Richard Yeselson allege that protesters behaved abominably, undermining the principle of “free speech” and evincing the very authoritarian mindset they claim to abhor in Kelly. Defenders such as Jesse Myerson have pointed to the virtue in protesters making clear “that Ray Kelly and others like him cannot expect to speak at Brown University and be treated with respect.” There are a number of arguments swirling around, and for now I just want to make one brief point.

Part of the Yeselson critique goes that by quashing Kelly’s speech, protesters denied fellow students and community members the opportunity to vigorously question Kelly and subject his views to the rigors of reasoned inquiry — to counter Kelly’s speech with their own superior speech. This had the perverse effect, asserts Yeselson, of engendering sympathy for Kelly.

Let’s say this is the ultimate reason one objects to the protest: it backfired, and Kelly actually benefitted. In that case, let’s imagine a universe in which it has been conclusively demonstrated that the protest did not backfire, and instead produced some indisputably good social outcome or outcomes, like a shift in public opinion against Kelly, marginally greater stigma on Kelly himself, etc.

Remaining in this theoretical universe, if one still objects to the protest, then one’s support or opposition must not hinge on whether a social good was produced, but on some other factor. Indeed, Yeselson has suggested that preserving unfettered “free speech” ought to be the overriding concern; any action which violates that principle (such as shouting down Kelly) is unjustified whatever the action’s other consequences.

Reasonable people can agree that Kelly is a bad actor, yet differ on what should be of paramount concern: producing a good social outcome, or preserving the principle of unfettered “free speech.” Personally, in most all instances, I would come down on the side of preserving the principle of unfettered free speech. However, in the case of Ray Kelly, I think there are some uniquely compelling reasons to instead prioritize producing good social outcomes, even if that requires violating the free speech principle. These include:

1) Kelly wields state power. If he were just some layperson advocating heinous policies, then shouting him down would likely be unjustified under any circumstances. But Kelly possesses the power to act on that advocacy, having done so quite ruthlessly for 12 years. To illustrate the dangers of embracing the “shouting down” tactic, Yeselson has repeatedly cited the example of self-appointed arbiters of free speech shouting down the great left-wing critic Theodor Adorno at German universities. The obvious and crucial distinction, however, is that Adorno wielded no state power, meaning the justificatory bar for quashing his speech would be much higher than the justificatory bar for quashing Kelly’s speech.

2) Kelly not only wields state power, he wields greater state power than virtually anyone else in the world. That is not an exaggeration. The NYPD — a “military” organization, as Mike Bloomberg infamously described it — is by far the largest police force in the U.S., and the expansion of its powers under Kelly’s rule has been inconceivably massive.

3) Kelly has largely evaded public opprobrium for his unthinkably bad acts. The stop-and-frisk regime at its peak constituted perhaps the most egregious large-scale systematic violation of human rights in the domestic U.S., and Kelly was its architect and staunchest defender. Then, of course, there is the blanket surveillance of Muslims, flagrant first amendment infringements — his list of abuses is virtually endless.

If there are to be any circumstances in which producing a good social outcome should trump preserving the principle of unfettered “free speech,” Ray Kelly coming to campus for a talk on “proactive policing” is surely one of them.

Now, in the real universe, it is difficult to demonstrate with absolute certainty that good social outcomes were produced by the protest. But whatever the other consequences of the protesters’ actions, it’s plainly true that they sparked debate over whether Ray Kelly ought to be allowed to speak unhindered on college campuses. Officials on other campuses will likely take the events at Brown into account when considering whether to invite Kelly to speak. Kelly is now the type of person that this sort of thing happens to. He now bears a marginally greater stigma. Those are good social outcomes, I would contend, and may well justify a one-time abridgment of the principle of unfettered “free speech.”

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