By Jesse Singal
Sunday, November 12, 2017
The existence of white nationalist Richard Spencer, and
other bigoted far-right figures like him, poses a genuine challenge to public
universities. Conservative student groups invite these sorts of figures to
speak fairly often, and the courts have consistently held that public
universities can’t really interfere with such events. So-called viewpoint
discrimination is, even when the viewpoint in question is odious, almost always
prohibited on public university campuses on First Amendment grounds. (Private universities
are a different, somewhat more complicated matter.)
This is a firmly established, uncontroversial reading of
the law — a consensus among both legal scholars and the organizations that
study this issue the most closely. “Hate speech is protected speech,” notes the
Anti-Defamation League. “A university’s ability to limit a speaker based on the
content of the speaker’s message is extremely limited.” In its guide for
students hoping to respond to the alt-right’s recent mobilizations on college
campuses, the Southern Poverty Law Center explains that “[a]s outrageous as
their comments may be, they are protected by the First Amendment, except in
extreme cases in which a speaker incites violence, for example … No matter how
repugnant one may find a speaker’s views, as long as the college has a policy
of allowing student groups to invite people from outside their campus to speak,
university administrators cannot pick and choose based on the views the speaker
holds.”
It isn’t fun to have a white nationalist spew racism on
your university campus. It upsets students, reflects poorly on the university
itself, and sometimes draws far-right activists who can be dangerous and
violent (as well as counterprotesters, who, while in no way morally equivalent
to white supremacists, can also be dangerous and violent in their own right).
Because of all of this, the question of how a university, or student groups,
should respond to a Spencer invitation is fairly complicated. Depending on
one’s politics and assessment of the situation, one could conceivably argue
that a university should simply deny the speaking request anyway; or students
should try to physically prevent the event from occurring; or allow the talk to
proceed but schedule counterprogramming dedicated to fighting bigotry; or
ignore the speaker and hope the media does the same. More broadly, one could
also argue that it would be worthwhile to launch an effort — one that would
surely be time and resource-intensive, to be sure — to get the courts to
eventually redefine things so that speakers like Spencer don’t have a right to free speech, perhaps by carving out in court
rulings some sort of First Amendment exception for “hate speech” (many liberals
seem to believe such an exception already exists, but it doesn’t).
None of these approaches is perfect and all have
downsides, in some cases potentially severe ones. In my view, for example, it
isn’t worth it to ask students to risk arrest or physical harm just to
physically prevent Spencer from speaking, when 20 minutes later he could post a
video giving the exact same speech and draping himself in sanctimony over
having been “censored” (though I understand that there are good-faith
disagreements with this position, and that many students find it understandably
frightening and upsetting to have someone like Spencer on campus). But at least
these views acknowledge the simple fact that as far as American courts are
concerned, in this sort of situation, Richard
Spencer has a right to speak on a public campus he has been invited to.
Unfortunately, there has emerged a subgenre of
left-of-center punditry which, rather than grapple with the complicated
ramifications of this reality, instead pretends difficult free-speech questions
can be “resolved” by simply swapping them out for a set of different, much less interesting questions. This commentary focuses
on questions like “Is Richard Spencer a bigot?” (yes) or “Is bigotry morally
acceptable?” (no), and “Does Richard Spencer engage in what could be considered
‘hate speech’?” (yes). But what you never learn from reading these pieces is
that none of these questions has any bearing on what a real-life public
university should do when real-life Richard Spencer is scheduled to give a
real-life talk. Distressingly, even academics who should know better are
playing this game.
An article that recently ran in Vox headlined “There is
no 1st Amendment right to speak on a college campus” is a stunning example.
Written by Robert C. Post, a legal scholar (!) at and former dean (!!!) of Yale
Law School, the article simply doesn’t acknowledge the very real legal
landscape that dictates the terms of this debate, and instead, in a woolly and
morally righteous way, takes the reader on a meandering tour of various non
sequiturs pertaining to Robert C. Post’s personal values and philosophy and
opinions on what universities are — none of these thoughts and opinions having
much to do with what a public university in the crosshairs of Spencer and his
ilk might actually be able to do.
In a section subheadlined “There are many arenas in which
all ideas are not considered equal” — whoa! — Post points out that “[w]e do not
apply to doctors sued for malpractice the core First Amendment doctrine that
‘there is no such thing as false idea.’” Then he notes that universities have
an obligation to teach their students stuff that is true, and that they judge
faculty members on the quality of their ideas. Even setting aside the fact that
people disagreeing about what’s true is one of the principle reasons the First
Amendment (and universities!) exists, none of this has anything to do with
campus-free-speech issues as they exist in the real world. Most bizarrely, Post
argues that “universities can and must engage in content discrimination all the
time. I subject my students to
constant content discrimination. If I am teaching a course on constitutional
law, my students had better discuss constitutional law and not the World
Series” (emphasis his). But when people reference “content discrimination,”
they are very obviously not talking about a professor keeping a class on track.
They are talking about areas in which First Amendment law, as interpreted by
the courts, is applicable — one of those areas being the question of whether
administrators can step in to block controversial or bigoted speakers invited
by student groups.
Post continues (unfortunately):
Another “bedrock principle” of the
First Amendment is that “the government may not prohibit the expression of an
idea simply because society finds the idea itself offensive or disagreeable.”
Yet no competent teacher would permit a class to descend into name-calling and
insults. Even if the object of classroom education is to expose students to
ideas that they might find disturbing or threatening, it is nevertheless
inconsistent with learning for students to experience this encounter in
settings where they are personally abused or degraded.
No one anywhere is claiming that a teacher maintaining
control of a disorderly classroom has anything to do with the First Amendment.
But again, that question — What should universities do about Richard Spencer? —
is difficult and involves trade-offs and the morally unsatisfying reality that
the law says Spencer gets to speak. So why not swap it out for a much more
obvious question: “Does the First Amendment prevent professors from maintaining
order in their classrooms?” (Thankfully, it does not.)
The article goes on for a while in a similar vein. Post
eventually gets around to campus speakers, but things don’t get any less
strange:
As universities clarify why they support student-invited outside
speakers, they will at the same time clarify the circumstances in which the
communication of such speakers can be regulated. I very much doubt that the
First Amendment rights of invited speakers will be of much weight in this
process. Instead judgment will turn on how supporting or not supporting a given
speaker, or a given policy of supporting student groups to invite speakers,
fulfills the articulated mission of the university [emphasis his].
It’s unclear whether Post is talking here about public or
private universities, because he never even makes that vital distinction. But
still — huh? Post, a legal scholar,
is suggesting that university administrators should get to determine whether
speakers invited by students fulfill the “articulated mission of the
university”? What does this mean? What if students disagree with that mission
and want to express that disagreement? The potential for abuse and confusion in
such a system is, on its face, rampant. It’s also strange for a legal scholar
to say that he “very much doubt[s]” that the First Amendment applies in a situation
in which the courts have loudly and repeatedly stated that it does.
Post’s article may be one of the worst in this subgenre,
particularly given the author’s credentials (to its credit, Vox also ran a much
saner piece by another legal scholar on the same subject at the same time), but
it’s just one of many deeply bad, recent left-of-center takes on free speech.
It’s understandable why the subgenre is peaking at the
moment: After all, white nationalism is scarily salient, and many of the same
people who support it do so under the guise of pretending to be “free-speech
activists,” and so on. More broadly, both the right and the far right have
generated scads of hypocritical, ill-thought-out opinions on free speech. In
one breath they’ll complain about how campuses are stultifying indoctrination
camps where no one can openly challenge anything, and in the next they will
call for a blanket suspension of “social-justice courses” on college campuses,
without even bothering to define that phrase clearly. For every bad free-speech
take from the left that’s out there, it would be easy to find several from the
right.
But progressives and leftists should be better than that:
Just because those on the right, some of them very literal Nazis and white
nationalists, promote their ideology by contorting free-speech arguments into
pretzels doesn’t mean those who oppose them should follow suit. Unfortunately,
this conversation is getting so muddled and confused, and the ratio of
righteous anger to actual knowledge of how the First Amendment works so high,
that it’s getting harder and harder to even understand the arguments being
made.
Major outlets are publishing arguments nominally about
free speech that don’t even have a coherent point. Here’s Ulrich Baer, an NYU
professor of German and comparative literature, as well as a vice-provost
there, on the New York Times website
back in April:
The idea of freedom of speech does
not mean a blanket permission to say anything anybody thinks. It means
balancing the inherent value of a given view with the obligation to ensure that
other members of a given community can participate in discourse as fully
recognized members of that community. Free-speech protections — not only but
especially in universities, which aim to educate students in how to belong to
various communities — should not mean that someone’s humanity, or their right
to participate in political speech as political agents, can be freely attacked,
demeaned or questioned.
The shift from the first half of the paragraph, in which
Baer purports to be stating what freedom of speech “means” (and offers a
description that is quite wrong, legally speaking), to the second, in which he
discusses what free speech “should” mean, is subtly revealing: Again, the
author is simply swapping out a set of complicated, tough questions guided by
current jurisprudence for a far easier one: “What would I, Ulrich Baer, like
free speech to mean, setting aside everything the law actually has to say about
this question?” In real life, of course, all
sorts of viewpoints that could be fairly described as dehumanizing others —
not just Richard Spencer’s, but even, for example, opinions about wonky zoning
decisions that could lead to a neighborhood’s residents being evicted — are
very much protected speech. What good does it do anyone to write a column in a
major publication saying, in effect, “I wish ‘free speech’ meant a thing
different from what it really does” — especially when you don’t go on to
actually lay out that view with any complexity, or to grapple with how you
would square it with the law as it stands?
It’s no surprise that these half-baked free-speech takes
often swing the door open to outcomes that many progressives would find
outrageous. Post apparently wants campus administrators — a famously
corporate-minded, risk-averse group — to tell student groups who does and
doesn’t get to invite speakers based on vague criteria pertaining to a
university’s values or mission. Good luck getting Black Lives Matter speakers
onto certain southern campuses. Baer, similarly, seems to think that speech in
which “someone’s humanity, or their right to participate in political speech as
political agents, can be freely attacked, demeaned or questioned” is a
separate, not-quite-free category. The more hard-line factions of the
Palestinian liberation movement dehumanize Jews and Israelis. Would Baer be
happy with an outcome in which Palestinian activists were banned from speaking
at a public university on these grounds? For that matter, should Zionist activists
be banned because hardline Zionists have the exact same tendency, just pointed
at Palestinians and Arabs instead?
The point here isn’t to offer trollish hypotheticals —
and I would argue that the specter of powerful figures banning BLM or
Palestinian activism is quite real, anyway — but rather to point out that when
you don’t talk about free-speech issues in a rigorous way, when you chase
ill-defined terms and moral feel-goodery rather than something more concrete,
you will inevitably wander into a tar pit. Over and over and over.
The biggest such tar pit I have come across recently
appeared in a Pacific Standard
article by Noah Berlatsky, who wrote about a late-September incident at the
College of William and Mary in which BLM protesters were able to scupper an
ACLU event by loudly protesting inside the venue. This led to a wave of
articles denouncing the shutdown, and Berlatsky’s article serves mainly to
denounce the denouncers for, in his view, misunderstanding what free speech is.
[T]he incident at William and Mary
does not directly involve the First Amendment; the protesters who interrupted
the speech are not deputized government agents. “We’re talking about two people
in the same space in the same moment who are both trying to speak, and they
can’t both speak at the same time in the same place,” Angus Johnston, a
historian of student activism at the City University of New York, tells me.
Civil liberty organizations often don’t have a lot to say about that situation,
he adds, while individuals generally “have a moral intuition in that context
which is ambiguous and complicated.” Free-speech principles are relatively easy
to apply when the government tries to shut down an individual’s expression. But
when you simply have two people talking at once, civil libertarians don’t
necessarily have a clear way to choose between them.
Johnston points out, for example,
that if a street preacher were haranguing passersby, and a group got together
to shout him or her down, most people wouldn’t see that as a problem.
Institutions may have rules to grant invited speakers more protection, and may
choose to have security remove hecklers. “It’s more of a ‘being gracious to
your guest’ kind of an argument, being gracious to the audience, letting the
audience hear what they came to hear,” Johnston says. “But I’m not sure that
that’s a free-speech argument.”
The level of wrongness contained in these two paragraphs
is astounding. The wrongness starts with the first-sentence claim that “the
incident at William and Mary does not directly involve the First Amendment
[because] the protesters who interrupted the speech are not deputized
government agents.” But BLM exercised what is known as a “heckler’s veto” —
disrupting an event so much that it cannot go on — and as Zach Greenberg of the
campus-free-speech organization the Foundation for Individual Rights in
Education explains on a page dedicated
to this important concept, the courts have ruled that such vetoes do, in
fact, violate the First Amendment, whether the disruption is merely verbal (as
it was in this case) or physical:
[T]here is no First Amendment right
to shout down a speaker. If a governmental actor, such [as] a public
university, sides with the heckler by canceling the event or refusing to
protect the speaker against use of force, it has failed to uphold the speaker’s
free speech rights. In Forsyth County v. Nationalist Movement (1992), the
Supreme Court held that the First Amendment protects “[t]hose wishing to
express views unpopular with bottle throwers … Speech cannot be financially
burdened, any more than it can be punished or banned, simply because it might
offend a hostile mob.”
The College of William and Mary is a public institution,
so all of this stuff applies. Later on in the above excerpt, Johnston explains
that in these cases, “We’re talking about two people in the same space in the
same moment who are both trying to speak, and they can’t both speak at the same
time in the same place.” Maybe this is about civility or manners, but Johnston
is “not sure that that’s a free-speech argument.” I promise you, this is quite
wrong, and is a very easy thing to Google!
But again, it’s that same formula: Johnston is apparently
uninterested in answering questions pertaining to this actual incident and how
the law would view it from a free-speech perspective, so instead he swaps out a
different, easier question: “Setting aside, you know, the well-defined legal
aspects of this, what do I, Angus Johnston, think about it?” (For those who
want to know more about the heckler’s veto, which as it turns out is a very
interesting subject, Ken White has a very
good explainer on his legal blog Popehat.)
And yet again, this sort of meandering shruggery leads us
to a dark place: Johnston very much seems to be endorsing the view that on a
given campus, whoever can muster the muscle to shut down an event gets to
determine the bounds of acceptable speech. This is a pretty bad opinion. Not to
beat up too much on the South, but there are many southern campuses that would
benefit greatly from more pro-choice speakers and events, and in Johnston’s
model, it’s fine for the Campus Crusade for Christ to march in and protest
these events until they get shut down. After all, “We’re talking about two
people in the same space in the same moment who are both trying to speak, and
they can’t both speak at the same time in the same place.” If only there were
some system that guaranteed the rights of a speaker at a given event …
All of these bad takes arise from the same place: At
root, people deeply want it to be the
case that Richard Spencer doesn’t have a right to speak in public, let alone on
public university campuses, so they contrive really silly reasons why, in their
imaginary world, actually he can’t.
Nor do some left-leaning pundits and academics want it to be the case that
sometimes a protest put on by a sympathetic group like BLM really does violate someone else’s free-speech
rights. So these pundits and academics just make something up about how “No,
no, no, you see this isn’t really
about free speech” — when it very clearly is!
It doesn’t help students to falsely tell them that
Richard Spencer doesn’t have a right to free speech on public campuses — when
the law says otherwise. And it doesn’t help society to spread further
misinformation about the First Amendment — a widely misunderstood topic as it
is. If you care about fighting hateful ideas, you should make arguments that
are at least a little bit connected to reality.
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