University of Wisconsin mandates punishments for violating free speech

April 10, 2020 • 10:30 am

I have mixed feelings about this report from The Cap Times of Madison, Wisconsin, because while the University of Wisconsin’s (UW) regents seems have taken the issue of students disrupting free speech seriously, I worry about the regents (the University’s governing board) mandating punishments for a single student misbehavior when it doesn’t do that for other behaviors. On the other hand, many universities don’t take disruption of free speech seriously, don’t punish disrupters, and, in fact, in some places students demand that they not be punished for such disruptions.

Click on the screenshot to read:

What happened is that on April 3, the Board of Regents of the University of Wisconsin voted (it’s not clear what the vote was) to change the University of Wisconsin’s administrative code to require mandatory punishments for students who have disrupted the free speech of other people. “Free speech” is not defined, nor is “disruption”, which is why some people have objected, but I don’t much care about definitions, since the punishments will be adjudicated by formal boards convened by the University,—the same process that happens elsewhere. (The University of Chicago has also said it will punish students who disrupt free speech without more specific definitions.)  Since UW is a state school, “free speech” must follow the courts’ guidelines for application of the First Amendment, and it’s not that obscure what “disruption” means. It could be physically preventing speakers from speaking, harassing them within the venue, blocking entrances to buildings, making noise during speeches, and so on.

Further, the punishments, as is proper, won’t kick in until a student disrupts others more than once. The regents’ rules start with a warning at first, and then a hearing after the second violation, which could lead to at least a semester of suspension. If you engage in a third incident, you’d be expelled for good.

What bothers me about this rule is that it appears to be a completely Republican initiative, and I wonder why the Left, which has traditionally sided with free speech, is opposing it. In fact, civil liberties organizations have opposed this proposal, which has been kicking around Wisconsin for years. A similar bill passed by legislators in 2017 (but which apparently died in the the state Senate) was opposed by the American Civil Liberties Union because, they said, it would have a “chilling effect” on free speech because protesters would be unsure about what forms of protest violate the code. That, to me, seems a bit extreme, since it’s well known what kind of peaceful protests are considered legal.

According to the article above, people had other reasons for opposing the regents’ recommendation:

One commenter said the rule would have the opposite effect and chill free speech, intimidating “students from protest policies that could be detrimental to campus life,” according to meeting materials. Another said that it removes individual schools’ freedoms, “eliminating any autonomy that each campus currently has to adjust for the different learning and social environments present.”

But some of the opposition seems wonky. From another article on the same site published in October:

Regent Ed Manydeeds spoke against the amendment at Friday’s Board of Regents meeting, held at the University of Wisconsin-Superior. As an attorney who has vowed to uphold the Constitution, he said, “it’s a very hard road to go down” to punish young people for saying things they have the right to say. Manydeeds was one of Gov. Tony Evers’ first appointees to the board in April.

This is wrongheaded. The students don’t have a “right” to disrupt others’ speech. They can “say the things they have the right to say” without shutting other speakers down. In fact, Manydeeds’s argument is self-refuting, since the protected speakers also have a right to say what they want to say.

It is distressing that, as advocates of free speech, we “hard liners” are aligned more with Republicans than with Democrats. As I noted, Democrats are the traditional defenders of free speech. The reason Republicans are behind such initiatives is largely because, since most college campuses are liberal, it is conservative speakers who are more often disrupted or shut down.  And Republicans may have other motives as well.  But I cannot side with those on the Left who want to limit or curtail speech, or who favor initiatives allowing others to shut down or disrupt speech of any kind without sanctions.

At any rate, this new rule may be moot, for the resolution apparently must be approved by Wisconsin’s governor. But Governor Tony Evers is a Democrat, and his spokesperson said that he won’t approve the plan.

So the upside of this resolution is that it formalizes a way to prevent disruption of free speech. The downside (besides the objection that the resolution doesn’t define free speech or disruption, which I don’t see as serious arguments) is that it takes the power away from local administrators to customize their policies.  As a UW math professor noted:

Even if speech disruptions are to be considered an offense, [Jordan] Ellenberg said, administrative decisions to penalize a student should be made locally, not by the board. “Just as an administrative matter, that makes no sense to me,” he said.

The problem is that few colleges seem willing to punish disruptors. There are reports that about 60 Middlebury College students were punished for deplatforming Charles Murray in 2017, but the punishments were apparently not severe (no suspensions or explusions, and no clarification of what punishments were levied, despite physical attacks on Murray and his host). Few colleges have risked specifying the nature of punishments for disrupting free speech, though the University of Chicago has mentioned an escalating system similar to the one proposed by the UW regents.

So I’m a bit ambivalent about this, but do think that colleges need to specify that disruptors will be punished. In fact, I think a module on free speech should be a part of every entering student’s program of college orientation, just as new students are now inundated with modules about sexual harassment, hate speech, safe spaces, and so on.

Why don’t we vote?



16 thoughts on “University of Wisconsin mandates punishments for violating free speech

  1. I voted “no”. As a Wisconsinite I have EXTREME distrust of the motives here. What’s happening, IMO, is that right wing politicians are exploiting a failure of the left. That failure, of course, is the willingness to support “deplatforming” and other threats to free speech. The argument I’ve tried to make to my left-side compadres is that if you go down that path you will find yourself being limited by the right wing. Wisconsin Republicans have zero interest in democracy, let alone free speech. But they know very well how to exploit an opportunity to advance their agenda.

    1. I understand both sides (yes and no votes) and I’m with you on the mistrust of motives, but the rule seems defensible in itself. I’m not a Wisconsinite so haven’t looked as closely as you, but the rule seems to say that if I have an xyz club at UW and you don’t like it, you can protest as loudly as you like in an adjacent public space, but you cannot come in, disrupt our meetings, and prevent us from doing business. The board’s immediate intent might be to protect right-wingers, but when the tide turns, doesn’t it protect left-wingers as well? (I think you and Jerry and I would all agree that if the left doesn’t want to cede the “free speech” issue to the right, they need to quit attacking free speech with ludicrous claims about how dissenting speech is “harmful,” etc. We’ve handed this one to the regents, as you point out, by our own failure of spine.)

  2. I really don’t like mandating punishment, such mandates always result in unintended consequences. However, making clear that disruption is subject to punishment seems to be a good idea. The effect would depend on the implementation. Your last paragraph summarizes just about where I am on this.

  3. I’m a “yes.” I’m all in favor of protest, but for it to make sense both the voice of the protestor and the voice of the one being protested must be heard. And it seems forms of satire and protest that still allow both voices to be heard are not subject to the rule. Most of all, though, I miss the days when liberals were the ones fighting AGAINST shutting down free speech; fighting AGAINST sorting, judging, and voting for people based on skin color or sex organs; and fighting AGAINST using tribal rather than universal standards of truth and justice. How things have changed!

  4. I vote for your introductory course suggestion. 🙂

    I’ll let the Wisconsonites decide whether they think the net gain of protections for speech outweigh any hidden costs associated with a right-wing hidden agenda or, let’s call it, biased implementation. I think that will depend a lot on local politics and Uni administration which I know nothing about.

    What I would say about such concepts is that I hope they don’t try and implement some sort of one-size-fits-all solution. There’s a big difference (IMO) in the intentional disruption caused by a nonviolent sit-in, and the intentional disruption caused by threatening violence, vandalizing school or other peoples’ property, etc. I think there should be some room for non-violent disruption. After all, disruption is part of the point – the primary way the minority gets the majority to pay attention to some issue is to stop them from being able to ignore the protestors. To use an historical example, you don’t get white folk to think about racial segregation at a Wollworths counter unless you sit at the counter against the rules, and discomfit any white folk who want to sit there but don’t want to sit next to blacks. Consider: had MLK’s protests never occupied such seats, never discomfited the whites who came in just to get a meal, would they have been effective? Probably not as much.

    So, what do I mean by “some room for non-violent disruption”? Well, I’d say let’s think about punishments other than expulsion. Heck, even a night in jail might be better than that. We want the cost of non-violent disruption of optional events (not classes) to be such that it’s a serious decision, such that students don’t use it for trivial matters. But (IMO, and it’s just my opinion, nobody else’s), we don’t want it life-cripplingly high to the point where we shut down peaceful protest movements altogether. And IMO, preventing someone from getting their degree or kicking them out midway is a pretty crippling punishment.

  5. I voted “no.” I think students who prevent others from exercising their free-speech rights should be punished. But I’m against mandatory punishments in principle (including, for example, mandatory-minimum sentences in criminal cases).

    Plus, the standards for determining “disruption” seem to me sufficiently ambiguous as to invite arbitrary and capricious enforcement. Students protesting others’ speech have First Amendment free-speech rights of their own.

  6. Given that the “Free Speech” module is likely to be taught by the same Diversity, Intersectionality, and Equality (D.I.E.) squad as the sensitivity training, perhaps it would just be cheaper to see if a representative of the Castro regime would volunteer to educate freshmen on the delicate balance between free speech and equality in Cuba.

  7. I am sure that I don’t understand the conditions here. Why the state legislature is involved or required for the school to enact rules governing the students of the school? Does the state control all aspects of the school in Wisconsin?

    If we can separate state government from school government/operation it would seem the school can make whatever rules they want. Now, if a student affected by the rules takes his argument or case to the courts, then school rules might be affected by “law”.

    Free speech is part of the constitution just as other parts of the Bill of Rights are and they generally mean to protect the people from restriction of the citizen’s free speech by the government. It seems the school is simply attempting to protect the free speech at it’s institution from interference and is making some rules to ensure this. Now, if someone does not like the rules they would need to take their complaint to court.

  8. Daedalus mourns: “I miss the days when liberals were the ones fighting AGAINST shutting down free speech”. What has happened is that the Left (conventionally misidentified with the term “liberal”) has become largely fused with inheritors of the Weather Underground mentality of the 1970s. The latter kept awarding themselves the Ho Ho Ho Chi Minh Guerilla Activity Medal for big-talk, and for breaking an occasional shop window, following the doctrines of Marxism-Leninism-exhibitionism. Their contemporary acolytes act out the same mind-set, without the Marxism-Leninism part.

  9. I voted “Yes.”

    ” . . . opposed by the American Civil Liberties Union because, they said . . . protesters would be unsure about what forms of protest violate the code.”

    I wonder if ACLU proceedings have ever been disrupted by protesters. Did the ACLU respond with a beneficent, radiant countenance?

    Maybe protesters would consider applying to others the standard they themselves surely would want for themselves – a reasonable expectation not to be interrupted/disrupted.

    If penalties are not to be assigned, then perhaps merely asking protesters to be nice will suffice, eh?

  10. I vote no. Determination of punishment should be case by case. Anything else can produce injustice.

  11. If venues pay for speakers,security, etc, then they should be able to sue for compensation if talks are disrupted.

  12. I’m on the fence with this one, there’s a difference between standing up at the back of the room with a sign, use of noise be it organized chanting or using a noisemaker such as an air horn to drown out the speaker and manhandling the attendees.

    It has to be judged on a case by case basis, but it’s the vague definitions that’s the real issue, they can lead to all kinds of trouble.

    1. The vague definition, and the Republican origin of mandates like this, probably mean that there will indeed be abuses and trouble. But many academic administrations have brought this trouble on themselves, through their failure to enforce the most elementary codes of civil behavior on “woke” disruptors in one case after another. If universities were as flaccid in enforcing driving rules, agencies of society would have to step in and enforce traffic citations.

  13. So in open forums anyone can shout down anyone at anytime? This is free speech?
    I am glad that the English system of Robert’s Rules of Order are accepted by most decent systems of dialogue. That allows a significant (more than one) minority to be decently heard, and then if it is NOT unanimous, a vote can determine what follows. Of course, there is the % to be determined, which can range from
    0 to 100% depending on the whim of the discussion or history. This should prevent any windbag who spouts off without reason!

    1. ”English system of Robert’s Rules of Order are accepted by most decent systems of dialogue”

      You mean like they do it in Parliament?

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