Jonathan Turley is a prominent attorney and professor of law at George Washington University Law School. He also writes a popular legal blog that often deals with free speech. His latest piece, with the headline below, deals with a question that’s occupied us quite a bit: what limitations, if any, should colleges put on freedom of speech?
I’ve been a hard-liner on this issue, insisting that colleges and universities should hew strictly to the First Amendment as interpreted by the courts, which of course means that you can pretty much say what you want unless it constitutes defamation, instigates immediate and predictable violent harm, creates harassment in the workplace, and so on.
But I have found another exception to the First Amendment for speech emitted on campus. And that is an exception widely adopted by universities, including the University of Chicago: the “time, place, and manner” exception, which, in fact, seems to be a legally recognized restriction of the First Amendment. Wikipedia characterizes it like this:
. . . . “The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. . . “The [F]irst [A]mendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired. A state may therefore impose reasonable restrictions on the time, place or manner of constitutionally protected speech occurring in a public forum.”
At the University of Chicago we have time and place restrictions (students can’t protest in an academic building or if it disturbs classes), and there are supposed to be restrictions on manner, too. The most notable of those is the prohibition against hecklers shouting down or deplatforming speakers. This in fact is the violation we talked about Tuesday, when I reported that members of Students for Justice in Palestine had been tapped (not even slapped) on the wrist by a disciplinary committee for deplatorming (shouting down with megaphones) a demonstration by Jewish students last October. While such behavior may be legal in public parks and other such places, universities are allowed to prohibit this kind of “heckler’s veto.” After all, the purpose of a university is to teach and learn, and you don’t learn anything from a speaker if their speech cannot be heard because of hecklers. (I believe Mill mentions this in “On Liberty”.)
This brings us to Turley’s column (click headline below to read it), which recounts an incident of heckling at Tulane University in New Orleans, Louisiana.
It so happens that a speaker was lecturing at Tulane in “an event to foster diversity of ideas and entrepreneurship for New Orleans Entrepreneurship Week.” It also happens that that speaker was interrupted by—you guessed it—a speaker shouting pro-Palestinian and anti-Israeli slogans (wrong time, wrong place, irrelevant speech). And it so happens that, sitting in the audience, was a Tulane professor of national repute, Walter Isaacson, former President of CNN, and then of the Aspen Institute, and of course author of several best-sellers, including biographies of Steve Jobs and Leonardo (the latter my favorite of his works). Isaacson (a secular Jew, I think, though that doesn’t matter) decided to remove the heckler from the room by pushing them (it’s a transgender student using that pronoun) out the door. You can see it the video by clicking on the picture below, which takes you to an Instagram post. The second link in that Instagram post shows the video.
Turley gives the rest of the tale:
Isaacson, who is the Leonard Lauder Professor of American History and Values in the history department, can be shown gently moving MacDonald out of the seats. However, at the door, there appeared more of a brief scuffle at the last moment before the two went out of the frame for a split second. Isaacson is then shown returning immediately. There does not appear to be more than shoving on the video to move MacDonald out of the event.
In its Instagram post, SDS claimed that MacDonald (who identifies as a “them” as a transgender student) was injured: “Isaacson, an audience member, grabbed Rory and cursed at them, battering them and leaving them with bruises on their arms and scratches on their back.”
On local media, MacDonald is shown displaying slight scratch marks.
SDS and other groups have condemned Isaacson.
They have in fact called for Isaacson to resign.
The student shows the damage, which is light but still actionable, I think:
More from Turley:
Technically, shoving can be assault under both criminal and tort law. Certainly leaving scratch marks can qualify as evidence of assault. However, the situation is more complex than some faculty member spontaneously assaulting a student. Any removal of a disruptive protester will involve some firm handling or shoving. Indeed, when a subject resists, this can become a matter of self-defense for security as force is increased. As a subject resists, security is allowed to protect itself with a commensurate level of force.
If security can physically remove a protester (including shoving an individual from a room), the question is whether an audience member can do so. A professor has no special legal status to conduct security or exclude individuals from a public event. What is clear is that this is a function best left to university security. The problem is that security often does not enforce rules against disruptive behavior.
MacDonald was disrupting the event and Isaacson was seeking to remove him. In moving to the door, there does not appear to be anything more than firmly shoving MacDonald. In the final second, there appears to be a more forceful push in the hallway as Isaacson goes back inside. Isaacson can claim that he was protecting himself by shoving away MacDonald at that last minute. He is seen speaking to the student before firmly leading him to the door. Again, the university is investigating. There is no report of a criminal complaint.
If the university is investigating this matter, it should also address why a faculty member felt compelled to perform security at the event. We have seen universities routinely fail to expel protesters interrupting classes and events.
Universities can turn these protests into a type of “heckler’s veto” where speeches are cancelled in advance or terminated suddenly due to the disruption of protesters. The issue is not engaging in protest against such speakers, but to enter events for the purpose of preventing others from hearing such speakers. Universities create forums for the discussion of a diversity of opinions. Entering a classroom or event to prevent others from speaking is barring free speech.
There are two questions here: did Isaacson commit assault, causing actual physical harm beyond just a threat? And, of course, where was security? Turley raises both questions, the first above and the second here:
Tulane clearly failed to protect this event and that led to this “self help” action by Isaacson. If he went too far off camera, there is also a question of why he had to act at all rather than campus security removing such disruptive protesters. This will continue until university administrators have the courage to suspend or expel students denying others the right to listen and speak at events.
But for my own school, this fracas raises a third question: what are schools going to do about this heckling, which clearly violates any free-speech regulations on campus?
Absent enforcement of school rules on such disruptions, there is little hope for the open exchange of ideas and a diversity of opinions on campus. It can unleash a type of tit-for-tat pattern of retaliation as speakers are prevented from speaking on controversial subjects. Our campuses then become little more than screaming matches. The rules of most schools properly draw the line between protests and disruptions. Everyone is allowed to be heard. However, if you enter to disrupt it, you are disrupting free speech.
In such cases, security must be either on the spot or be readily available to remove hecklers, allowing the speaker to be heard. This is exactly NOT what the University of Chicago did when SJP disrupted the Jewish speakers, who had permission to give speeches on the quad. The deans on call simply stood by and did nothing, and when asked to do something, they said they were powerless. The University cops also stood by, and said they could do nothing without the permission of the deans. (This is the same answer the cops gave me when I watched SJP and UCUP illegally blockade the administration building last fall. “We need permission from the administration to take action.” Of course no action was taken, and when I tried to call the administration, nobody answered.) This is an embarrassment to the University, and I trust they’ll inform security and the deans on call to stop deplatforming and heckling. And I hope the administrators in charge of the deans on call don’t sit on their hands when a violation occurs..
As for Isaacson, who looked royally ticked off, I think they could file battery charges against him that would stick. Even if he acted as “mock security,” it seems to me that what he did was illegal. Whether he actually gets charged is another matter. But morally he was in the right, and I applaud him.
Shoot, Isaacson was just acting in loco parentis to the sexless little snot!
Actually, Isaacson is a faculty member at Tulane, so I wonder if he has more authority here that just a bystander would?
Might one be embarrassed to have gone to a protest, received some tiny scratches, and then post photos of myself looking hurt and aggrieved?
Not at all, apparently. Glad he circled it. Should have gone to the hospital and had it properly documented.
That exact phrase immediately occurred to me, too. The student clearly needed a Time Out.
Who goes by “they”, according to the article.
Yes. Security officials should have done the pushing, and Isaacson was probably in the wrong (at least legally).
But does every lecture require a security officer? And if not, do lectures without a security presence take place only at the behest of protestors or hecklers? Is there no recourse, under such circumstances, but to submit to the heckler’s veto?
Seems like this kind of thing is going to happen if administration doesn’t do its job. If they continue to allow this behavior then they are at fault when it escalates.
Your target’s reaction is your real action (Alinsky’s guiding principle to “radicals”).
The reaction is produced by forcing the target into a decision dilemma:
A. Do nothing and look weak
B. React physically and look evil
For the target, they pretty much lose either way. For B, it is exactly the title of the book Beautiful Trouble. And that’s what we see.
The key for Isaacson would have could have should have been to at least recognize that dynamic. Who knows how it could have turned out but the dialectic has ratcheted ahead irreversibly by now.
Note 1: I don’t quote from Rules for Radicals or Beautiful Trouble, but perhaps I ought to get that quote.
Note 2: “DEI” hiring policies (the exoteric sites) have been operating for stochastic entryism – to Include Diverse candidates for administration or security jobs – namely, with favorable political positions to shift outcomes to be Equitable – and that is the result we see here and the other day – the intended esoteric praxis of “DEI” policy.
Also see the Motte and Bailey fallacy or doctrine (Nicholas Shackel, 2005).
The irony (as always) is a transgender person supporting Hamas. Perhaps a personal encounter with Hamas authorities might sway their opinion of the terrorist group. Or maybe they could participate in the next Palestinian gay pride event!
One wonders if that person might have another scratch or two on their arm after that encounter with Hamas.
It is curious that the transgender community along with liberal political groups seem to have seized on this cause, as opposed to all the unprovoked aggressions around the world from Ukraine to Somalia, Syria and Chechnya, Uygur China, etc.
Yeah, I still can’t quite wrap my head around this apparently common bit of insane human behavior. Supporting the very people that would kill you if they could simply for what you are.
It seems apparent to me that HAMAS aligned organizers have been working this angle, infiltrating / influencing activist groups in the West, for years prior to HAMAS’s October 7th terrorist attacks. From one POV it’s a perfect match, a group that has made oppression of a segment of its own members the primary strategy by which it gains wealth and power joins groups that are on a mission to oppose oppression in order to sell and gain support for the oppression narrative they rely on.
From another POV it’s a ridiculous match. Women’s rights, gay & lesbian rights, trans rights, none of them exist or would be tolerated among the group they are so vigorously supporting. HAMAS and the like must be laughing their asses off.
I believe their argument would be that Israel “made them do it”. I don’t agree with it if that needs to be added.
It follows TP’s comments above.
I hope Isaacson sticks to his guns, and doesn’t apologize, or worse, plead guilty to some charge. McDonald is hardly a martyr to the cause. I got worse scratches from my cat last week trying to get him to the vet.
What does the acronym SDS mean here specifically?
“Students for a Democratic Society”
I’ve loved Isaacson’s books and hos actions are understandable and shouldn’t have happened. He should have allowed security to handle this and if there wasn’t then confronted the protester with physical contact.
He will probably be charged unfortunately just like if this happened in reverse.
I watched the video multiple times and I’m not sure Isaacson ever touched the student’s left arm just above the elbow and under his shirt. If such contact did occur it was very brief. I experimented on myself and it took significant pressure from my fingernail to make a similar mark. Issacson returns from the hallway so quickly that it’s unlikely anything significant happened there.
> But morally he was in the right, and I applaud him.
As do I. Situations like this are exactly why Jury Nullification is important. Did he technically break the law? Maybe. Should he be punished in any way? Absolutely not.
Universities need to start arresting and charging these hecklers or the problem is only going to get worse.
Well, universities do not make arrests…but police do. I might have called the police, maybe even 911 if I felt violence was imminent, and bypass campus police and campus admin altogether, as they are demonstrably negligent in protecting the legal/constitutional rights of their students and faculty.
Many campus police are commissioned officers with the power to arrest. I worked my way through two years of undergrad at George Washington U. as a campus cop back in the 80s. Got me free tuition. I had a police commission from the DC police dept. I never actually arrested anyone though.
In today’s world, an event such as this one should certainly have official security. That is the person or persons responsible for preventing or in this case ending a disruption. Lacking security, I believe that a member of the administration or faculty could, acting as an agent of the university, take on the task, if he or she feels qualified of ending the disruption. I think that teachers in K12 have such responsibility. When I was a high school teacher, before students came to school armed, as a competitive weightlifter, I had no qualms about breaking up student disturbances and on the few occasions that I had to act, was quickly joined by a coach or other youngish male teacher. In later years I found myself in public meetings where adult hecklers’ vetoes were active and on those occassions, would appeal to the sponsor or moderator of the event to control it. I would never take it upon myself, either as speaker or audience member, to try to secure these events. So a senior level professor and a college kid falls in between my experiences, but I do find it amusing that a 72 year old gray hair shooed the little shit out with virtually no trouble. In any case the administration is to blame for him having to risk his safety to do it either because they did not require security at the event or security failed to act itself as agent for the university administration.
I’m no lawyer but given that there seems to be a consensus here that the institution is at least partially culpable, I wonder if Isaacson could sue the school and student for violating his right to hear the speech? Maybe somebody here knows, does the right to free speech include by some legally binding precedent a right to hear? I know Christopher Hitchens claimed such a right, but does it exist?
I, a librarian, have been supporting the freedom to read, view, or hear my whole professional life. As far as this freedom being recognized and protected as a right, I’m not so sure. According to this organization, it is a right:
https://uniteagainstbookbans.org/freedomtoread
Stephen, where do you come down on people needing a quiet place to study? I think the days of the library being a mostly quiet place have been abandoned but, I have a friend trying to study for his license renewal (he’s a building inspector) and he’s run into kids running wild all through the library. When he’s asked staff about it he was told, “We can’t say anything anymore”. This is in the Houston area, by the way.
Debi, I’m sorry to learn about your friend’s problem. The library should ensure that there are quiet study spaces within the building. That’s easy to do in a large building, where silent areas can be well segregated from the noisier areas, such as circulation and children’s spaces. The principle of quiet zones still applies to smaller buildings. Every library should have policies on standards of public conduct, which should include guidelines for handling unattended or unsupervised children. The library worker you mentioned can then invoke those policies to maintain order and quiet in the library.
Bringing this principle closer to home, the University of Chicago’s Joseph Regenstein Library, kitty-corner from Jerry’s office, provides a good, scalable model for the designation and regulation of quiet zones. The library has color-coded signs and other visual cues throughout the building that let users know what type of zone they are in.
https://www.lib.uchicago.edu/spaces/
Thanks for replying. I’m encouraged to hear that, at least in theory, the expectation of a peaceful spot in a library is not unreasonable.
For reference, the definitions of different types of “forum” under the First Amendment:
https://www.law.cornell.edu/wex/forums
Einstein:His Life and Universe by Walter Isaacson. One.of.many.masterpieces.by.a.very.talented.author.by.golly.
Boohoo protester gets a “war” wound and proudly shows his pro Palestinian supporters he’s the real deal.
Palestinians are… WTF! Guy with white hair? missile? missile? Guy with white hair??
Suck it up loser!
If the protester or anyone else makes a complaint to the police — the actual ones, not the ones who take orders from deans —, the police will investigate the incident and lay a charge if they think an offence was committed. It is really no one else’s business. No one else’s opinion counts, leastwise the university’s. It would be improper for the police to lay (or not lay) a charge at the behest of the mob. vulg.
If the police do charge Prof. Isaacson with an offence I will contribute to the cost of his defence. “Good trouble” works both ways.
” “Good trouble” works both ways. ”
Hey, “good trouble” isn’t supposed to be used like that! You can only use it the way they say in the grimoires for the right things!
[ stomping feet up and down on the ground in one place ]
/facetiousness
I suppose with the trajectory of things, we will all discover how much we can tolerate before we are forced by conscience to act.
Of course that is the whole point. The protester probably tells himself that his disruption is necessary for whatever reason, but I think he is mostly a Marxist stooge, a crazy person easily convinced to disrupt civil discourse and provoke retaliation.
The top picture shows the right arm being held, the bottom picture shows injury to the left. Self inflicted maybe?
A Holmesian observation.
Other points to consider:
• Photos can be reversed
• right-handedness more likely for self-harm on left side
• “trans” is correlated with self-harm
• “trans” surgery removes skin on the forearm
Pointing out “trans” is relevant in the above because it was part of the whole political point. What is clear is any red marks are to be assumed to originate in the moment of conflict captured in the photo. Maybe Isaacson really did leave the marks as is the assumption for all we know.
I hope that “they” get no loan forgiveness for “their” so-called study.