Category: freedom of speech

Rick Shweder on three kinds of college free speech, and which one should be used

May 24, 2024 • 9:15 am

Rick Shweder is a cultural anthropologist with the title of Harold H. Swift Distinguished Service Professor of Human Development here at the University of Chicago. Like many of us, Rick is involved in trying to preserve and teach the Chicago Principles of Free Expression as well as the Kalven Report.

His latest effort is a well-written piece for the City Journal about the various types of “free” speech available.  He’s concerned mostly with what goes on in private universities like ours, and his message is that both public and private universities should adhere to pure First Amendment free speech, which, in colleges, comes with court-approved “time, place, and manner” (TPM) restrictions. But be aware that his discussion is centered on private universities.

Click below to read:

First, here are Shweder’s three speech options that, he says, are available to private colleges (his words are indented):

Both Columbia and Harvard are private institutions and can set their own speech policies. Such schools, broadly speaking, have three options in crafting their codes. First, they can provide students with speech rights mirroring those guaranteed by the First Amendment. Second, they can prohibit “offensive” or otherwise unwelcome speech. Third, they can require academic manners of speech on campus. Any private institution must choose from, or strike a balance between, those three options.

I’ll take the options separately:

The pure free speech option:

The first option, which we’ll call the “First Amendment model,” is the preferred speech policy at most secular private universities in the United States. That policy protects (and restricts) campus speech much the way our courts protect (and restrict) speech in the public square. Harvard president Claudine Gay likely had this model in mind when she refused to give a categorical “yes” or “no” answer to the genocide-advocacy question.

. . . and how it’s supposed to work:

My University of Chicago colleague, Geoffrey Stone, author of “The Chicago Principles,” explains why a First Amendment–embracing private-university president may have struggled to answer Stefanik’s question:

If the University embraces the principles of the First Amendment for public speech, then advocating the genocide of a group in public discourse could not be punished or prohibited unless it creates a clear and present danger that the conduct that is advocated would in fact occur. That is the lesson the [Supreme] Court learned from decades of allowing speech to be prohibited if it advocates unlawful conduct (such as refusing to comply with the draft or attempting to overthrow the government). The real harm from the advocacy of genocide is not that it is likely to cause genocide, but that it is seen as offensive and hurtful. That is not a sufficient justification for prohibiting speech in public discourse. Another concern is that it might cause people to discriminate against or even physically harm Jews. But that doesn’t satisfy the demands of the First Amendment any more than would public speech accusing people who perform abortions of being murderers.

First Amendment principles distinguish between advocacy (which is constitutionally protected) and likely incitement of an immediate and grave harm (which is not), and between verbal harassment directed at a particular group (which is constitutionally protected) and verbal harassment directed at a particular individual (which is not). If Harvard were committed to upholding the First Amendment model (which is doubtful), Claudine Gay would be right to say that context matters in determining whether a call to genocide constitutes prohibited speech.

No university in America today, however, fully embraces First Amendment principles. For example, heckling and shouting, provided it does not deprive anyone of their right to speak, is constitutionally protected speech in the public square but is banned at most private universities.’

Note, however, that courts make a distinction between what’s said in the public square and what’s said on college campuses, so that heckling and shouting and disruption can be banned in even public universities without violating the First Amendment.  The University of Louisville, a public university in Kentucky, emphasizes that TPM restrictions apply to their campus to preserve freedom of speech and do not violate the Constitution:

The First Amendment requires that the government not discriminate against particular viewpoints. The Supreme Court has, however, upheld the idea that speech may be regulated under “Time, Place, and Manner” regulations. The burden of such regulations is still fairly high, requiring the government to show that their restrictions on speech are (1) content neutral (that the government does not outlaw content specific viewpoints), (2) narrowly tailored to serve a governmental interest (i.e., cannot be overly broad to regulate more than what is necessary to achieve government interest like, for example, public safety), and (3) ample alternative means to express ideas. At UofL, for example, the time, place, and manner regulations are a reflection of the value of encouraging diverse ideas, community engagement on campus, and academic freedom while also preserving interests including campus safety.

Students or student organizations have the right of freedom of expression to the extent allowed by law. The University reserves the right to make reasonable restrictions as to time, place, and manner in certain situations as outlines to the Code of Student Rights and Responsibilities.

The government interest in (2) above is in preserving freedom of speech itself by not allowing unwarranted disruptions that could impede discussion.

The prohibition of “offensive” speech.

The second policy option, which acknowledges private schools’ right to regulate the content of on-campus speech, goes beyond most schools’ bans on heckling. This option, which we’ll call the “regulatory approach,” aims to restrict speech that is repellent, alarming, or disparaging of a particular group. Shafik’s recent congressional testimony, in which she endorsed penalties for hurtful or repugnant speech, suggests Columbia embraces the regulatory approach, as private universities are legally free to do.

Is it possible to reduce “offensive” speech without implementing formal sanctions? Harvard professor Danielle Allen thinks so. In the Washington Post, Allen proposed that students abide by the following self-censoring principle: “If the communications you use while protesting would constitute harassment if targeted at a specific individual, the presumption will be that the protest method is likely to create a pattern of generalized intimidation incompatible with a culture of mutual respect.”

But this isn’t a good test, for “offensive” speech need not constitute harassment even if targeted at a specific individual, for specific individuals could claim that they’d be harassed if faced with, for instance, pro-life messages (Shweder’s example), anti-affirmative-action messages, or an infinite number of messages that might offend people but wouldn’t be “harassment” in the normal sense.  The showing of paintings of Muhammad at Hamline University, for example, was claimed to create intimidation and harm, but this was perfectly consonant with a college atmosphere that promotes discussion. Nevertheless, the professor who showed the images was let go.

Preservation of “academic manner” of speaking.  

As Shweder presents it (and he’s clearly thinking of what has happened on our campus), preserving the “academic manner of speech” overlaps substantially with preserving the TPM restrictions, which themselves create an atmosphere that promotes free discussion:

This third option, which we’ll call the “manners approach,” reflects those principles. It refuses to regulate the content of speech. Instead, it focuses exclusively on the form of speech and procedures of civil intellectual engagement that define and give character to a free-thinking and critically reasoning academic speech environment. Some manners of speech, such as shouting down invited speakers, are widely recognized to be incompatible with the mission of a university.

After all, why should a private school permit a political demonstration in which slogans are shouted at captive audiences in offices or classrooms within earshot? Such speech events are asymmetric, non-cooperative, and dogmatic. Typically, the discourse scene for the event is aggressively controlled by a group of energized and committed true believers, and neither debate nor dialogue nor discussion nor rational argument is invited or welcome. The manners approach invites private universities to distinguish their quadrangles from a public park or a rally ground. One of the many problems demonstrations like those at Columbia present is that they breach the peace of the university and subvert the trust and cooperation necessary to sustain dialogue and debate in a community of scholars.

I would claim that this doesn’t really differ from the First Amendment option, as that option itself regulates TPM, creating an “academic manner” of speech.

Now it’s pretty clear that Shweder believes that all private universities, as well as public ones, should adopt the First-Amendment model, and if Harvard and Penn had done that (they sort of have one, but apply it inconsistently), then the Presidents wouldn’t have gotten the Congressional drubbing they did. It was more the hauteur with which the three Presidents answered, as well as their failure to explain why the “it depends” nature of calls for genocide really can be Constitutional, that brought two of the three down (Gay might have survived had she not committed plagiarism).

At the end, when Shweder asks the question “Which of these three options—the First Amendment, regulatory, or manners approach—should private universities pursue?”, he gives a quote from 1946 by Columbia University President Frank Fackenthal that suggersts that the First Amendment approach is the one that private schools should use, ergo one that all universities should use. (Religious universities may be an exception, but Shweder doesn’t consider them.)

I’m in full agreement with this conclusion but finish with the two quibbles I have with the article. To repeat:

First, I think there is a time and place to use signs and banners, though they’re no replacement for reasoned speech. And they are constitutional. Putting down the megaphones, however, is a good idea, as amplified speech serve only to disrupt campuses. It certainly did here, as some faculty had to move or cancel their classes near the Quad when denizens of the encampment began changing through megaphones outside the permitted hours.

Second, and more important, TPM restrictions are fully consonant with the First Amendment.  Therefore, if universities do make rules limiting the time, place, and manner of public speech, and those rules are not unreasonable and meant to further academic discourse, they are still adhering to Constitutional forms of speech.  This is important to realize, for a lot of misguided faculty members construe disruptive encampments, sit-ins in buildings, and the use of megaphones, etc. as “free speech”. It is not—at least not according to our Constitution. Thus I disagree with Shweder when he said this:

No university in America today, however, fully embraces First Amendment principles. For example, heckling and shouting, provided it does not deprive anyone of their right to speak, is constitutionally protected speech in the public square but is banned at most private universities.

Heckling and shouting and deplatforming are also banned at many public universities, and, at any rate, deplatformng speakers, heckling and shouting are fully in line with First Amendment principles for some places—including universities. Thus it’s wrong to say that “no university in America today. . . fully embraces First Amendment principles.”  Certainly the University of Chicago does, as well as public schools like the University of North Carolina at Chapel Hill. Michigan State, and the University of Texas system.

The realization that the Chicago Principles of Freedom of Expression are the rules most conducive to allowing free academic discourse is why more than 100 U.S. colleges and Universities, both public and private have adopted them.

Free, free speech!

UNC Asheville adopts institutional neutrality

May 21, 2024 • 10:46 am

I didn’t realize this until I read the article below from the Asheville (North Carolina) Watchdog, but apparently the entire University of North Carolina (UNC) system is adopting institutional neutrality à la the University of Chicago’s Kalven Report, put in place in 1967.  About two years ago I reported that the flagship school of UNC, the branch at Chapel Hill, had adopted not only the Kalven Principles, but also the University of Chicago’s Freedom of Expression Principles. The latter guarantees free speech on campus, comporting with the First Amendment but also subject to the University’s “time, place, and manner” restrictions that allow the institution to function.

Institutional neutrality, embodied in Kalven, supports free speech by prohibiting schools, academic units, or departments from taking official positions on political, ideological or moral questions—with rare exceptions that involve issues involving the functioning of our institution. (For an example of our Kalvenish restraint, see this statement by the University after the October 7 attack on Israel and the resultant war.)

So far, over a hundred American colleges have adopted a version of our Free Expression principles, but only a handful adhere to Kalven. It appears to be very hard for schools to keep their gobs shut about political issues of the day, and it’s made worse because students, who often don’t understand the purpose of institutional neutrality, put colleges under heavy pressure to issue statements.

The article below is about that pressure, pressure exemplified by students defending the banners below hanging from the library of the University of North Carolina Asheville (UNCA) library. There are three political ones, supporting Black Lives Matter, LGBTQ+ community, and a land acknowledgment to the Cherokee. The students also don’t understand why UNCA doesn’t take a position on the war in Gaza.

Click any of the items below to read the piece.

What started the debate about institutional neutrality was the removal of the banners above in 2023, along with a Black Lives Matter Mural that was taken down during renovations and not replaced. The Chancellor explained that the banners, and now any statements about the war in Gaza, would be violations of institutional neutrality:

Since University of North Carolina Asheville students began protesting against the war in Gaza in early May, Chancellor Kimberly van Noort has maintained that the university should avoid an official stance on the matter.

“Neither the University nor I, the chancellor, should interfere by taking an official stance,” van Noort wrote in a public update to students and faculty earlier this month. “Institutional neutrality promotes the open exchange of ideas and avoids inhibiting scholarship, creativity, and expression. Compromising this position carries great risks.”

Her adherence to institutional neutrality mirrors other universities’ stances across the country, which have experienced growing protests in the past few weeks. Institutional neutrality also has been applied to other cultural issues on campus, including the Ramsey Library display of Black Lives Matter, Cherokee land acknowledgement, and LGBTQ+ banners – and comes at a time when the university system’s Board of Governors is considering removing Diversity, Equity, and Inclusion positions and offices across the system.

In spring 2023, the banners were removed to allow repainting of the library and were not replaced. At the time, van Noort reported in public updates that the banners suffered from “expected wear and tear” from “time and the elements.”

Van Noort told Asheville Watchdog recently that the decision to not reinstate the banners hinged on institutional neutrality.

“For us to make a decision of privileging some over others is really problematic for a university, where we strive to have this neutral state so students can express themselves,” she said in an interview. “They can express opposition. They can express conflict. They can express disagreement in a peaceful, non-violent, respectful manner, but it’s not the place of the university to take a stance in those conversations.”

Or, as our Kalven report states in a brilliant passage:

The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars. To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community. It is a community but only for the limited, albeit great, purposes of teaching and research. It is not a club, it is not a trade association, it is not a lobby.

Here’s more from the newspaper that describes how the whole state system adopted institutional neutrality; it’s a recent development:

The idea of institutional neutrality dates back to the University of Chicago’s 1967 Kalven Committee Report, which argues that university neutrality is important in fostering a diversity of viewpoints. The idea caught steam in 2021 when Vanderbilt’s chancellor Daniel Diermeier advocated for it in pieces for USA Today, Inside Higher Ed, and Forbes, UNCA’s chief university communication and marketing officer Michael Strysick said.

Strysick said it was a 2017 state law involving campus free speech – and UNC policy – that brought institutional neutrality to the UNC system. The law, born from HB 527, stated “the constituent institution may not take action, as an institution, on public policy controversies of the day.”

The law did not include the term “neutrality” until it was amended by SB 195 last summer. SB 195 requires all North Carolina colleges and universities to remain neutral on “political controversies of the day.”

Last summer, the General Assembly passed another bill, SB 364, using language mirroring the Kalven Report, prohibiting UNC institutions from asking employment applicants to describe beliefs around “contemporary political debate or social action.” A few weeks ago, a UNC System committee approved a policy that would remove Diversity, Equity, and Inclusion positions and offices across the system, if approved by the full Board of Governors on May 23. The committee’s decision sparked a student protest in front of the Ramsey Library.

Student protesters met with Chancellor Van Noort in May, and were advised that taking a stand on the war, or even on DEI, was a violation of institutional neutrality. Students and some faculty don’t like that, because it means that the university doesn’t publicize debatable ideas or political initiatives that students and faculty like. (Yes, DEI is debatable, at least the way it’s used in colleges, though of course bias in university treatment or admissions is illegal.  But DEI goes far beyond simply “color blindedness,” as most of us know.)

Here’s some pushback:

“A big part of the DEI policy is recruiting and retaining students. The system is shooting itself in the foot if we do this because we are not going to be able to recruit,” said Kelly Biers, associate professor of French. “It’s going to drive away high quality faculty and students.”

But of course they can still recruit, though retention of students with lower qualifications will always be a problem. But you can’t give special privileges to students because of their ethnicity (face it, this is not about “viewpoint diversity” but about race and ethnicity). I suppose Biers means that they can’t recruit on the basis of race, which is illegal anyway because of the recent Supreme Court Decision, but of course UNCA can cast their recruiting net as widely as possible, and by all means cast it over students from different social classes and ethnic groups. But the DEI that gives arrant racial preferences, tries to instill guilt in people who are male or white, taints everyone with “unconscious bias”, or requires applicants for jobs to submit DEI statements, will no longer fly.  But truly, I don’t understand how killing the “progressive” DEI while retaining policies against bias and bigotry will “drive away high quality faculty and students.”

There’s more pushback:

Alondra Barrera-Hernandez, student government president and protest organizer added, “It’s important to advocate for this (DEI) on our campus especially because UNC Asheville is a very diverse campus, especially for DEI. It can impact a lot of marginalized students.”

Again, DEI is construed, I suspect, to mean students marginalized because of their race or ethnicity, not because they’re conservatives. But remember that an important part of campus diversity is viewpoint diversity, yet the implicit assumption for “etbnically marginalized” students is the patronizing notion that they all share a common viewpoint.  They don’t, of course, but campuses are looking for the ones that do. They don’t want young versions of Coleman Hughes or John McWhorter.

One more misguided criticism of institutional neutrality, dealing with a student’s reaction after the banners and the BLM mural was removed:

Alumna Lauren Brasswell was the student government president at the time.

“By choosing not to take a stance, the institution is taking a stance on ignoring the historical significance of the harsh realities that marginalized individuals face,” said Brasswell. “This reality does not and should not go against any universities’ mission or values. And, if it does, that institution is and will be a hostile, discriminatory and unsafe environment for any black or brown student, faculty, or staff.”

No, that’s not true at all.  Saying that if a university doesn’t take an explicit stance on a historical or present-day controversy, it’s favoring one side of that controversy is wrong. It’s like saying that if you don’t declare that you have a hobby, you still have one, which is “not having a hobby.”

Again, the University is not the critic but the sponsor of critics.  Students and faculty are welcome, nay, encouraged to publicize their personal views about anything, and the rejection of centuries of bigotry is now enshrined in rules that prohibit academic and personal discrimination in colleges.  With such recognition, the claim that the environment is “unsafe” seems overblown , though of course people may feel unsafe without actually being unsafe.  I wonder how many students of color at UNCA live their lives in fear of constant attack or discrimination? We don’t know; all we have are these assertions.

The only statement by the Chancellor which seems a bit off is this one:

The chancellor would like to see a local art piece instead of the banners and clarified that UNCA has “no intention of lessening or eliminating the University’s commitment to the [Cherokee] land acknowledgement, but to the contrary exploring ways to more permanently honor it.”

If UNCA really wants to honor the commitment that their university stands on lands stolen from the Cherokee, they should either reimburse that group or give the land back. Anything else is performative virtue-signaling that costs nothing to the University oppressors.

At any rate, the article ends with the pro-Palestinian students promising to continue their activities in the fall while planning strategy during the summer. More power to them—so long as they don’t violate University regulations.  I disagree with nearly all of their views, but hey, it’s free speech, and they’re welcome to say what they want, even “Globalize the intifada”, a call for violence that’s legal so long as it doesn’t incite imminent and predictable violence.

And short-term banners or displays from student groups are also okay, but once they’re made permanent they can be regarded as an official position of a university, which is a violation of neutrality.

MIT’s banning of diversity statements now official

May 6, 2024 • 10:00 am

The other day, taking as my source the publisher of the MIT-centered satirical site The Babbling Beaver, I reported on the Beaver’s claim that MIT had become the first major university to ban diversity statements. Although the site is snarky and not every assertion it makes is true, the publisher affirmed that this one was.

But because of the site’s satirical overtone, several miscreants wrote me that there was no confirmation that the DEI claim was true (I did have some confirmation, but it was confidential). One such miscreant even started his email with “What are you doing with your blog, Jerry?”, a sentence that is both uncivil and inaccurate (this is of course not a “blog,” but a “website”).

But the important thing is that the Beaver’s claim is indeed true: MIT has banned diversity statements. It’s confirmed in the article below by John Sailer at Unherd (click headline to read):

From Sailer:

On Saturday, an MIT spokesperson confirmed in an email to me that “requests for a statement on diversity will no longer be part of applications for any faculty positions at MIT”, adding that the decision was made by embattled MIT President Sally Kornbluth “with the support of the Provost, Chancellor, and all six academic deans”.

. . .This is momentous. The pushback against diversity statements has succeeded almost exclusively at public universities in red states, encouraged or enacted by lawmakers. Conservative states such as Florida, Texas, and Utah have passed laws banning diversity statements at state universities. Some appointed state university leaders, such as the University of North Carolina Board of Governors, have also barred the practice.

The decision at MIT is different — reform from within, prompted by a university president alongside deans and provosts, at a private institution.

It’s very possible that more private universities, and state universities in blue states, will eventually follow MIT’s lead for one basic reason: a significant number of faculty from across the political spectrum simply cannot stand mandatory DEI statements. Last month, Harvard Law School’s Randall Kennedy — a self-described “scholar on the Left committed to struggles for social justice” — described the general sentiment: “It would be hard to overstate the degree to which many academics at Harvard and beyond feel intense and growing resentment against the DEI enterprise because of features that are perhaps most evident in the demand for DEI statements.”

I’d say a statement by “an MIT spokesperson” is evidence enough that the school has deep-sixed diversity statements.  I’ve always opposed them because they constitute compelled speech (your statement has to be “progressive” or it won’t fly), and because if they’re used to show that you’re socially committed, well, there are other ways of doing stuff for society besides furthering DEI. For example, you could work at a soup kitchen for the poor, or tutor illiterate adults, both activities that I have done but wouldn’t give me DEI credits.

But MIT’s getting rid of such statements is, as Sailer said, “momentous.”

The College Fix reports it, too (click below to read), but all it does is repeat what it’s in Sailer’s article as well as in the Babbling Beaver article. Nothing new there.

Some sensible views of David French on college protests

April 29, 2024 • 9:30 am

Here are a few misconceptions about college protests being bandied about the internet (in bold) with my responses below them (all text is mine)

a.) If the protests are “peaceful”, then colleges shouldn’t do anything about them

The criterion for colleges to allow free speech, as construed by the courts for state universities, are that speech much be expressed in a “time, place, or manner” in which it doesn’t interfere with the functions or operations of a university (the speech, of course, is not regulated; this rule is ‘content neutral’).  Thus state universities can restrict how, when, and where speech can be expressed given the limitations above. Private universities can do the same if “time, place, and manner” regulations are part of their own policy.  Note that illegal demonstrations can be peaceful but still prohibited, as when there is loud shouting that disturbs classes or sit-ins that occupy university buildings. Many people who should know better, like AOC or Ilhan Omar, seem to think that peaceful protests on campus must be allowable protests.

AOC instantiates this view below, especially because the protestors were warned but refused to leave. Apparently she wants chaos on the campus. Columbia has already gone to all-hybrid classes, and I suspect that they will cancel graduation, an important time in the life of all students.

This same kind of error is made by many faculty when they sign petitions defending illegal and disruptive demonstrations, like those at Columbia. Here they are prioritizing social justice over the function of their own university. As Jon Haidt would put it, they want to work at Social Justice University, not Truth University.

b.) If the protests are legal under the First Amendment, then colleges must allow them

Again, protests that are legal in public may still be illegal in government institutions like state universities if they interfere with university functions.

c.) Under no circumstances should cops or security people be called to remove protestors

If a disruptive protest is prohibited but protestors refuse to leave, they may and should be gently removed by security or police. Universities don’t like this, but what other way is there to break up an illegal protests that interferes with University function?

d.) Because protestors are practicing “civil disobedience,” they should neither be asked to leave nor be punished with suspensions or arrests

Civil disobedience, as discussed by David French in the article below, means deliberately violating a law that you consider immoral, doing so peacefully, and being willing to accept the punishment. The paradigm for such demonstrations are the civil rights marches and sit-ins of the Sixties.  They worked because, by taking their punishment, be it jailing, water hoses, or police dogs, the protestors moved the U.S. morally, showing Americans graphically how segregation was illegal and its proponents immoral. It’s thus almost funny that one of the demands of current protestors, who say they’re engaged in civil disobedience, is that they not be punished for their behavior. Further, what “immoral” law are they violating? Only the “time, place, and manner” restrictions of colleges, though of course they are protesting what they see as Israel’s so-called genocide in Gaza. (And of course they’re protesting their college’s supposed investments in “genocide”.) But they are removed by police not for these things, which constitute free speech, but for illegal and obstructive disruption of a university. The same holds for deplatforming speakers, which is usually not a First-Amendment violation but can be so in government institutions, or for colleges that have a “free speech” policy and take it seriously.

All of these matters are discussed in a new op-ed by NYT writer David French.  The NYT original is here, but if you click on the headline below, be able to read it.

French has had a varied career. He grew up in a small town in Kentucky but then went to Harvard Law school and became a lawyer, first a private litigator, then a constitutional lawyer, and finally serving as an Army lawyer. He adds this:

My most recent book, “Divided We Fall: America’s Secession Threat and How to Restore Our Nation,” outlined the dangers of polarization and the need to engage with people who have opposing viewpoints. I’m an evangelical conservative who believes strongly in a classical liberal, pluralistic vision of American democracy, in which people with deep religious, cultural, and moral differences can live and work together and enjoy equal legal protection and shared cultural tolerance. In both my personal and professional life I strive to live up to the high ideals of Micah 6:8 — to act justly, to love kindness, and to walk humbly before God.

We’ll leave aside the God bit as it’s not relevant here. What is relevant is his new piece, which should be sent to every college president, provost, and chancellor in America.  If you subscribe you can read it here, but I’ve put an archived version as the link to the headline below, so click on that if you want to read it.

The upshot is that French thinks that universities must observe three principles during this time of protest.

a. Universities must protect free speech
b. Universities must respect peaceful civil disobedience, but
c. Universities must “uphold the rule of law by protecting the campus community from violence and chaos. Universities should not protect students from hurtful ideas, but they must protect their ability to peacefully live and learn in a community of scholars.”

You may notice a bit of conflict between principles b. and c.  That means that breaking the rules may be permitted unless it leads to violence and chaos; I interpret “chaos” as the kind of disruption that’s going on at Columbia University. An example of peaceful civil disobedience on campus is the existence of a small encampment of a few tents at Vanderbilt University, the place where Chancellor Diermeier had students expelled and arrested for both sitting in in a campus building and also for injuring a worker as they stormed into the building. Clearly Diermeier (our former Provost) is respecting the right to protest, even though it violates campus regulations, by leaving the small encampment alone.

I’d quote the whole article if I could, but will limit myself to giving French’s take on the issues above. If you’re on a campus, be sure to send this articles to the Powers That Be. French’s quotes are indented. Here’s the gist of French’s “way out” of chaos on campus:

There is profound confusion on campus right now around the distinctions among free speech, civil disobedience and lawlessness. At the same time, some schools also seem confused about their fundamental academic mission. Does the university believe it should be neutral toward campus activism — protecting it as an exercise of the students’ constitutional rights and academic freedoms but not cooperating with student activists to advance shared goals — or does it incorporate activism as part of the educational process itself, including by coordinating with the protesters and encouraging their activism?

The simplest way of outlining the ideal university policy toward protest is to say that it should protect free speech, respect civil disobedience and uphold the rule of law. That means universities should protect the rights of students and faculty members on a viewpoint-neutral basis, and they should endeavor to make sure that every member of the campus community has the same access to campus facilities and resources.

That also means showing no favoritism among competing ideological groups in access to classrooms, in the imposition of campus penalties and in access to educational opportunities. All groups should have equal rights to engage in the full range of protected speech, including by engaging in rhetoric that’s hateful to express and painful to hear. Public chants like “Globalize the intifada” may be repugnant to many ears, but they’re clearly protected by the First Amendment at public universities and by policies protecting free speech and academic freedom at most private universities.

Note that repugnant chants must be tolerated, even if they’re anti-Semitic.  I, for one, would not want to punish students for shouting “Gas the Jews,” something that the Columbia protestors come close to. That’s offensive but allowed by the First Amendment. Of course, if the repetition of such sentiments by many create a climate of harassment on campus, that’s a different matter, and a Title VI violation.

It’s a pity that the American public, and especially Representative Stefanik, doesn’t realize that calls for genocide can indeed constitute legal speech. The Presidents of MIT, Harvard, and Penn were accurate in saying that such calls were legal “if expressed in context,” but none of those schools have explicit First Amendment-based speech codes, and the three schools had been irregular and hypocritical in violating what speech codes they do have. This is why it’s essential for all schools to adopt the Chicago Principles of Free Expression—and over 100 of them have done so. (Remember, we’re a private university, too.)

French on time, place, and manner restrictions:

Still, reasonable time, place and manner restrictions are indispensable in this context. Time, place and manner restrictions are content-neutral legal rules that enable a diverse community to share the same space and enjoy equal rights.”

Noise limits can protect the ability of students to study and sleep. Restricting the amount of time any one group can demonstrate on the limited open spaces on campus permits other groups to use the same space. If one group is permitted to occupy a quad indefinitely, for example, then that action by necessity excludes other organizations from the same ground. In that sense, indefinitely occupying a university quad isn’t simply a form of expression; it also functions as a form of exclusion. Put most simply, student groups should be able to take turns using public spaces, for an equal amount of time and during a roughly similar portion of the day.

. . . But what we’re seeing on a number of campuses isn’t free expression, nor is it civil disobedience. It’s outright lawlessness. No matter the frustration of campus activists or their desire to be heard, true civil disobedience shouldn’t violate the rights of others. Indefinitely occupying a quad violates the rights of other speakers to use the same space. Relentless, loud protest violates the rights of students to sleep or study in peace. And when protests become truly threatening or intimidating, they can violate the civil rights of other students, especially if those students are targeted on the basis of their race, sex, color or national origin.

French on the meaning of civil disobedience (his bolding below)

Civil disobedience is distinct from First Amendment-protected speech. It involves both breaking an unjust law and accepting the consequences. There is a long and honorable history of civil disobedience in the United States, but true civil disobedience ultimately honors and respects the rule of law. In a 1965 appearance on “Meet the Press,” the Rev. Dr. Martin Luther King Jr. described the principle perfectly: “When one breaks the law that conscience tells him is unjust, he must do it openly, he must do it cheerfully, he must do it lovingly, he must do it civilly — not uncivilly — and he must do it with a willingness to accept the penalty.”

. . . . There is a better way. When universities can actually recognize and enforce the distinctions among free speech, civil disobedience and lawlessness, they can protect both the right of students to protest and the rights of students to study and learn in peace.

In March a small band of pro-Palestinian students at Vanderbilt University in Nashville pushed past a security guard so aggressively that they injured him, walked into a university facility that was closed to protest and briefly occupied the building. The university had provided ample space for protest, and both pro-Israel and pro-Palestinian students had been speaking and protesting peacefully on campus since Oct. 7.

But these students weren’t engaged in free speech. Nor were they engaged in true civil disobedience. Civil disobedience does not include assault, and within hours the university shut them down. Three students were arrested in the assault on the security guard, and one was arrested on charges of vandalism. More than 20 students were subjected to university discipline, three were expelled, and one was suspended.

The students demanding amnesty are not practicing true civil disobedience.  They want to express their principles but aren’t willing to take the penalty for expressing them in an illegal way.  It doesn’t help them, either, that their claim of immorality—that Israel is practicing genocide—is not only wrong, but really does apply to the very entities they worship: terrorist groups like Hamas and Hezbollah. This blatant hypocrisy is called out all too rarely.

French on the importance of viewpoint neutrality:

The message was clear: Every student can protest, but protest has to be peaceful and lawful. In taking this action, Vanderbilt was empowered by its posture of institutional neutrality. It does not take sides in matters of public dispute. Its fundamental role is to maintain a forum for speech, not to set the terms of the debate and certainly not to permit one side to break reasonable rules that protect education and safety on campus.

Vanderbilt is not alone in its commitment to neutrality. The University of Chicago has long adhered to the Kalven principles, a statement of university neutrality articulated in 1967 by a committee led by one of the most respected legal scholars of the last century, Harry Kalven Jr. At their heart, the Kalven principles articulate the view that “the instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars.”

Contrast Vanderbilt’s precise response with the opposing extremes. In response to the chaos at Columbia, the school is finishing the semester with hybrid classes, pushing thousands of students online. The University of Southern California canceled its main stage commencement ceremony, claiming that the need for additional safety measures made the ceremony impractical. At both schools the inability to guarantee safety and order has diminished the educational experience of their students.

Only about four universities beside Chicago has adopted viewpoint neutrality (Vanderbilt and UNC Chapel Hill are among them), but this principle is just as important as our Principles of Free Expression in keeping open discourse alive at Chicago. Every university should adopt Kalven as well as our principles of free expression. Colleges where I have friends who tell me that their institution refuses to adopt institutional neutrality include Williams College and Appalachian State University. There are many more: for some reason, colleges wish to retain the ability to take political, ideological, and moral stands. Believe me, there is no upside in doing so, for it sets a very bad precedent as well as chilling speech.

Our own encampment by Students for Justice in Palestine is, says the grapevine, set for Wednesday. The plans apparently call not just for setting up tents, but also occupying buildings—acts that violate campus regulations.  I hope to Ceiling Cat that our administration finally grows a spine and enforces those regulations, especially because they have arrantly refused to enforce illegal demonstrations in the past. Right now, our administration appears to be adhering to what French says is a losing strategy:

At this moment, one has the impression that university presidents at several universities are simply hanging on, hoping against hope that they can manage the crisis well enough to survive the school year and close the dorms and praying that passions cool over the summer.

That is a vain hope. There is no indication that the war in Gaza — or certainly the region — will be over by the fall. It’s quite possible that Israel will be engaged in full-scale war on its northern border against Hezbollah. And the United States will be in the midst of a presidential election that could be every bit as contentious as the 2020 contest.

But the summer does give space for a reboot. It allows universities to declare unequivocally that they will protect free speech, respect peaceful civil disobedience and uphold the rule of law by protecting the campus community from violence and chaos. Universities should not protect students from hurtful ideas, but they must protect their ability to peacefully live and learn in a community of scholars. There is no other viable alternative.

**************

Just for fun, here’s one example of how allowing chaos on campus, and demanding that universities take ideological stands, destroy their academic mission. I don’t want our university to wind up full of faculty like this USC gender-studies professor, whose tweets are now protected (h/t Anna Krylov, who’s at USC). Kessler is using the demonstrations to destroy her mission of educating by canceling their final project and promising that she’ll give all her students a good grade. She’s doing this clearly because she’s pro-Palestinian, as well as a chowderhead (see more here).

Oh, and USC has canceled graduation.

Finally, some advice to Columbia University:

a. If the protestors return, as they have, continue to arrest and suspend them. Your actions have been inconsistent, and that prolongs the demonstrations.

b. DO NOT NEGOTIATE with the protestors.

PEN America cancels awards ceremony because some members insist that the organization denounce Israeli genocide

April 23, 2024 • 9:30 am

Well, you can write off yet another organization dedicated to promoting free expression. First the ACLU went down the tubes, followed by the SPLC, and now PEN America, a group of American writers dedicated to promoting free expression, has canceled a ceremony because the writers want PEN to take a stand on an ideological issue: Israel, say many of its members, is committing genocide, and they are demanding that PEN America take that position. And PEN America crumpled, canceling an upcoming event.

No matter that the issue is debatable, and no matter that the real committers of genocide, those absolutely dedicated to destroying a people, are Hamas, which has sworn to kill all Jews and eliminate Israel. Now that is genocide. But PEN members don’t care what Hamas is doing.  The claim of Israeli genocide is not a “truth”, and many of us (including me) disagree, as do many PEN members. But a vocal group of these “free expression” writers insist that their organization call for a cease fire and accuse Israel of genocide.  Doesn’t that count as something that chills free expression, and associates an organization for such expression with a specific ideology?

You may recall that a similar dubious position was taken by some PEN members in 2015, when six members refused to attend a banquet—and 145 writers signed a protest letter—all because PEN America was going to give a “freedom of expression award” to Charlie Hebdo after many of the magazine’s writers and artists were killed.  That’s even more of a no-brainer, because, yes, Charlie Hebdo, in the face of threats, continued to mock everything, including all religions. But it was their liberal satire of Islam that did them in, with 12 Charlie Hebdo employees shot by Muslim terrorists. Protesting a “courage” award for Charlie Hebdo is ridiculous.  But such is PEN  America.

Here’s the group’s mission as stated on their “about us” page:

PEN America stands at the intersection of literature and human rights to protect free expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible.

Are they protecting free expression by canceling a ceremony because of a misguided assertion about Israel? And what they say is laughable (read below):

Click the headline to read, or find it archived here:

A few excerpts:

The free expression group PEN America has canceled its 2024 literary awards ceremony following months of escalating protests over the organization’s response to the war in Gaza, which has been criticized as overly sympathetic to Israel and led nearly half of the prize nominees to withdraw.

The event was set to take place on April 29 at Town Hall in Manhattan. But in a news release on Monday, the group announced that although the prizes would still be conferred, the ceremony would not take place.

“We greatly respect that writers have followed their consciences, whether they chose to remain as nominees in their respective categories or not,” the group’s chief officer for literary programming, Clarisse Rosaz Shariyf, said in the release.

“We regret that this unprecedented situation has taken away the spotlight from the extraordinary work selected by esteemed, insightful and hard-working judges across all categories. As an organization dedicated to freedom of expression and writers, our commitment to recognizing and honoring outstanding authors and the literary community is steadfast.”

In recent months, PEN America has faced intensifying public criticism of its response to the Oct. 7 Hamas-led attacks on Israel, which killed roughly 1,200 people, according to Israeli authorities, and Israel’s military response in Gaza, which has left about 34,000 people dead, according to health officials there.

In a series of open letters, writers have demanded that PEN America support an immediate cease-fire, as its global parent organization, PEN International, and other national chapters have done.

In other words, the writers have demanded (using Hamas statistics, of course) that PEN America take a political position. They are demanding that a group dedicated to free expression take an “official” position that would tend to chill expression and associate PEN with an ideological stand.  And if PEN doesn’t, then the writers are going to take their ball and go home.  They are demanding, in other words, that the group broach any kind of institutional neutrality that it may have—and it should have some since it’s dedicated to free expression.

More:

In March, a group of prominent writers, including Naomi Klein, Lorrie Moore, Michelle Alexander and Hisham Matar, announced that they were pulling out of next month’s World Voices Festival, one of PEN America’s signature events. And over the past several weeks, growing numbers of nominees for the literary awards, including Camonghne Felix, Christina Sharpe and Esther Allen, announced that they were withdrawing their books from consideration.

In a letter that PEN America leadership received last week, 30 of the 87 nominated writers and translators (including nine of the 10 nominees for one prize) criticized the group’s “disgraceful inaction” on the situation in Gaza, accusing it of “clinging to a disingenuous facade of neutrality while parroting” what the letter characterized as Israeli government propaganda. The letter also called for the resignation of the group’s longtime chief executive, Suzanne Nossel, and its president, the novelist Jennifer Finney Boylan, along with that of the group’s executive committee.

And here’s the dumbest statement of all:

“PEN America states that ‘the core’ of its mission is to ‘support the right to disagree,’” the nominees stated. “But among writers of conscience, there is no disagreement. There is fact and fiction. The fact is that Israel is leading a genocide of the Palestinian people.”

Well that’s just wrong. I bet I could find many “writers of conscience” who do disagree on the “fact” that “Israel is leading a genocide of the Palestinian people”.  If Israel was, all Gazans would have been dead for a long time, but the population of Gaza has grown like gangbusters. And we know that Israel doesn’t just go into Gaza for no reason and kill civilians. It responds only when it’s attacked, and tries to limit damage to Hamas terrorists or their military assets.  It’s clear that the IDF wants to eliminate not Palestinians, but members of Hamas. Has any other country sent truckloads of humanitarian assistance, like food and medicine, to an enemy state? Or warned people where and when it was going to attack? Those are real “facts”! But they don’t matter, for these PEN morons claim that they already know the truth.

The reader who sent me this article added the following:

I chortled to myself. It would be funny that fiction writers so self-confidently assert a fiction to be a “fact” if it wasn’t sad that they’re likely driven by anti-Israel animus to do so. Anyway, while PEN tried to push back in its own statement upholding free expression, their awards ceremony has now been derailed by self-righteous nominees who want free expression shut down in service of propagating grotesque lies.

And yes, PEN America did push back, but it still truckled to the ideologues. From the NYT:

That letter [from the 30 nominees] drew a brief but forceful response last week in which the organization described the war in Gaza as “horrific” but challenged what it said was the letter’s “alarming language and characterizations.”

“The perspective that ‘there is no disagreement’ and that there are among us final arbiters of ‘fact and fiction’ reads to us as a demand to foreclose dialogue in the name of intellectual conformity, and one at odds with the PEN Charter and what we stand for as an organization,” the organization said in a statement.

The second paragraph is spot on, and admirable. So why did PEN cancel the ceremony? Maybe some of the nominees won’t show up, but either they can get their award in absentia or they can be dropped because they don’t favor free expression.  I really don’t care. What I do care about is that yet another one of America’s bastions of free expression has turned cowardly, violating its own charter in the face of loud and misguided ideological demands from writers.

If the PEN Charter really does stand for institutional neutrality, then the organization should conform to it. Writers are of course welcome to express their own views, but the organization itself should not be the arbiter or promoter of those views.

USC forbids its hijab-clad valedictorian to speak at graduation because she minored in genocide

April 16, 2024 • 9:20 am

This is a true test of people like me who are pro-Israel in the current conflict but are also in favor of free speech. But it’s not a hard decision, for if you’re a hard line free-speech advocate, you must accept the fact that it’s most important to allow freedom of speech when what the person says offends you or many others.

And that is the situation in the case of Asna Tabassum, the valedictorian of the University of Southern California (USC), who, apparently because she might talk about (Israeli) genocide or advocate for a Palestine “from the river to the sea”, isn’t going to be allowed to speak at graduation. (Of course, the USC administration uses other excuses for censorship, like “safety”.)

I was alerted to the situation by this tweet sent to me by Luana:

Is this the case? Does USC really have a minor in genocide? Did the valedictorian minor in genocide?  And did USC also prevent its valedictorian from speaking because of the possibility she might discuss genocide? The answer to all four questions appears to be “yes”. But I think it’s wrong to prevent her from speaking—not if USC has a tradition of having valedictorians speak, which there is.

First, yes, USC does have a minor in genocide, or rather “resistance to genocide”. Here are part of the details of that minor (click to read), but if you look at the the courses, there’s nothing about Israel/Palestine: most of them are about the Shoah (Holocaust of Jews during WWII), Native American genocide, the Armenian genocide, and genocide and the law. It seems like a creditable minor.  Of course one suspects that Tabassum might have minored in this because of a belief that Palestine is undergoing genocide, but we don’t know that, and at any rate it’s irrelevant to this kerfuffle.

This article from the school’s site USC Today (click headline below to read) confirms that Tabassum was indeed the valedictorian:

USC’s 2024 valedictorian, Asna Tabassum, was also recognized. Tabassum, who is graduating with a major in biomedical engineering a minor in resistance to genocide, has studied how technology, immigration and literacy affect the type of medical care people receive. She has also been an advocate for the community through her service with the Muslim Student Union and the Mobile Clinic at USC.

 

And here are two articles, the first from the Los Angeles Times and the second from USC Annenberg Media, both confirming that Tabassum has indeed been banned buy USC’s administration from speaking. Click both to read, though the quotes below come from the L.A. Times.

From the L.A. Times:

And from the USC Annenberg site:

Quotes from the LA Times:

Saying “tradition must give way to safety,” the University of Southern California on Monday made the unprecedented move of barring an undergraduate valedictorian who has come under fire for her pro-Palestinian views from giving a speech at its May graduation ceremony.

The move, according to USC officials, is the first time the university has banned a valedictorian from the traditional chance to speak onstage at the annual commencement ceremony, which typically draws more than 65,000 people to the Los Angeles campus.

In a campuswide letter, USC Provost Andrew T. Guzman cited unnamed threats that have poured in shortly after the university publicized the valedictorian’s name and biography this month. Guzman said attacks against the student for her pro-Palestinian views have reached an “alarming tenor” and “escalated to the point of creating substantial risks relating to security and disruption at commencement.”

. . .“After careful consideration, we have decided that our student valedictorian will not deliver a speech at commencement. … There is no free-speech entitlement to speak at a commencement. The issue here is how best to maintain campus security and safety, period,” Guzman wrote.

The student, whom the letter does not name, is biomedical engineering major Asna Tabassum. USC officials chose Tabassum from nearly 100 student applicants who had GPAs of 3.98 or higher.

But after USC President Carol Folt announced her selection, a swarm of on- and off-campus groups attacked Tabassum. They targeted her minor, resistance to genocide, as well as her pro-Palestinian views and “likes” expressed through her Instagram account.

Here’s an Instagram post quoting Tabassum and calling for her deplatforming. Her own Instagram site is now private, but note that the words are probably not hers, but from a link in her own Instagram biography.

And even if the words quoted above were hers, do they promote imminent violence (presumably towards Jews)? Nope. It’s not a First-Amendment exception to call Zionism a “racist settler-colonial ideology, nor to call for the complete abolition of Israel. If it were, half of Twitter would be taken down.

As expected, Tabassum didn’t like this decision, and issued a mature but passionate statement:

In a statement, Tabassum opposed the decision, saying USC has “abandoned” her.

“Although this should have been a time of celebration for my family, friends, professors, and classmates, anti-Muslim and anti-Palestinian voices have subjected me to a campaign of racist hatred because of my uncompromising belief in human rights for all,” said Tabassum, who is Muslim.

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“This campaign to prevent me from addressing my peers at commencement has evidently accomplished its goal: today, USC administrators informed me that the university will no longer allow me to speak at commencement due to supposed security concerns,” she wrote.

“I am both shocked by this decision and profoundly disappointed that the university is succumbing to a campaign of hate meant to silence my voice. I am not surprised by those who attempt to propagate hatred. I am surprised that my own university—my home for four years—has abandoned me.”

And of course the university issued a weaselly decision:

In an interview, Guzman said the university has been “in close contact with the student” and would “provide her support.” He added that “we weren’t seeking her opinion” on the ban.

“This is a security decision,” he said. “This is not about the identity of the speaker, it’s not about the things the valedictorian has said in the past. We have to put as our top priority ensuring that the campus and community is safe.”

A screenshot from Provost Andrew Guzman, who singlehandedly decided to ban Tabassum (he doesn’t even have the guts to name her in the letter):

Some of those who objected were, of course, Jewish groups:

We Are Tov, a group that uses the Hebrew word for “good” and describes itself as “dedicated to combating antisemitism,” posted Tabassum’s image on its Instagram account and said she “openly promotes antisemitic writings.” The group also criticized Tabassum for liking Instagram posts from “Trojans for Palestine.” Tabassum’s Instagram bio links to a landing page that says “learn about what’s happening in Palestine, and how to help.”

The campus group Trojans for Israel also posted on its Instagram account, calling for Folt’s “reconsideration” of Tabassum for what it described as her “antisemitic and anti-Zionist rhetoric.” The group said Tabassum’s Instagram bio linked to a page that called Zionism a “racist settler-colonial ideology.”

Well, I have little doubt, based on the above, that Tabassum is pro-Palestinian, may feel that Israel is committing genocide, and has made social-media posts that may smack of antisemitism and perhaps a desire to eliminate Israel.  But none of that is relevant here. The only consideration is whether Tabassum’s words are calculated and intended to promote imminent and lawless violence—something that would violate her First-Amendment freedom to speak. And, as a private university, USC doesn’t need to adhere to the First Amendment. They could ban Tabassum without citing freedom of speech. But, like any decent university, public or private, USC should follow the First Amendment. The only exception is that universities should allow “time, place, and manner” expressions of speech that don’t disturb the mission of the university. That means no disrupting speeches or blocking access to university facilities like classes.

Further, USC promotes First-Amendment-like freedom of speech on their website.  Here’s one bit from USC’s Policy on Free Speech:

As the Faculty Handbook declares, the University recognizes that students are exposed to thought-provoking ideas as part of their educational experience, and some of these ideas may challenge their beliefs and may lead a student to claim that an educational experience is offensive.  Therefore any such issues that arise in the educational context will be considered in keeping with the University’s commitment to academic freedom.

Except, of course, when the issue arises in a graduation speech!

Yes, there may have been threats, but it’s up to USC to have enough security on hand to both protect Ms. Tabassum and also allow her to speak without heckling. The mere citation of threats and palaver about “security decisions” is simply a way that USC can ban a controversial speaker without having to provide the conditions where and when she can speak freely.

Tabassum is a valedictorian, valedictorians traditionally speak at USC, and her speech is almost certainly not designed to incite imminent lawless violence. Even if she accuses Israel of committing genocide in Gaza, that is not sufficient grounds to ban her. (If USC is worried about First-Amendment exceptions, they can vet her speech in advance, but they better have constitutional lawyers look at it, too!).

In my view, USC is cowardly and censorious in preventing Tabassum from speaking at graduation.  The school is, as she notes, robbing her of her big moment: her reward for working hard over four years to become the best student in her class. I urge USC to change their minds and let her speak, but of course it’s too late.  The gutless wonders, fond of selective censorship, appear to be running USC. And the great irony here is that although the school offers a minor in genocide, it prevents someone from speaking because they might bring up the subject.

_______________

Full disclosure: I was the valedictorian in my college class, too, and was also prevented from the traditional (short) speech because the administration knew I was an antiwar activist. Thus they announced my award from the stage while I was in the audience. I got to stand up when I was recognized, but I was wearing a black armband and made the “Black Power” fist salute. (That cost me a summer job.)  I, too, felt a bit cheated, and for reasons similar to those of Tabassum. But I think that  the censorship of Tabassum is a much bigger deal than mine given that she was supposed to make a full speech and not just an elongated “thank you”. And, of course, free speech is especially important to emphasize these days.  Too many schools are using “safetyism” as a reason to cancel speakers, which merely empowers those who are encouraged to give the “heckler’s veto” and make threats. If a speaker isn’t going to violate the First Amendment, it’s up to the university to protect her and remove those who try to shout her down.

h/t: Luana Maroja

Walter Isaacson in trouble for pushing a heckler at Tulane

April 4, 2024 • 9:30 am

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.