BY HANK REICHMAN

“A university without student protests against visiting speakers would be like a forest without birds.” — Timothy Garton Ash, Free Speech: Ten Principles for a Connected World, p. 155

This is the first of three four posts in a series.

The issue of the right of controversial and sometimes deeply offensive invited speakers — often with minimal to no academic credentials — to speak on college and university campuses has made headlines recently.  Protests against right-wing firebrands Milo Yiannopoulos, Richard Spencer, and Ann Coulter, as well as the less obviously provocative conservatives Charles Murray and Heather MacDonald, have resulted in the cancellation of talks under threats of violence.  Spencer, a self-professed white supremacist, spoke at Auburn University only after a court ordered the school to allow his appearance.  Murray’s talk at Middlebury and MacDonald’s at Claremont-McKenna College were obstructed in ways that physically endangered the speakers as well as those who wished to hear — or protest against — them.  Yiannnopoulos’s appearance at Berkeley — which I discussed in a previous post — was cancelled after outside protesters set fires and broke windows.  A subsequent appearance by Coulter at Berkeley was canceled after the university claimed it could not find a safe venue for her talk on the date and time requested.

Predictably, the affected speakers and their supporters have used these incidents to argue that American colleges and universities have become bastions of intolerance and “political correctness.”  In a statement, Coulter called Berkeley a “thuggish institution” that had snuffed out the “cherished American right of free speech.”  In the National Review, Stanley Kurtz claimed that “campus free speech is more besieged nowadays than it’s been in decades.”  Concern for free speech on campus is not limited to right-wing venues.  Donald Downs, the Alexander Meiklejohn Professor of Political Science at the University of Wisconsin, has written that on campus “free speech is more threatened than ever.”  Writing in the Chronicle of Higher Education, Jonathan Haidt, a social psychologist at NYU, claims that “intimidation is the new normal on campus.”

As I will argue later such sweeping claims are at minimum exaggerated.  In reality, despite all their many flaws, colleges and universities are probably still the places in America where the diversity of views to be found is most extensive and least restricted, certainly when compared to the mass media, the corporate world, or religious institutions.  And despite their reputation as both frightened “snowflakes” and bullying “thugs,” student protesters have been far more willing to engage in constructive dialogue than sensationalist media reports would suggest.  On the other hand, as Corey Robin observes, the challenge at many, maybe even most, colleges and universities — “has never really been how to keep speakers off campus; it has almost always been how to get them on campus.”

Still, it would be a mistake to minimize the danger to free expression posed by these recent attacks on controversial speakers.  In my previous post on Yiannopoulos I wrote: “repulsive as his ideas and actions are, Yiannopoulos has the right to speak publicly, including on college campuses.  Under the First Amendment public colleges and universities are clearly legally bound not to bar him nor to create viewpoint-based obstacles (like inordinately high “security fees”) to his appearances.  Under the broader principles of free expression, all institutions, public or private, and all members of the higher education community should refrain from efforts to block his appearances.”  Similarly, in response to the events surrounding Murray’s speech at Middlebury, John Wilson has argued correctly on this blog that “shouting down speakers is absolutely wrong.”

As the AAUP put it in our 1994 statement On Freedom of Expression and Campus Speech Codes, “On a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed. . . .  An institution of higher learning fails to fulfill its mission if it asserts the power to proscribe ideas—and racial or ethnic slurs, sexist epithets, or homophobic insults almost always express ideas, however repugnant. Indeed, by proscribing any ideas, a university sets an example that profoundly disserves its academic mission.”

But the discussion cannot end there.  For as legitimate as concern for the rights of controversial speakers surely is, the rights of those who object to and protest their ideas must also be a concern, as must the safety of all on campus.  As one professor and administrator argued in a controversial op-ed piece in the New York Times, “What is under severe attack, in the name of an absolute notion of free speech, are the rights, both legal and cultural, of minorities to participate in public discourse.”  Moreover, these controversies raise difficult questions about the relationship between free speech, a liberal democratic value, and academic freedom, which is largely a meritocratic value.  Academic freedom aims to protect scholars from retaliation based on their teaching, research, or work as public intellectuals.  Academic freedom is therefore not founded on the “free marketplace of ideas,” but on professional expertise.  Hence from the perspective of the professoriate threats to academic freedom from politicians, trustees, and corporatizing administrators appear much more ominous than efforts by impassioned sophomores to silence outside provocateurs like Coulter.  As David Faris of Roosevelt University puts it, “at Berkeley, Ann Coulter actually has more free speech rights than a tenured professor,” whose teaching and research must conform to disciplinary standards irrelevant to someone like Coulter.  I don’t generally agree with Stanley Fish’s cramped definition of academic freedom (see here), but I must admit that he has a point when he argues that “free speech is not an academic value.”

I therefore want to explore these issues and comment on some of the responses to these events at some length in a series of three posts, each comprised of several nearly self-contained mini-essays.  In this first entry I will recount the history of the AAUP’s position on invited speakers and offer a number of practical arguments that have been made for why protecting the freedom of speech of even the most offensive and academically illegitimate speakers is essential.  I then turn to the events at Berkeley surrounding the Coulter cancellation in order to correct some widespread misconceptions.  In conclusion, I offer some observations about “the heckler’s veto,” including an account of some of my own experiences with that phenomenon.

In Part II I hope to situate the issue of invited speakers in its contemporary context, responding to arguments that “the parameters of public speech must be continually redrawn to accommodate those who previously had no standing,” while also pushing back against arguments that attempts to silence speakers are more dangerous than other, less well-publicized threats to academic freedom; that conservative ideas are regularly silenced on campus; that left-wing and minority students reject dialogue; and that even non-violent protest against offensive (and often academically discredited) ideas should be seriously restricted, if not stifled, in the name of protecting free speech.  [UPDATE 6/11/17:  Owing to the unwieldy length of the projected Part II, that installment has been divided into two parts.  The first of the two is here.]  Lastly, Part III IV will probe some theoretical issues concerning the relationship of academic freedom to free speech and conclude with a discussion of intellectual challenges to the whole idea of free speech and tolerance, with a special focus on a small classic of the 1960s, A Critique of Pure Tolerance.

History and the Position of the AAUP 

Controversies over invited speakers on campuses are not new.  In 2007, the late Jordan Kurland, who worked for over half a century in the AAUP’s Department of Academic Freedom, Tenure and Governance, published a survey of the AAUP’s historic opposition to efforts to ban outside speakers.  “Since its founding,” he wrote, “the AAUP has been concerned with infringements of academic freedom when colleges interfere with invited speakers.”  In 1957, the Association’s annual meeting adopted a resolution in response to the issuance of a list of “radical and/or revolutionary speakers” by the House Un-American Activities Committee (HUAC), which led many institutions to cancel appearances by individuals on the list.  The resolution declared that “it is educationally desirable that students be confronted with diverse opinions of all kinds” and that “any person who is presented by a recognized student or faculty organization should be allowed to speak on a college or university campus.”

In 1963 the North Carolina legislature considered a bill sponsored by the American Legion that would prohibit the use of state facilities, including universities, for speeches by any person known to be a member of the Communist Party or to advocate the overthrow of the federal or state constitutions, or to have pleaded the Fifth Amendment when asked about allegedly subversive associations.  After civil rights demonstrators staged sit-ins, the bill was fast-tracked and enacted into law.  Efforts to repeal the ban led the AAUP to respond with “Restraints on Visiting Speakers” resolutions at its 1966 and 1967 annual meetings.  These referred to the “freedom to hear” as “an inseparable part of academic freedom.”

In the 1970s Nobel Prize-winning physicist William Shockley began to argue abrasively (and ignorantly) that differences in intelligence had a racial basis, a position also advocated by educational psychologist Arthur Jensen, although not by all but a minuscule number of qualified experts.  (Their views are not dissimilar to those advocated today by Charles Murray.)  The two, however, began well-publicized lecture tours that led to disruptions of their talks and to college and university administrations withdrawing invitations.  In response AAUP’s Committee A in 1974 approved a statement On Issues of Academic Freedom in Studies Linking Intelligence and Race. The committee, the statement said,

categorically rejects any proposal to curtail the freedom to report research studies or the interpretive conclusions based on them, however unpalatable either may be.  Mindful that the quality of research endeavors and the conclusions drawn from them may reflect varying degrees of scientific rigor, we assert nonetheless the paramount virtue of the open forum for the dissemination of ideas through publication, exposition, and debate.  No less importantly, we commend open channels of expression as the basic source of counter-positions and correctives, where critics of distasteful views can express themselves without restraint.

One result of the turmoil surrounding the two men was that they became famous, while the overwhelming majority of cognitive scientists who forcefully rejected their ideas remained all but anonymous.  This was hardly the fault of the academy.  It was the mass media — and, ironically, to some degree the protesters who sought to silence them — that built a platform for Shockley and Jensen to spread their views despite the near-total rejection of their work by qualified peers.

Of course, both Shockley and Jensen were themselves scholars and faculty members, however far out of the mainstream.  Hence the protections the AAUP sought to extend to their research were those of academic freedom, not the freedom of speech the Association advocates for non-scholarly invited speakers.  Such a speaker, however, was U.S. Ambassador to the United Nations Jeane Kirkpatrick, who in 1983 was prevented from speaking at several campuses by disruptions from students and others who objected to the foreign policy of the Reagan administration.  In a few cases violence was threatened and one institution withdrew an invitation to speak because, it was claimed, Kirkpatrick’s safety could not be guaranteed.  Much like today, the incidents were highly publicized and led Committee A to issue a statement On Issues of Academic Freedom in Interference with Invited Speakers in April 1983.

The statement read:

In recent weeks there have been widely reported accounts of several instances in which the United States ambassador to the United Nations, invited to address a university audience, was prevented from completing her remarks because of disruptions by persons in attendance, presumably because they disagreed with her views or those of the administration which she represents. On one occasion, an invitation to her to serve as commencement speaker was withdrawn by college officials because they could not assure her security while visiting the campus.

The Association’s Committee A on Academic Freedom and Tenure, responding to these incidents as it has to similar incidents on previous occasions, emphasizes that the freedom to hear is an essential condition of a free university and an inseparable part of academic freedom. Committee A deplores interference with the right of members of an academic community to hear on campus those whom they have invited to speak. The right to access to speakers on campus does not in its exercise imply either advance agreement or disagreement with what may be said, or approval or disapproval of the speaker as an individual. There can be no more appropriate forum for the discussion of controversial ideas and issues than the college and university campus.

Committee A reaffirms its expectation that all members of the academic community will respect the right of others to listen to those who have been invited to speak on campus and will indicate disagreement not by disruptive action designed to silence the speaker but by reasoned debate and discussion as befits academic freedom in a community of higher learning.

This was followed by a joint statement issued by the AAUP, the American Council on Education, the National Coalition of Independent College and University Students, the National Organization of Black University and College Students, and the United States Student Association, which called “upon our fellow students, teachers, and administrators to reaffirm our traditional commitments to the freedom to speak and to listen . . . so that the hecklers’ veto does not drown out free speech and debate.”

Kurland concluded his account of the AAUP’s engagement with this issue by noting several instances of attempts to cancel the appearance of an invited speaker owing to alleged threats to national security after September 11, 2001:

Pressures to cancel a scheduled speech were unsuccessful in the cases of a leading Palestinian spokesperson at Colorado College and at the University of Colorado and of an Irish poet at Harvard University. Pressures on the sponsors did, however, bring about the cancellation of a speech by a British cleric at the College of the Holy Cross in Massachusetts, and at Rockford College in Illinois a commencement speech by a Pulitzer Prize reporter who opposed the war in Iraq was drowned out by audience members who continually chanted “God Bless America.”

Several professors in Middle East studies programs at major American colleges and universities have been under steady attack by various pressure groups for being too sympathetic in their teaching and writing to Islamic interests. Those professors have by and large had their academic freedom supported by the administrations of their own institutions, but opposition to their scheduled speaking on other campuses has brought threats of cancellation.

Let’s Get Practical

The AAUP’s position on invited speakers is based on a fundamental principle: that the academic freedom of the faculty is closely tied to the freedom of students to confront and engage with ideas, however offensive — or, frankly, stupid — without restriction.  I will discuss this more in a future entry in this series.  Nonetheless, some students angered by offensive speakers remain unswayed by this sort of argument from principle.  They have come to believe that both freedom of speech and academic freedom must have limits.  In particular, they argue that “hate speech” should not be protected.  And it isn’t just students.  According to one recent poll, some 30 percent of Americans — including a quarter of Trump voters — believe that universities should not allow guest speakers “if the speaker’s words are considered to be hateful or offensive to some.”  The percentages are higher among Democrats and women, but with little variation by age (among those aged 18-29, support for banning speakers stands at 27%).

So perhaps the argument will be more effective if it is made on more self-interested grounds.  As Conor Friedersdorf wrote,

If these students succeed in changing free-speech norms in any realm, so that expression is more routinely suppressed when dubbed injurious or hateful or libelous, the history of speech restrictions on and off campus — a history routinely ignored by student censors — suggests marginalized communities will be hardest hit by their pyrrhic victory.

Friedersdorf cites Georgetown University professor David Cole, now national legal director of the ACLU, who noted that “in a democratic society the only speech government is likely to succeed in regulating will be that of the politically marginalized.  If an idea is sufficiently popular, a representative government will lack the political wherewithal to suppress it, irrespective of the First Amendment.  But if an idea is unpopular, the only thing that may protect it from the majority is a strong constitutional norm of content-neutrality.”

Friedersdorf also cites Henry Louis Gates Jr.’s masterful 1993 critique of critical race theory and defense of free speech, “Let Them Talk,” which quotes legal scholar Kenneth Karst’s finding that “statutes proscribing abusive words are applied to members of racial and political minorities more frequently than can be wholly explained by any special proclivity of those people to speak abusively.”  Hence, Gates concluded, attempts to ban hate speech or even harassing insults may well hurt minorities as much or more than whites.  To support this contention Gates recounted a case in which the now largely abandoned “fighting words” exception to the First Amendment, sometimes invoked as a basis for banning “hate speech,” was applied with disastrous results:

An apparently not atypical conviction––upheld by the Louisiana state court––was occasioned by the following exchange between a white police officer and the black mother of a young suspect.

He: “Get your black ass in the goddamned car.”

She: “You god damn mother fucking police––I am going to the Superintendent of Police about this.”

No prize for guessing which one was convicted for uttering fighting words.

Gates persuasively argued that those who demand from institutions repressive actions and not “mere words” condemning hate speech, back themselves into an awkward corner.  “Why is it ‘mere words’ when a university only condemns racist speech, but not ‘mere words’ that the student utters in the first place?  Whose words are ‘only words’?  Why are racist words deeds, but anti-racist words just lip service?” he asked.

A similar point has been made more recently by Aaron Hanlon of Colby College in an April 24 piece in The New Republic.  “Students won’t win the rhetorical battle by disrupting campus events,” he contends. “Speakers with a hateful message become martyrs of the ‘tyrannical campus left’ when protesters prevent them from speaking—particularly when things turn violent, as happened when Murray visited Middlebury College earlier this year.”

In this light, Catherine Rampell, a columnist at the Washington Post, has offered “five reasons that granting your ideological enemies a chance to speak benefits you, even — perhaps especially — when you believe their words are dangerous or hateful.”  She writes:

First, you’re giving the speakers you abhor a much bigger platform when you martyr them.

As I’ve written before, censorship tends to generate more public interest, not less, in whatever message is being censored. This is true for paintings as well as paid lecturers.

Professional troll Milo Yiannopoulos grew especially adept at monetizing this phenomenon. Violent protesters helped him gain attention, speaking gigs and (at least until his comments about sex with underage boys went viral) a book deal. He and other, more-principled conservatives would never have gained their large followings absent the telegenic hysterics of angry liberals.

Second, suppressing ideas you disagree with dulls your ability to cogently, convincingly rebut them.

If you want to win arguments — let alone elections — honing your rhetorical chops will be crucial. Getting up and asking a tough question at a speech is good practice. Especially for when you’re no longer able to call in an in-loco-parentis administrator to punish or expel your adversaries.

Third, and relatedly, you’re not actually crushing opposing views by shushing them; you’re merely forcing them underground, where they can fester and mutate into more dangerous forms. . . .

If you’re right, as you believe you are, it’s better to engage, argue and attempt to dissuade your opponents, out in the open. As Brookings Institution scholar Jonathan Rauch once put it, “Suppressing speech that’s wrong-headed and hateful is like curing global warming by breaking the thermometers. The root problem is fear and ignorance and hatred, and you go for that by correcting people.”

Fourth, you may not realize it yet, but you’re breeding resentment and reactionaryism — and turning potential allies into enemies. . . .

Finally, the same censorship tools you’ve developed to silence your enemies will be used against you.

Right-wing students and allies have already begun adopting tactics to intimidate intellectual enemies and muzzle ideas they dislike, including through trigger warnings, professor “watchlists,” proposed ideological litmus tests for college hiring and even speech codes.

Thoughtful conservatives have begun to offer similar advice to students on the right.  In a New York Times op-ed, “Advice for My Conservative Students,” Colby’s Hanlon recalled his own experience as a student conservative.  “I was never a victim,” he writes.

My message to conservative students is that neither are you.  The leaders and pundits who say otherwise are doing you a disservice.  Sure, they’re getting a lot of clicks and selling ads by framing your struggle as one of an embattled minority silenced by the overbearing liberalism of academia, but that false equivalence is not helping you prepare for the wider world.

Outside of college, most people don’t care about what you care about — not because you’re a conservative but because you’re a person in a diverse world, ideologically and otherwise.  The better you are at convincing people to care about what you care about, the more politically effective you will be.  You know the world doesn’t love a victim.  Don’t adopt a posture you disagree with just because it plays well in conservative media.

Such advice might well be taken by all protesters, whatever their political views.

As I stressed in my earlier post on Yiannopoulos, “I’m not saying people shouldn’t protest his appearances, but I am saying that they should focus their fire on his noxious ideas and behavior and not on his right to speak.”  When speakers like Yiannopoulos or Coulter succeed in making the discussion about their freedom of speech, their dangerous ideas and the ideas of those who so irresponsibly invite them to speak are let off the hook.

Ann Coulter, Outside Money, and Berkeley: What Actually Happened

Ann Coulter

In his magisterial two-volume history of political thought, On Politics, Oxford scholar Alan Ryan wrote: “Fascism is not a creed looking for an interesting debate with its rivals.” (p. 938)  While I don’t think either Yiannopoulos or Anne Coulter can usefully be labeled fascist (Spencer is another matter, however), the lack of interest in genuine debate fits their approach as well.  Indeed, neither Yiannopoulos nor Coulter was invited to speak at Berkeley to discuss ideas; they came instead merely to provoke, some might argue to brawl.  “Coulter is like a distorted Tinker Bell,” writes Washington Post blogger Alyssa Rosenberg.  “It’s not applause that saves her from falling out of existence, it’s shock and jeers.”

Yet as a sort of bizarre performance artist Coulter commands significant fees for her appearances, usually in the $20-30,000 range per speech.  Few student groups can afford that kind of money, but Coulter’s appearances, while dependent on the willingness of a campus group (almost always the Young Republicans) to extend a formal invitation, are, like those of most prominent conservatives, actually sponsored by outside organizations.  In the case of Coulter’s Berkeley invitation, this was the Young America’s Foundation (YAF), working through a non-partisan campus group called BridgeUSA and the Berkeley College Republicans.

Founded in the late 1960s as a non-profit arm of the Young Americans For Freedom, YAF is a tax-exempt group that claimed more than $59 million in assets in 2014, with expenditures of $23 million.  About half of this money goes to organizing and promoting campus speaking tours and paying generous honoraria to a roster of more than 90 conservative celebrities, including Dinesh D’Souza, David Horowitz, Ted Nugent, and, of course, Coulter.  During the final three weeks in April YAF sponsors roughly one event each day nationwide.  The organization boasts that campus groups can seek “logistical and financial assistance [from YAF] to host a big-name conservative speaker.”

According to reports in the Washington Post and by Alex Kotch on Alternet, the network of funding organizations sponsoring and promoting campus talks by conservative speakers is large and growing.  Charles Murray’s recent appearances at Columbia, Duke, Notre Dame, and Villanova — all without incident — as well as at Middlebury were sponsored by the American Enterprise Institute, which gets most of its funding from prominent conservative donors, including members of the Koch, DeVos and Bradley families.  The smaller Intercollegiate Studies Institute, founded in the 1950s by William F. Buckley, also sponsors speakers, although it shies away from the kind of provocations in which YAF specializes, counting among its stable New York Times columnist Ross Douthat.

Now, there is nothing wrong with all this in principle.  These groups have every right to support speakers with whom they agree, just as they are entitled to fund university programs with which they sympathize, provided they conform to established norms of academic freedom and shared governance (on outside funding see my recent “response to Phil Magness.”)  Indeed, I wish the AAUP and other like-minded groups could obtain even a fraction of this kind of funding to support our own campus speaker programs.  [If anyone reading this has access to such funding and is interested in discussing support for an AAUP speaker program, please contact me!]  But the growing and disproportionate influence of such outside right-wing money on the campus speech debate must be taken into account.  It is completely wrong to demand that all political speech of one perspective be “balanced” by opposing speech.  Nevertheless, the remarkable political imbalance in the funding of prominent speakers on campus should raise concern, especially insofar as it may be part of a broader and well-funded effort to reshape higher education in a specific ideological direction from outside both the academy and the democratic political process.  Most important, as long as such groups insist on sponsoring individuals like Yiannopoulos and Coulter — whose modus operandi is to ridicule and bully not only their opponents but all those they deem beyond the pale — it will be difficult to convince protesting students and many faculty members that the controversy they arouse is about meaningful intellectual exchange.

This, therefore, is part of the context in which Coulter’s aborted visit to Berkeley last month must be assessed.  Another part of that context, of course, was the violence that greeted Yiannopoulos’s visit earlier this spring.  Caught unprepared for the assault on the event mounted by outside demonstrators, the Berkeley administration and the event sponsors agreed to cancel that speech.  Then in early April, for the second time since the Trump inauguration, downtown Berkeley — but not the university campus — witnessed sporadic street-fighting between armed Trump supporters and counter-demonstrators.  Therefore, when a student group announced plans to host Coulter on April 27, the administration knew it was facing a challenge.  Ultimately, they decided that a sufficiently secure venue could not be found on that date, although they offered alternate dates.  Coulter then announced this was unacceptable, vowing to speak on April 27 anyway, although eventually she canceled her talk.

For many, especially on the political right, the cancellation was a defeat for free speech.  The “heckler’s veto” had triumphed, they said.  YAF and the Berkeley College Republicans filed suit in federal court, accusing the university of trying to “to restrict conservative speech” on campus.  “Berkeley promises its students an environment that promotes free debate and the free exchange of ideas,” the lawsuit said, but the promise was breached “through the repressive actions of university administrators and campus police.”

The lawsuit demands that the Berkeley College Republicans be allowed to “bring speakers of its choosing to speak on campus.”  It also says the College Republicans and the Young America’s Foundation are entitled to unspecified “monetary damages arising from the unconstitutional actions” of university administrators, as well as legal costs.

In a statement, the ACLU of Northern California said the charges “if true, raise serious concerns that the University fails to understand its constitutional obligations to protect free-speech rights.”  Their statement continued:

UC Berkeley cannot limit speech because of its content or because of the viewpoint it espouses.  Nor can it help others to do so by canceling, delaying, or moving an event in reaction to threats of disruption or violence, unless doing so is truly necessary to preserve public safety or some other compelling government interest.  When the government – in this case the University and the police – anticipates that constitutionally protected speech may prompt a violent response, it has an obligation to protect free speech while also maintaining order: as one federal court put it, “the police must permit the speech and control the crowd; there is no heckler’s veto.”  If some changes to the planned event are truly necessary to preserve public safety, they must go no further than is truly necessary to reduce the risk to a manageable level.

According to the university, however, the sole aim was to reduce risk through legally permissible regulation of the time, place, and manner of speech.

“Contrary to some press reports and circulating narratives, the UC Berkeley administration did not cancel the Coulter event and has never prohibited Ms. Coulter from coming to campus,” Berkeley Chancellor Nicholas Dirks wrote in an April 26 email to the campus community.  “Instead,” he continued,

we received a request to provide a venue on one single day, chosen unilaterally by a student group without any prior consultation with campus administration or law enforcement.  After substantial evaluation and planning by our law enforcement professionals, we were forced to inform the group that, in light of specific and serious security threats that UCPD’s intelligence had identified, there was no campus venue available at a time on that date where the event could be held safely and without disruption.  We offered an alternative date for the event (which was rejected) and offered to work with the group to find dates in the future when the event could occur.  Throughout this process our effort has been to support our students’ desire to hold their event safely and successfully.

Sadly and unfortunately, concern for student safety seems to be in short supply in certain quarters. We believe that once law enforcement professionals determine there are security risks attendant to a particular event, speakers need to focus on what they actually want to achieve.  If it is to speak to a large audience, to make a case for their positions, to engage students in discourse, we stand ready to make that work on any date when a protectable venue is available.  If, on the other hand, the objective is stir up conflict and violence without regard for the safety, rights and interests of others in order to advance personal interests, we cannot abandon our commitment to the safety of our community members.

In an op-ed published in the New York Times April 26, Dirks acknowledged that “violence, of course, is a silencing tactic.  It is the antithesis of open inquiry and of all the university represents.”  But, he continued,

The question for Berkeley now is whether our commitment to the tradition of free speech extends to the point where we must allow our campus to be used for a publicity circus that has little to do with liberal discourse. . . .

I agree that inquiry on college campuses is not always as open as it should be, and I agree with those who suggest that we need to be better at teaching the principles and history of jurisprudence around the First Amendment.  After all, the First Amendment was written to protect against the possible tyranny of majority factions and the government.

But the use of force has entered the discourse around the First Amendment in an alarming way.  The university has been accused of not responding aggressively enough against our own students, and the institution must now invest more public tax dollars in equipping campus police forces to subdue campus protests — even though the perpetrators of violence have been groups with no campus affiliation.

Free speech may be the new clarion call of the far right, but the real subtext of those who try to disrupt institutions built on principles of openness and inclusion with violence is only barely disguised.  Berkeley’s status as a symbol of free speech and protest makes it a tempting site for the staging of physical confrontations between both sides.

BridgeUSA, which had previously hosted Maria Echaveste, a former adviser to President Bill Clinton, on April 17, had initially invited Coulter on the recommendation of the College Republicans in an attempt to spur dialogue.  But Coulter’s fees were paid by YAF, which in public statements acted as if it were the official sponsor of the talk.  According to a statement by Prandhav Jandhyala, the group’s founder, BridgeUSA’s intent was “for the event to be a debate-style, question-and-answer session with rebuttals to allow for a dialogue.  Coulter would have fielded tough questions about her views from students in the audience, and we would have done our part to ensure that she would answer those questions in their entirety and give students the opportunity to respond.  Rather than repeating the failures of Yiannopoulos’s event, we wanted to create a national example for what free discourse and the questioning of ideas should look like here at Berkeley.”

Jandhyala continued:

What disheartens me is seeing the words “free speech” used as a tool to garner headlines and publicity. The whole purpose behind the idea of free speech has been lost. . . .

Conservative groups, in their attempt to frame this complex series of events as a “free speech battle” by suing Berkeley’s administration, have used the label of free speech as a tool for publicity.  Our organization prides itself on the values of free inquiry and discourse, yet we understand the impossible trade-off that the university faces: the administration is caught between upholding its commitment to free speech and its responsibility for student safety.

The administration attempted to work with us, to propose alternative dates this semester and next semester where a defensible venue would be available.  In balancing the concerns of protecting students and allowing peaceful protest, they never backed down from their commitment to help us bring Coulter to campus.  It is easy and expedient to blame the university in this situation, but that avoids the actual problem.  The true issue here is not the way that the university handled this situation; rather, it is the fact that this trade-off between student safety and free speech even exists in the first place.

He concluded:

We refuse to meet speech with violence and oppression.  We refuse to invoke the right to free speech to inflame, attack and generate publicity.  We refuse to accept the current status quo surrounding speech on university campuses across the country. Instead, we will continue to pursue our mission of creating environments in which students can engage with their peers as free thinkers, express their opinions without fear and have their beliefs, suppositions and prejudices challenged rather than dismissed.  Only through these means can we begin to bridge the gap brought on by polarization and allow for a free exchange of political ideas.

Thoughts on the “Heckler’s Veto”

The Coulter cancellation, as well as that of Yiannopoulos at Berkeley and Murray at Middlebury, can be seen as classic, if extreme, examples of what free speech scholars call the “heckler’s veto.”  In the strict legal sense, a heckler’s veto occurs when a speaker’s right is curtailed or restricted by the government in order to prevent the possibility of a violent reaction by hecklers or other protesters.  In common parlance, the term is used to describe situations where hecklers or demonstrators silence a speaker without intervention of the law.

Legally, the courts have in the past upheld the right of authorities to shut down speech out of concern for safety.  In Feiner v. New York, handed down by the Supreme Court in 1951, Chief Justice Fred M. Vinson, writing for the majority, held that police officers acted within their power in arresting a speaker if the arrest was “motivated solely by a proper concern for the preservation of order and protection of the general welfare”.  But in Hill v. Colorado, the Supreme Court in 2000 found that the government cannot grant power to a private actor, the heckler, to unilaterally silence a speaker because of a concern for the violent reaction by the heckler.

Outside of the legal arena the term has come to mean that the heckler creates the veto and suppresses the speech by creating the violent reaction or the threat of violent reaction.  The end result of this is usually that the individual who is potentially being heckled will self-censor for fear of the reaction it might create.  Alternately, the heckling will be so loud as to prevent any meaningful communication from the speaker to the audience.  The late Nat Hentoff wrote that “First Amendment law is clear that everyone has the right to picket a speaker, and to go inside the hall and heckle him or her—but not to drown out the speaker, let alone rush the stage and stop the speech before it starts.  That’s called the ‘heckler’s veto’.”

Permitting speakers to be shouted down, allowing demonstrators to block access to speeches, or failing to provide sufficient security to ensure a speech will be delivered — all forms of the heckler’s veto — amount to impermissible violations of the principles of free expression and, in public institutions, of the protections guaranteed by the First Amendment.  But, one might ask, what about the expressive rights of those who heckle?

In a recent discussion of free speech on campus, Greg Lukianoff, executive director of the Foundation for Individual Rights in Education (FIRE), said, “Universities should be a chaotic paradise.  It should be an exciting, challenging, sometimes difficult place but never all that quiet.”  CUNY historian of student movements Angus Johnston went further: “I think it’s crucial that free speech not just be an idea, and it not just be something that is safe and civil.  There has to be space for speech that is not only rowdy, and disruptive, and aggressive, and obnoxious, but also speech that is attempting to change things.”

In some ways both sides in the recent incidents have embodied aspects of this rough-and-tumble vision of free speech.  Coulter and Yiannopoulos are nothing if not obnoxious, but it is equally true that their campus critics can be rowdy and disruptive, even when they eschew efforts to silence opponents.  And if hecklers must be deprived of their veto, should they not still retain their right to, well, heckle?  Surely, for example, the woman who laughed out loud at Jeff Sessions’ confirmation hearing could be considered a heckler of sorts.  But did her outburst warrant the jail sentence she received?  In that case, whose free speech rights were trampled?

When do impassioned disruption and uncivil dialogue cross the line into silencing behavior?  Are a few boos or jeers (at, for instance, a congressional town hall) sufficient to constitute a heckler’s veto?  And does it matter whether the speaker being heckled is a powerful figure with a near-guaranteed platform — e.g., Jeane Kirkpatrick — or someone less well known, struggling to promote iconoclastic ideas?  In general, of course, academics should promote reasoned discourse and polite consideration of the rights of others.  But protest that fails to disrupt is hardly protest at all.  It’s not always easy, therefore, to draw a clear line between behavior that is unruly but protected and behavior that amounts to a de facto heckler’s veto, much less to respond appropriately to such behavior.

One celebrated case involving a heckler’s veto was that of the so-called Irvine 11.  On February 8, 2010, Israeli Ambassador to the United States Michael Oren was invited to speak at the University of California at Irvine.  Protesters began to disrupt the event by having a series of students yell so that the ambassador could not be heard.  After the first disruptions, the audience was admonished that such behavior was not acceptable within the university and that those who engaged in such conduct would be arrested and face student disciplinary proceedings.  Still, eleven individuals rose and shouted so that the ambassador could not be heard.  At one point he left the stage, but was persuaded to return and deliver his address.  All eleven were arrested, and ultimately convicted of criminal conduct.

Writing about the incident, UC Irvine law dean and First Amendment scholar Erwin Chemerinsky wrote:

there are now posters around campus referring to the unjust treatment of the “Irvine 11” and saying they were just engaging in speech themselves.  However, freedom of speech never has been regarded as an absolute right to speak out at any time and in any manner.  Long ago, Justice Oliver Wendell Holmes explained that there was no right to falsely shout “fire” in a crowded theater.

The government, including public universities, always can impose time, place and manner restrictions on speech.  A person who comes into my classroom and shouts so that I cannot teach surely can be punished without offending the First Amendment.  Likewise, those who yelled to keep the ambassador from being heard were not engaged in constitutionally protected behavior.

Freedom of speech, on campuses and elsewhere, is rendered meaningless if speakers can be shouted down by those who disagree.  The law is well established that the government can act to prevent a heckler’s veto — to prevent the reaction of the audience from silencing the speaker.  There is simply no First Amendment right to go into an auditorium and prevent a speaker from being heard, no matter who the speaker is or how strongly one disagrees with his or her message.

The remedy for those who disagreed with the ambassador was to engage in speech of their own, but in a way that was not disruptive.  They could have handed out leaflets, stood with picket signs, spoken during the question-and-answer session, held a demonstration elsewhere on campus or invited their own speakers.

But Chemerinsky also spoke out against prosecuting the students:

The students violated California law, which makes it a misdemeanor offense to disrupt a public meeting.  The jury which found them guilty faithfully applied this law to the facts of the case.

But the fact that conduct violates a law does not mean that it should be prosecuted.  Prosecutors, state and federal, constantly make choices about which crimes to prosecute. . . .

Although campus demonstrations are common, rarely have they led to criminal charges or convictions.  Unless there is harm to persons or property – or a serious threat of this – district attorneys are almost always content to leave discipline to school authorities.  This is exactly what [Orange County District Attorney Tony] Rackauckas should have done.  No one was hurt, and no property was damaged.  After the disruptive students were escorted away, Ambassador Oren finished his speech.  The students acted wrongly, and they were punished by the campus; there was no need for anything more.

Instead, 10 students now have criminal convictions on their records.  A matter which should have been put to rest 18 months ago has become a continuing source of division on campus and in the community.

This prosecution has attracted national and even international attention.  It has made martyrs of students who behaved wrongly, but who don’t deserve to be criminals.  It has unnecessarily spent taxpayer dollars on a criminal case and on the certain appeals.  It deepened wounds that will be difficult to heal.

It is inexplicable to me why the district attorney prosecuted this case.  What is clear is that he failed in his most important duty: to do justice.

During the Vietnam War in the 1960s UN Ambassador Arthur Goldberg came to UC Berkeley to debate the war at a mass meeting of over 10,000 held in Harmon Gym.  Chairing the meeting was the late Reginald Zelnik, my personal mentor and an early faculty supporter of the Free Speech Movement.  To put it mildly, Goldberg’s defense of the war was not popular with Berkeley students and his remarks were repeatedly interrupted by catcalls and jeers.  Zelnik — whose prestige among campus radicals was high — repeatedly silenced the crowd, allowing the discussion to proceed to its conclusion, after which a straw vote was held and those attending overwhelmingly, and even more powerfully because they had heard him out, rejected Goldberg’s position.

I thought a lot about this story when on two different occasions I was thrust into a position not unlike that of my late mentor.  In 2009, Mark Rudd, my college classmate, leader of the 1968 student rebellion at Columbia University, and participant in the notorious Weather Underground, published a memoir, Underground, in which he advocated non-violence and was self-critical of some of his past actions.  As a Columbia student Rudd disrupted a talk by General Lewis Hershey, director of the Selective Service System, by shoving a cream pie in the general’s face.  The speech went on, but the point was made.  Heckler’s veto?

Learning that Rudd would be in San Francisco to promote his book and with the support of my department and my dean, I invited him to speak at my university across the bay.  A local public television station agreed to film the talk.  But when we arrived, among those who packed the room to overflow were several retired San Francisco police officers convinced that Rudd was responsible for the death of a fellow officer during the 1970s (Rudd denies it and no one was ever charged in the case), as well as one Larry Grathwohl, the only law enforcement agent to successfully infiltrate the Weather Underground.

I was chairing the event and soon had my work cut out for me.  The shouted curses and insults from the officers’ group commenced even before Rudd began his talk.  I repeatedly pleaded for calm, urging the protesters to allow Rudd to speak and promising they could ask questions or make brief statements later.  One of the ex-officers used a hand-held camcorder to record not only Rudd’s remarks, but reactions from the largely student audience, which several of those attending later told me intimidated them from speaking during the question period.  However, because we had agreed to allow filming of the event, I could not, I believed, ask the cameraman to stop without also terminating the TV station’s efforts.

There was quite a ruckus and soon multiple campus police officers arrived.  Although they later confessed to me their own sympathies for the hecklers (and hostility to the former “terrorist”), they offered to remove and if necessary arrest the disrupters.  It would have been within our rights under the law governing the heckler’s veto to do that, but I was certain such action would really be a defeat for free speech so I declined the offer.  The officers stood by as tensions waxed and waned and the program proceeded.  Those in attendance saw history come to life, as the passions of the past were reenacted in that room.  In the end, Rudd did something masterful.  He had begun with a reading of excerpts from his memoir and proceeded to respond to questions, both friendly and hostile.  Then, after reading a passage from his book describing Grathwohl’s treachery, Rudd invited Grathwohl himself to the stage to offer a response, courteously declining, I might add, an opportunity to tell something about Grathwohl’s past behavior that would without question have lost him any chance of sympathy from the audience — a courtesy I will also extend here to the now-deceased Grathwohl.  But he too had his say, the audience heard him out, and the event concluded successfully.

Some time later I had occasion to briefly direct our university’s short-lived program in Jewish Studies, funded by an outside donor with major Zionist connections.  Although the program was to be largely secular and represent multiple views of Judaism and the Jewish community, given our donor it was clear that we could hardly turn down an offer to speak on campus from the Israeli Consul General in San Francisco.  This was around the time of the Irvine events and I was concerned about possible disruption, even violence.  So in advance of the appearance I met with leaders of the Muslim Student Association (MSA), assured them that we did not have a “Zionist agenda” and were open to future cooperation — in fact, we later cosponsored a film showing with them — and invited them to attend the talk with assurance that there would be a question period during which they could speak.

The results were positive.  The MSA members ended up comprising almost half the audience.  They were respectful and listened attentively, offering only the mildest of potentially disruptive comments.  (A local radio journalist in attendance, however, was much less polite, several times interrupting the talk she was allegedly “covering.”)  Encouraged, the Consul General extended his question period and engaged in a fascinating dialogue with the students that went on for nearly an hour, to the enlightenment of the uncommitted in attendance.  Was anyone’s mind changed?  I doubt it, but this was precisely the kind of reasoned discussion of a heated issue that universities — and perhaps only universities — can best facilitate.  Unfortunately, a few weeks later the Consul General spoke at nearby San Jose State University, where no one worked in advance to ensure a successful and safe event.  He was compelled to leave the stage mid-speech.  “I wish you’d been at San Jose to help,” he later told me.  I might also note that, despite my efforts, the donor would soon withdraw his funding from the program.

These two incidents from my own career may illustrate some of the complexities associated with the current debate over outside speakers and the “heckler’s veto.”  In the first case, it was not left-wing students who sought to silence a right-wing speaker.  It was just the opposite.  And in the second example it is clear that not all protesting students are disrespectful.   Both incidents demonstrate that dialogue is indeed possible, that speakers and protesters can both be accommodated, although sometimes it’s pretty darn difficult.

This is the first of a three four-part series.