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Wednesday, November 01, 2017

Chemerinsky and Gillman on disruption as free speech

Erwin Chemerinsky and Howard Gillman (Chancellor at UC-Irvine) have a piece in the Chronicle of Higher Education discussing when and if disruption of one speaker constitutes free speech by the counter-speaker. The piece captures a lot of what I have been thinking and trying to get at in my posts on the subject. I like the argument and it works as a jumping-off point.

They argue that in an open forum, including on campus, no speaker has a superseding right of access and no speaker has a right to speak uninterrupted. A limited public forum with rules and reservation processes creates a preferred right of access to the original speaker and thus limits the counter-speech rights, such as to non-disruptive protests or to counter-speech activities outside the forum. This distinction works, although defining the nature of the forum remains important and perhaps difficult. We also have to find a way to address the situation in which loud counter-protesters in the general forum (where, H&C argue, they can be as loud as they want to be) drown-out the speaker inside the limited forum.

I disagree that we should label what counter-speakers are doing here as a heckler's veto, which I believe requires government action. I agree that the attitude reflected is "'If we can’t get the government to censor the speech, then we’ll do it ourselves'", but we need a different term. The better description might be civil disobedience--these protesters are breaking the rules, although for expressive purposes, and are subject to arrest for doing so. Government's obligation, H&C argue, is to allow the speaker to go forward by removing the disrupters. And when government fails to do so, that is a heckler's veto.

Posted by Howard Wasserman on November 1, 2017 at 05:17 PM in First Amendment, Howard Wasserman | Permalink

Comments

It's a good article, but I think they are wrong that it is a pure judgement call as to how to deal with disruptive protests. Leaving it as a matter of discretion opens the door to the implication that the enforcement choices act as de facto content or viewpoint based discrimination against speech that is allowed to be disrupted with impunity vs other speech that is protected by vigorous enforcement against disrupters.

There instead should be content and viewpoint neutral criteria for when and how to pursue disciplinary actions against disrupters.

Posted by: Brad | Nov 1, 2017 5:46:57 PM

The Gillman and Chemerinsky piece strikes me as entirely correct and thoroughly conventional. The more interesting issue to me is not the legality of protecting speakers and punishing hecklers, but why the behavior of disruption has emerged at all, so suddenly and so intensely. In the world I grew up in, ignoring people with stupid ideas was considered a respectable and even necessary kind of response, and one that produced good results in the long run. Now, it seems, nobody can ignore anything. The presence of even one jackass anywhere must be responded to not by ignoring, nor merely through responsible and reasoned counterspeech, but with massive force sufficient to suppress the speech. I'm reminded of that now classic cartoon: "Come to bed, it's late. I can't; someone on the internet is wrong." I wonder if this behavior is related to what I think of as the "curatorial" impulses of millennials: just as their Facebook and Instagram accounts must be constantly curated to rid them of unwanted material, so must the actual world be curated to rid it of things whose mere existence they find unattractive.

Posted by: Grumpy | Nov 2, 2017 12:36:30 PM

Perhaps. It also might owe to the nature of the objection to some of the speech and speakers at issue. Some protesters regard the ideas of Murray, Coulter, et al., to be not merely incorrect as ideas, but to be the equivalent of an assault on and injury to them as people and as members of a community. And such injuries cannot be ignored, nor can the effort to displace them as members of the community.

This is an interesting underlying idea that might be worth exploring.

Posted by: Howard Wasserman | Nov 2, 2017 12:42:02 PM

It might be worth exploring as an intellectual exercise, but it is fundamentally at odds with post-war American liberalism, notions of academic freedom going back further than that, and the current consensus understanding of the First Amendment.

Were they being assaulted and injured they would have every right to redress and protection. But they aren't. They are merely being offended and that's the price of a free society.

I see little room to compromise here. Either the forces of liberalism will hold on to universities, courts, and institutions like the ACLU or the illiberal will. Perhaps we older folk need to start thinking about Generation Z and how we can prevent them following in the footsteps of the millennials on these questions.

Posted by: Brad | Nov 2, 2017 6:21:41 PM

Brad, I don't think it's such a clear distinction between physical harm and mere psychic offense. For some people, hateful speech may represent a real threat that causes actual suffering. Someone calls me a jerk and I'm mildly offended. Armed, torch-wielding neo-nazis march through my town calling for my extermination, and I might well see that as an existential threat. I don't think it's necessarily illiberal to try to suppress that speech (see the letter written by some ACLU lawyers after the Charlottesville incident in which they cite the tension between unfettered expression and progress toward equality). The method used matters, of course. Antifa takes it to the extreme when they justify the use of violence to suppress speech from people they deem fascists. Nearly everyone can agree that's a bad way to go about it. But using speech to suppress speech in an open forum strikes me as thoroughly acceptable and compatible with liberalism.

Posted by: Patrick | Nov 3, 2017 10:59:28 AM

@Patrick
"Brad, I don't think it's such a clear distinction between physical harm and mere psychic offense. "

The American political and legal philosophy of free speech, which is perhaps our proudest contribution the world, says there is such a distinction.

"For some people, hateful speech may represent a real threat that causes actual suffering."

For some people the very existence of other people out there somewhere in the world having abortions causes actual suffering. There are harms that ought not be taken into account. At least unless, as I said, we are going to abandon liberalism.

"I don't think it's necessarily illiberal to try to suppress that speech (see the letter written by some ACLU lawyers after the Charlottesville incident in which they cite the tension between unfettered expression and progress toward equality)"

That letter should have been a resignation letter. Those people have no business at the ACLU given that they don't believe in its 100 plus year mission. Romero also ought to resign. Hopefully the board of directors still contains enough wise elders to save the organization or we will be the generation that tragically let the ACLU die in all but name.

It has always been the opponents of the ACLU that have argued about the need to balance other interests with free speech. What about the danger of communist revolution? What about the danger of race riots? What about the dangers of exposing our children to lewdness? What about the dangers of giving our enemies access to classified information? What about the dangers to the principle of a fair trial if reporters are allowed to report on crimes?

These are the arguments that the ACLU has been arguing against for decades. There is a place for the arguments that the letter signers made but it is on the opposite lectern from where the ACLU lawyer is arguing. They follow in the proud(?) tradition of those lawyers that won Schenck v. US and Debs v. US.

"But using speech to suppress speech in an open forum strikes me as thoroughly acceptable and compatible with liberalism."
Out on the quad they can say whatever they like. In the auditorium they ought to behave themselves. If they do not they ought to be disciplined the same way they would be if they had burst into a chemistry class and started shouting down the professor.

Posted by: Brad | Nov 3, 2017 5:17:25 PM

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