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Wednesday, February 07, 2018

Florida bans counter-speech, too

Parallel bills in the Florida House and Senate would do two things: Prohibit schools from establishing free-speech zones (while permitting content-neutral time, place, and manner restrictions) and prohibit students from "materially disrupt[ing] previously scheduled or reserved activities on campus occurring at the same time." Both rights are enforceable with a private action for damages and attorney's fees against the university. The ACLU opposed the second piece of the bill, arguing that it gives universities a financial incentive to halt counter-speech "out of concern that someone might boo too loudly." This bill sounds in similar efforts by the University of Wisconsin Board of Regents.

Give what I have been writing about hecklers and counter-speech, I believe the second piece is a terrible idea. It has a vagueness problem, since the bill does not define materially disrupt. It limits the disruption to "previously scheduled or reserved activities," trying to create some speaker priority within certain spaces. But it still faces the problem that counter-speakers have some First Amendment right to heckle and counter-speak and boo, including being louder and more audible than the "original" speaker. This bill defines one speaker as a speaker and the other as a material disruptor--and gives the state a financial incentive to limit the disruptor. But it does not explain when counter-speech ends and disruption begins or how the balance applies in different forums (e.g., counter-speakers in a reserved auditorium and seeking to rush the stage as opposed to counter-speakers in an outside public space).

The sponsor of the Senate bill argued that the universities should be able to impose rules for civil discourse just as legislatures do. Civil discourse might be a worthy goal. But the First Amendment does not allow government to impose that as a necessary obligation. Public debate should be more "uninhibited, robust, and wide-open" than what occurs in a legislature or other governing body. There is a power balance within a legislature--every member of the body stands on roughly equal footing and all can work the levers of institutional power within the body to achieve some ends. People in the public arena ork against a power imbalance, speaking against those who wield real power (government officials, police, private individuals who wield greater power and influence), where speaking is the only action available to them. The powerless need greater leeway, even to the point of "vehement, caustic, and sometimes unpleasantly sharp attacks."

In the public forum, in other words, speakers must be able to persist, even after being warned and given an explanation.

Posted by Howard Wasserman on February 7, 2018 at 11:56 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


Also seems weird to me to punish the university for the actions of the students. If you truly believed you could legally suppress counter-speech and that doing so was beneficial, you should penalize the people engaging in the counter-speech. A "let's open university students up to lots of lawsuits" bill probably wouldn't be politically defensible, of course, but neither should this one.

Posted by: J | Feb 8, 2018 1:14:11 AM

Do you also think that unlicensed broadcasts on frequences already assigned by the FCC are First Amendment protected counter-speech, and that we need to tolerate unlicensed broadcasts that are sometimes "louder and more audible" than the licensed ones?

I continue to think that your analysis of heckling misses the crucial dynamic, which is that listeners in the audience are not indifferent between the speakers they came there to see and the hecklers they didn't, and that their interests deserve substantial, even controlling weight in distinguishing between what you would describe as symmetrically situated speakers. This particular bill may be vague or perversely drafted, but the general idea of giving priority to the people with the reservation is coherent, content-neutral, and more consistent with First Amendment values.

It seems to me that people speaking out against "those who wield real power" might be better served by a rule that gives them even-handed access to a forum and then protects them against both state and private attempts to deny them the practical ability to use it, than by a rule that means only uncontroversial speakers will be allowed to finish what they have to say without constant disruption.

Posted by: James Grimmelmann | Feb 8, 2018 4:24:52 AM

Thanks for that post , it should only be noticed , that such restricting zones for exercising there free speech , is per se , limiting the free speech itself of course . Courts in the US , have constantly ruled , that free speech , has both dimensions : Content , and effectiveness . This rather limits the effectiveness of the free speech , that is to say , the infrastructure and all around conditions , that finally , permits the content to be expressed in effective manner ( like gathering data for example ) . Surly , limiting zones or space , is considered as limiting the effectiveness , though not hurting the content itself it seems .

Posted by: El roam | Feb 8, 2018 8:53:19 AM

I continue to believe that when one makes a legal claim, such as "counter-speakers have some First Amendment right to heckle and counter-speak and boo, including being louder and more audible than the 'original' speaker," which is not supported by controlling precedent, it would be proper to note that the claim is the writer's opinion on what the law is, and not a restatement of settled precedent.

Posted by: Biff | Feb 8, 2018 12:22:07 PM

To join the chorus I don’t think it is at all reasonable to continue to insist that anyone is looking to protect events which happen out on quad or other open access outdoor forums. They can’t be reserved and no one schedules events in them exactly because they are so chaotic.

These laws, rules and complaints are entirely about events, speakers, or even classes in reserved, controlled, enclosed spaces being disrupted. Sometimes violently. There is no First Amendment right to such disruption. And it’s a good and entirely appropriate thing that there is no First Amendment protection for such disruption.

Missing the point over and over again begins to look willful.

Posted by: Brad | Feb 8, 2018 1:57:12 PM

I resist the factual premise. I agree there is no right to rush the stage in a reserved auditorium or disrupt class. But these regulations could be (and have been) used to regulate open-access spaces that operate on a first-come/first-serve basis. Or they could be used to regulate spaces outside-but-adjacent to the reserved indoor spaces--and that is a less obvious answer.

Posted by: Howard Wasserman | Feb 8, 2018 2:02:23 PM

I guess I don't get how this high talk about the rights of the powerless (oh, the powerless students and the academics who inspire them who think The Bell Curve is a racist tract, how little we'd hear from them and how little power they'd have if they couldn't heckle Charles Murray the two hours of the year he visits their school!) to engage in "unpleasantly sharp attack" connects to a rule that says the powerless can't heckle in a reserved auditorium but can heckle when conservative academics or former New York police commissioners show up to talk in open-access spaces. If these people are really suffering from a power imbalance, maybe they should have heckling rights in reserved auditoriums. Of course, though, the legions of people who take issue with Charles Murray or Milo Yiannopoulos (and very aptly so, in at least his case) or the officials who presided over stop-and-frisk are not remotely powerless, and we hear from them in every corner of the Internet, campus, print, and public square, so to me this all sounds like hoary sloganeering that bears no relation to reality.

Posted by: Asher Steinberg | Feb 8, 2018 6:58:40 PM

Does your view extend to classes in classrooms? OK for "counter-speakers" to shout down your class? If not, why is a scheduled speaker different? I understand the open-air quad concern, but I don't see the class/speaker difference.

As to holding the school liable -- I see the concern, but isn't already standard fare for Title IX? The school didn't do enough to stop student A from harming student B? I can see calibrating the standard for imposing liability, e.g., "reasonable" efforts but not strict liability, but the concept is nothing new.

Posted by: Voltaire | Feb 13, 2018 9:23:48 AM

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