Abandoning counter-speech

Update (Friday): According to this story, UM reversed course and planned to show the movie at the originally scheduled time and place on Friday evening; a university official said the decision to cancel was "not consistent with the high value the University of Michigan places on freedom of expression and our respect for the right of students to make their own choices in such matters." The story also reveals that new UM football coach Jim Harbaugh is proud to be an American and does not care if that offends anyone. Glad to hear that, Coach; I was concerned.

Original Post (Thursday):

Ron Collins at CoOp (who has become my go-to person for new First Amendment news) reports on a controversy at the University of Michigan. A university organization, in response to a petition, cancelled a planned screening of Clint Eastwood's American Sniper; in  response to a counter-petition started by a 3L law student, the university moved the screening to an alternate location. According to the Daily Caller, the university will show Paddington Bear instead. Collins quote Floyd Abrams as saying "Surely, this is the best evidence yet that a speech-destroying storm is sweeping across American campuses. The students who seek to ban speech have much to learn but a university that yields to their demands can hardly be trusted to teach them.”

The First Amendment's preferred response, Justice Brandeis would tell is, is counter-speech. And the objecting students could have engaged in all manner of it here--protest outside or around the building, take to various fora real and virtual fora to urge people not to attend, show a different, contrary movie at the same time and in a similar location. But that never seems to enter the picture; the objector's move is to jump directly to silencing the message to which they object.

Why?

One possibility is that the harm caused by the speech being heard is simply too great--the harm comes with the film and cannot be alleviated by alternative messages. This view is bound-up with unique concerns about identity, disadvantaged groups, and social power imbalances. This is not your grandfather's censorship of socialism and dirty movies--the sorts of speech that progressives sought to protect once upon a time. This is about racism and hate crimes and its utterance cannot be tolerated.* This is the default (and likely?) explanation that so worries Abrams and others (including me) about the state of the First Amendment, especially on campus.

* Drawing on a point from some comments to this post: The First Amendment does not distinguish between a racist epithet or rant and a serious, if ugly and even racist, political message--both are protected. But that may be necessary because opponents of speech do not distinguish when they call for silencing--American Sniper is not qualitatively different than a long racist rant that promotes racist rhetoric "contributes" to hate crimes. In other words, American Sniper is the same as the SAE chant is the same as the stupid woman at South Carolina.

A second possibility is that counter-speech is hard. It requires people to get out there, organize, protest, etc. Obviously these students worked hard to create the groundswell necessary for the university to cave, sending out messages and garnering support. But organizing new events and protests requires another level of commitment. Plus, your side may lose with counter-speech--you may not convince anyone to come over to your position and more people may choose to see the movie anyway. The only sure way to win is not to let the other side be heard.

Finally, a third possibility shifts the blame back to the university. Acting on concerns for safety, convenience, and "order," universities (and governments generally) make counter-speech incredibly difficult. Universities demand permits, push many protests into "free speech zones," impose restrictions on the numbers of protesters and where they can be and when, and generally create all manner of time, place, and manner limitations designed to ensure that public protest not last and that it not inconvenience or annoy anyone else. The result is to deter counter-speech--it simply becomes too difficult to do it and not worth the candle. (Note that I am speaking generally here--I do not know anything about the specifics of UM's protest-and-demonstration policies). So I will reapply Abrams' criticism of universities: By limiting the type of counter-speech in which protesting students might engage, the university itself leaves protesting students with no option but to call for silencing.