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Monday, April 24, 2017

Counter-speech or heckler's veto?

There are some troubling aspects to this edition of FIRE's So to Speak podcast on the Manhattan Institute's Heather MacDonald being a victim of a heckler's veto. MacDonald was shouted down at Claremont-McKenna College, where she had been invited to give a talk on her new book on policing. In the interview, she describes speaking to an empty room, because student protesters outside had blockaded the entrance, and the talk ending early because the university refused to let police disperse the protesters. MacDonald wrote about her experiences.

My free-speech positions generally align with FIRE's, so I was surprised by the problems I found with the discussion:

1) It does not appear they have grappled with the protected nature of some of the protesters' activities (MacDonald allowed at one point that they were "arguably" within First Amendment protection). All heckling seems to constitute a heckler's veto in their telling. Except heckling a speaker is constitutionally protected, including to the point of trying to shout down or drown out that speaker, with the hope that she will give up and go away. (I like to point to the scene in Casablanca with the competing songs). So is asking snarky questions during the Q&A. So is pounding on drums and chanting. There is a line to be drawn somewhere and I admit to not knowing precisely where that is. Blockading the entrance or pounding on the glass is over the line. So is invading the speaker's space or trying to grab the microphone. But shouting from across the way must be protected. And there is an ocean between those.

The  undercurrent to the interview is that the First Amendment (as opposed to civility or a Platonic ideal of polite exchange of ideas) requires those who oppose ideas to allow those ideas a polite hearing. But this privileges the position of the invited speaker (MacDonald) to say what she wants and she wants to, imposing  on others to give her a polite listen and only engage in counter-speech (supposedly the remedy to be applied) on her terms. Rather, counter-speech, no less than "original" speech, may be vehement, caustic, and unpleasantly sharp. Counter-speech, no less than "original" speech, can produce the verbal tumult, discord, and dverbal cacophony that is not a sign of weakness but of strength.

Again, do not hear me as saying that the protesters were entirely in the right. Only that there is a First Amendment element that went almost entirely unacknowledged throughout the interview and MacDonald' narrative.

2) At one point the podcast host describes the right to free speech as a two-sided coin--the right of the speaker to speak and the right of willing listeners to listen, both of which were undermined by the protesters. But this, again, ignores the third side (making this a triangular dreidel?) of the rights of the protesters to counter-speak.

3) A different theme in MacDonald's comments, especially in the interview, is that she is in the right because the protesters attempting to shout her down are "arrogant" and "ignorant" (and arrogant in their ignorance). They are wrong about Black Lives Matter and the problem of police-involved shootings. And if they only knew what she did--such as the story of one elderly person in Chicago who would like to see a greater police presence--they would shut up and listen to her. And their failure to shut up and listen to her and her correct ideas (as opposed to their ignorant ones) represents their abandonment of respect for the First Amendment.

4) MacDonald called out the CMC faculty for not getting involved. Her solution is that when a controversial speaker is coming to campus, faculty members should take class time, regardless of subject, to give a talk to students explaining that they are expected to "maintain the highest ideals of civilization, which is rational discourse." That lecture should take place in a chemistry class or a philosophy class or a literature class.

But isn't the great conservative criticism of academia and academic that professors ignore what they are supposed to be teaching in the classroom (the atomic weight of Bromide or whatever) to instead "brainwash" (a word MacDonald used several times in the interview) students about that prof's favored political ideals. That seems to be what MacDonald is urging here. Except instead of brainwashing them about Marxism, she wants them to brainwash them about her vision of free expression. So I guess it is ok, as long as the professor is brainwashing the student about MacDonald's preferred political ideal.

5) Somewhat related, I would flag this piece in the Chronicle of Higher Ed (subscription required) by my colleague Stanley Fish, who attempts to separate the values of the university from free speech values. He argues that the guest speakers and protests and everything else have nothing to do with academic or university values. They represent political speech to which the university has chosen to open its doors and spaces. Which is fine, but has nothing to do with academic freedom or the core purposes of a university.

6) And this post from Max Stearns' Blindspot, which develops a "vaccine" theory of public debate, in which there is value to exposure to small amounts of noxious ideas. Again, as a model of public debate, this is interesting. But it leaves many open questions about how to account for counter-speech within a model of First Amendment jurisprudence.

Posted by Howard Wasserman on April 24, 2017 at 09:31 AM in Constitutional thoughts, First Amendment, Law and Politics | Permalink


Re Prof. Wasserman's comment above:
Ordinarily the speaker has a microphone---maybe--- and classroom speakers. Protesters can bring speakers as big as they can afford. They can also bring noisemakers much louder than a human voice. At the Charles Murray protest last week at Indiana, for example, I saw they had loudspeakers and a sort of metal drum. They could have done much better, but we in Indiana don't have the kind of Trotskyite presence of Berkeley, and the university managed teh visit cleverly.

Posted by: Eric Rasmusen | Apr 29, 2017 6:49:27 PM

biff: Yes. A faculty member teaching a course is, viz the students, government speech in a non-forum, to which no forum analysis applies. (on this point, I would recommend the piece by Stanley Fish linked in the original post, arguing that this is the only thing that is academic on campus).

Shelby: My original point was not that Berkeley, or MacDonald or the protesters were right or wrong--I did not (and still do not) know enough about the geography or the space. My point was only that the FIRE podcast did not, in my opinion, seem to recognize that protesters are speakers with their own rights and interests.

Posted by: Howard Wasserman | Apr 28, 2017 4:38:46 PM

"It should be obvious that I was talking about what happens in and around public fora and not a classroom."

Then it's not obvious how your discussion relates to speakers like Heather MacDonald. It's certainly not obvious that the Cook Athenaeum is a public forum. Nor is it obvious that speakers in adjoining public fora have a constitutional right to violate content-neutral rules that would prevent disrupting events in the Athenaeum.

Posted by: ShelbyC | Apr 28, 2017 12:30:26 PM

I am not clear on what the difference is between a college making a room available for you to lecture from 9-10:30 a.m. two days a week, where there is no right for students to shout you down. And on the other hand, a college making available the same room for Ms. MacDonald one evening to speak about police/community relations where there is a right for attendees to shout her down.
Is the difference whether the speaker is a member of the faculty of the college? Whether the speech is part of an official course offered by the college?

Posted by: biff | Apr 28, 2017 10:43:00 AM

It should be obvious that I was talking about what happens in and around public fora and not a classroom.

Posted by: Howard Wasserman | Apr 28, 2017 7:56:10 AM

"Except heckling a speaker is constitutionally protected, including to the point of trying to shout down or drown out that speaker, with the hope that she will give up and go away."

IANAL, but isn't the nature of the forum what matters here? In a traditional public forum, what you say would undoubtedly be true, but in a non-public forum the school can create content-neutral rules about who is allowed to speak at what particular venue, how much "heckling" or shouting down is allowed, etc. Surely creationist students don't have the right to shout down the biology teacher.

Posted by: ShelbyC | Apr 27, 2017 2:00:20 PM

"Admit you're wrong on this." No

"The ordinary case is that the speaker is limited to a volume much less than that of the protesters, not vice versa." And your source for this is? Just checking.

Posted by: Howard Wasserman | Apr 26, 2017 7:02:13 PM

"Except heckling a speaker is constitutionally protected, including to the point of trying to shout down or drown out that speaker, with the hope that she will give up and go away."

Admit you're wrong on this. The ordinary case is that the speaker is limited to a volume much less than that of the protesters, not vice versa. Even if it weren't, under your regime the speaker would always lose, since at a certain point listeners are literally deafened, and higher volume doesn't matter.

Posted by: Eric Rasmusen | Apr 26, 2017 5:47:34 PM

Why is this not a content-neutral regulation like that at issue in the Ward v. Rock Against Racism, the Central Park bandshell case? Here, there are competing uses.

Posted by: TS | Apr 25, 2017 8:12:10 AM

Prohibiting a third person from maliciously interfering with someone else's attempt to speak to a second party is not content-neutral? Where'd you get that from?

Posted by: biff | Apr 24, 2017 8:39:19 PM

It seems we have an almost Kantian moral dilemma here. Does a person's freedom (in this case the freedom of speech) extend so far that it is able to infringe on another person's freedom?

Let's start with one of your points that there are two sides to the freedom of speech. The first is the freedom to speak; the second is the freedom to listen. Now, let us imagine that Group X would like to listen to Speaker A. They invite Speaker A, they get any necessary permits, they acquire a space, and they publicize the speech. I believe everyone would agree that this group is fully within its right. It is exercising the freedom to listen. Speaker A accepts the invitation and a date is set.

Now let us imagine that Group Y disagrees with Speaker A's positions. Does their freedom of speech extend so far that they can effectively veto Speaker A's freedom of speech, Group X's freedom to listen, as well as any other interested party's freedom to listen? Kant would argue that the group's freedom does not extend so far. Rather, he would argue that freedom only extends as far as another person's freedom. Once a person infringes on another's freedom, it ceases to be 'freedom'.

I am inclined to think something like this is the correct way to view the problem.

I'd also like to deal with one other issue I noticed. It seems that part of what you said could be construed to mean that no featured speaker actually has a right to be heard, because that speaker (by nature of being featured speaker) will be louder than any protestors, thus inherently violating the protestors' right to counter-speech. I am unconvinced.

The protestors have recourse to any number of equally valid, equally "loud" or visible channels. They can host a competing event, write to the newspaper. In addition, they can invite a speaker who shares their idea (call that person Speaker B), rent the same auditorium, and use the exact same sound settings, and present Speaker B's ideas at the exact same volume as Speaker A's. Both metaphorically and literally, then, the protestors' ability to counter-speak remains as unviolated as Mother Teresa.

A few preliminary thoughts.

Posted by: YesterdayIKilledAMammoth | Apr 24, 2017 3:25:19 PM

It would be. But if the original speaker were unlimited in volume but counter-speakers were, then it would not be content-neutral.

Posted by: Howard Wasserman | Apr 24, 2017 12:10:29 PM

"including to the point of trying to shout down or drown out that speaker"

Really? Surely a content-neutral noise control rule could pass First Amendment muster?

Posted by: Jr | Apr 24, 2017 11:12:20 AM

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