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Saturday, October 07, 2017

University of Wisconsin bans counter-speech

An intentionally provocative headline, but not too far off. The Board of Regents adopted a policy that "students found to have twice engaged in violence or other disorderly conduct that disrupts others' free speech would be suspended. Students found to have disrupted others' free expression three times would be expelled." (H/T: Steven Lubet). The  linked article contains quotations capturing both sides of this: The regent who says the policy promotes listening and that "drowning out another speaker" does not qualify as freedom of speech, compared with the student who argues that the First Amendment is supposed to be messy and contentious.

The policy is glaringly vague (what is "disorderly conduct," what is "disruption"), etc.).  I expect the university to try to clear that up in its implementing regulations. Meanwhile, I wonder if a constitutional challenge now would be deemed unripe, since the policy is not yet at the point of implementation. In any event, I do not see how the university could write regulations that are clear enough to pass constitutional muster. If the counter-demonstrating, where the counter-demonstrators outnumber and outshout the original speakers, does that necessarily become disruption? Even if listening is a worthy goal to promote, can the state give people a choice between listening (which sounds compelled) or staying away, with talking back no longer an option?

Posted by Howard Wasserman on October 7, 2017 at 02:59 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink


So from a reasonable distance, a group of 10 counter-speakers all together shouting "AAAAHHH" every time the other speaker starts to speak and effectively making it so that the audience cannot hear him over the shouting?

I'm inclined to think that's the kind of thing that we not only can disallow but ought to.

Posted by: Derek Tokaz | Oct 12, 2017 10:45:27 AM

Subject to some government power to keep speakers and counter-speakers at some reasonable distance from one another (although a distance far smaller than the canyon that Boston police imposed over the summer), yep.

Posted by: Howard Wasserman | Oct 12, 2017 10:16:22 AM

If we cannot tell intent or ought not distinguish based on intent even if we could tell, then is there any sort of counter speech you'd want to disallow?

A counter-speaker standing fairly close to the speaker (outside in the open), and every time the speaker starts to talk the counter speaker just yells "AAAAHHH" at the top of his lungs, so loud that the audience is effectively prevented from hearing the speaker?

Posted by: Derek Tokaz | Oct 12, 2017 10:05:54 AM

No, intent plays no role in my hypo. I don't care about intent, I don't think you can tell intent, and I don't think there is a difference between the two intents. I did not say anything about how near or far they are. It may change depending on the forum (auditorium, for example). But outside the auditorium or if everyone is out in the open, intent does not matter.

Posted by: Howard Wasserman | Oct 11, 2017 10:30:15 AM

Note that you specified they showed up around the perimeter of his speech -- maybe trying to subtly sneak intent into the equation. That looks like your Jewish counter-protesters are trying to be heard, rather than stop Spencer from being heard. The grogger looks like just plain old symbolic speech in that instance.

Move them in closer and have them only use the grogger at moments when Spencer is speaking and I think the analysis changes. And I don't think the difference is just that Spencer is more effectively drowned out, but that it's clear our counter protesters intend only to drown him out and aren't so concerned with their own message.

Posted by: Derek Tokaz | Oct 11, 2017 7:56:26 AM

A group of Jewish students decides that Richard Spencer is the new Haman and shows up around the perimeter of his speech shaking groggers (the noise makers that get shaken during the reading of the Megillah on Purim). I feel pretty confident that would be understand as expressive and protected as counter-speech, even if it is merely an "eccentric siren" and not Das Kapital. The First Amendment does not limit protection to well-thought-out and -articulated ideas.

Now an electric bullhorn might be different. But it seems to me that is matter of technology and sound amplification, not the distinction between verbal articulation and other sound.

Posted by: Howard Wasserman | Oct 11, 2017 4:29:02 AM

If I show up to counter-protest and bring a bullhorn and just lay on the siren button for the entire thing and drown out the other speaker ...I assume this would not be protected speech.

If that's not protected speech, then I'd assume turning on the bullhorn and just screaming into it isn't really significantly different. I don't see why we should care if I'm making the siren sound with a button or with my mouth.

And if the screaming isn't protected, then we have to ask if broadcasting my manifesto over the bullhorn is protected. We've got content which in most contexts would clearly be protected speech, but we have to ask if what I'm doing is speaking or just playing a siren still. If the siren isn't protected, why does it matter if my siren is a constant A440 or a screeching reading of Das Kapital?

That's why I brought up intent. It'd be how we distinguish between someone actually expressing the ideas of Das Kapital and someone playing a very eccentric siren.

Now ordinarily we don't want the government to be making these sorts of judgement calls. We don't like the possibility that the government will get it wrong, or be overzealous, or abuse the system to shut down dissent. But, that's because what's at stake is people's rights. The heckler's veto is different because in that situation someone is already being denied their rights. There's no longer a side of caution to err on.

I'd compare this to how we handle travel on sidewalks. We accept that you may occupy some space on a public sidewalk, but at the same time we say that you can't use it in such a way as to prevent other people from using it. Protesters may not impede pedestrian traffic. And yet, pedestrians may impede other pedestrians. We allow this when it's incidental to your own use of the sidewalk for travel, but not if you're on the sidewalk specifically to block people (even if you're walking while doing so).

We get how this works when dealing with bodies in a physical space. ...I'm not sure what's so different when talking about voices in the air.

Posted by: Derek Tokaz | Oct 10, 2017 12:04:36 PM

I would take issue with that for a number of reasons. We generally do not look at speaker intent. We generally do not require a speaker to present a specific and articulable message or "alternative" idea as a condition of speaking. A speaker may have a mixed goal--not only to get her idea (whatever it is) across, but to get her idea across in a way that makes her message louder and better heard than the other guy's.

Posted by: Howard Wasserman | Oct 9, 2017 11:23:54 PM


Would there be in issue with looking to the intent of the counter-speech? When looking at whether the counter-speech is acceptable, why not look at if it is aimed at presenting alternative ideas, or if it designed to prevent some ideas from being heard at all? There may be some implementation/enforcement issues, but I suspect that in the vast majority of cases it'd be rather cut and dry.

Posted by: Derek Tokaz | Oct 9, 2017 8:04:37 AM

"Does this also apply to professors, or just students? Cause that would appear to violate the equal-protection-clause requirement that customers/students and employees/professors be treated the same under the law."

Are you familiar with the concept of suspect and quasi-suspect classes and how they relate to degrees of scrutiny?

> Stop Screwing Students
Is it just me or are posts by these sorts of narrative usernames disproportionately poor?

Posted by: brad | Oct 8, 2017 1:05:46 PM

"Students found to have disrupted others' free expression three times would be expelled."

Does this also apply to professors, or just students? Cause that would appear to violate the equal-protection-clause requirement that customers/students and employees/professors be treated the same under the law.

Exempting professors from school rules would be just as morally bankrupt as exempting police from handgun-prohibitions in Chicago. All rules apply to everyone all the time and apply to everyone equally.

Posted by: Stop Screwing Students | Oct 8, 2017 9:36:19 AM

James , The point is , that in common language or ordinary meaning , threats for example , are kind of violence as I have illustrated there . Surly they don't mean to prohibit interrupting free speech , by another legitimate free speech , and surly ,they don't mean either to legitimize violence for the sake of free speech . So , this is the scope we are left here with . Those disorderly conduct which consist on violence ( like threats ) and interrupt free speech . It is pure and simple , but , poorly phrased by them I am sure ..... Thanks

Posted by: El roam | Oct 8, 2017 4:28:57 AM

El roam, I take “violence or other disorderly conduct” to mean that the “other disorderly conduct” need not be violent. “violence” and “other” are two categories of “disorderly conduct.” Together they exhaust the universe of “disorderly conduct,” so the policy says that disuptive disorderly condut is banned, regardless of whether it is violent or not. Violence can be regulated as conduct, but “disupt[ion]” to speech is not, to my knowledge, a regulable category under the First Amendment, not without more.

Posted by: James Grimmelmann | Oct 7, 2017 11:43:23 PM

Thanks for that post , it seems that you have ignored the word " violence " which may constitute a game changer in the right reading of those proposed rules . The complete wording goes so :

" ….violence or other disorderly conduct that disrupts others' free speech …."

So it seems , that , those vague conducts , not specifically mentioned , are also violent ones ( due to the wording " or other " effectively of that kind of violent alike ) or at least , constitute independent offence per se , so , free speech paradoxically , is disrupted indeed , but , would be rendered " collateral damage " compared to other violent acts , like : threats , or corrupting or tearing notes of protesters for example and so forth….. it may be like imagining that , a person , protesting , shot by someone , due to debt not paid . The shooter , has interrupted his free speech ?? yes and not !! Yes effectively , but not , due to another intent clearly manifested , or , for being simply , independent offence , as a whole , folding inside of it , other redundant offences .


Posted by: El roam | Oct 7, 2017 7:18:19 PM

Seems like this is a cinch to implement constitutionally in areas that are not traditional public fora, and can be implemented with TPM regulations in public fora.

Maybe we will find out what the ACLU thinks of this. If they are allowed to tell us.

Posted by: ShelbyC | Oct 7, 2017 6:25:46 PM

I have not thought through all the different rules. I think you are right about an enclosed room. I'm less sure about other types of spaces.

Posted by: Howard Wasserman | Oct 7, 2017 5:03:38 PM

If the implementing regulations limit themselves to cases where the "original speakers" have reserved a room, then a policy that they (and not the protestors) have priority there should easily pass constitutional muster. The protesters are only "compelled" to listen if they want to listen in that space. A university might not be able to impose this kind of policy on a campus as a whole, but it certainly can institute a content-neutral policy that lets interested speakers with an appropriate campus status (student groups, faculty,etc.) obtain priority for specific spaces at specific times.

Posted by: James Grimmelmann | Oct 7, 2017 4:58:29 PM

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