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Saturday, April 14, 2018

If everyone is a Nazi . . .

Josh Blackman wrote at length about being the target of protests at CUNY Law when he went to do a Fed Soc lecture on free speech on campus. Josh's post includes photos of the gauntlet of signs he walked in the hallway, as well as events inside the room. After several minutes of organized interruptions (including one law student exclaiming "fuck the law") and a warning from school administrators, Josh was able to engage with some audience members and the protesters left the room, after which Blackman did Q&A with the remaining students for more than an hour.

The underlying premise of many protests and attempts at "no-platforming" begin from the premise that the appropriate First Amendment rule, whatever the First Amendment's scope otherwise, should be "no free speech for Nazis and white supremacists." Putting aside the other problems with such a rule, its core problem is that it seems inevitable that everyone becomes (or at least everyone who disagrees with you) becomes a Nazi and white supremacist who must be shut down. Many of the protest signs reflect this misunderstanding.

Erica Goldberg tries to identify the line between the right to speech and the right to protest speech, drawing the line at "coordinated efforts to silence a speaker." Erica distinguishes "an errant 'hey, you're wrong'" from "an effective, premeditated campaign" to shout down a speaker invited to use a designated forum. She also suggests drawing a line around "[s]ubstantive, informed, respectful discussions" and "civil, open-minded, orderly discourse."

I have been trying to identify the same lines, focusing on location (protesters inside the forum v. protesters outside the forum). Erica suggests that some forms of protest, including some verbal protest, are permissible within the forum, which is broader than I had thought of going. But I question whether coordination or terms such as substantive, civil, and open-minded can do much work. The First Amendment does not trust the government to define these terms (and where they begin or end) anymore than it trusts the government to pay a principled line between unprotected outrageous caricatures and protected sharp political commentary. Or between a protected conservative and an unprotected white supremacist.

Posted by Howard Wasserman on April 14, 2018 at 04:18 PM in First Amendment, Howard Wasserman, Law and Politics, Teaching Law | Permalink



We assume the Travel Ban is white supremacist because we assume that Muslim immigrants support Separation of Church and State, the Exclusionary Rule, abortion rights, and gay marriage just as much as whites do--so there's no need to exclude them.

But are there any actual studies showing that first-generation Muslim immigrants are just as likely to support these constitutional doctrines as whites are?

Posted by: Pew | Apr 16, 2018 2:09:34 PM

Asher Steinberg writes, "I happen to also believe that every iteration of the travel ban has been legal." In that case, I can understand why some people call you a racist white supremacist.

See how that works?

Posted by: David Bernstein | Apr 16, 2018 2:09:31 PM

This is a whole lot like the move to expand the definition of "violence." We can't ban offensive language, but we can ban violence. So, we start labeling your language as violence because it does some psychological harm, or it might foment hate which later leads to violence, or it propagates a system which is violent in some way.

Posted by: Derek Tokaz | Apr 16, 2018 10:07:02 AM

"During the McCarthy Era, everyone to the left of J. Edgar Hoover was labeled a Communist."

They weren't, but if it pleases you to strike that pose, go ahead.

Posted by: Art Deco | Apr 15, 2018 11:48:29 PM

I am not sure I am being cynical or that what we are saying is all that much different. History suggests this is not a new issue or limited to not-very-bright liberals. During the McCarthy Era, everyone to the left of J. Edgar Hoover was labeled a Communist.

Posted by: Howard Wasserman | Apr 15, 2018 10:35:44 PM

I don't think it's fair to say, as you do in the post, that in a world where Nazis and white supremacists can't speak, it's inevitable that everyone one disagrees with becomes a Nazi or white supremacist. That's far too cynical. What is fair to say is that in the current climate, liberal students, especially ones who aren't very bright, are apt to describe any conservative with positions they don't like on race-related issues as a white supremacist.

That said, I think it's pretty understandable that liberal students would protest Josh in these terms. I know and like Josh and am largely in agreement with him on the positions he's taken that have earned him these protests. But he has spent a great part of the last year being the leading academic defender of the legality of a policy, the travel ban, that many people reasonably view as racist and cruel, and the legality of another policy, the DACA rescission, that many people reasonably view as racist and cruel as well. And while he insists that he doesn't like the travel ban, and would support enacting DACA into law, he doesn't seem to take any issue with the doctrines that he claims make the travel ban and DACA's rescission legal legal and prevent inquiry into their possibly racist motives.

Now, I happen to also believe that every iteration of the travel ban has been legal, and I don't necessarily support the overruling of the precedent that I think makes it so, though I'm more open to it than I suspect Josh is. And I also believe that the law is sufficiently autonomous from one's views about good policy that I think it's a confusion to say that someone's a white supremacist just because he argues that a white supremacist policy (or what one thinks is a white supremacist policy) is legal. But many lawyers and law students reasonably disagree and think that the law and what we argue about it should reflect our values, especially where one isn't just arguing about the meaning of precedent, but is actively defending or at least claiming the widest possible berth for and trumpeting precedent that one takes to say that the President can adopt a racist or religiously discriminatory immigration policy, talk about his discriminatory motives in public, and still receive the greatest deference from courts so long as the executive order formally adopting his policy states some permissible purpose. Precedent, I should add, that's hardly compelled by any constitutional text. I can understand, then, why some students would describe Josh in the terms that they did, or at least why they would see him as someone who spends far too much of his time offering legal cover for white supremacist policies.

Posted by: Asher Steinberg | Apr 15, 2018 7:34:38 PM

Yes. The person dismissed a certain thing, not "law" itself.

Various people, including one liberal law professor who expressed his opinion the protest was "quite immoral," phrased things as "let them speak," but I won't be conclusive since I did not study the matter that closely.

Posted by: Joe | Apr 15, 2018 4:05:50 PM

Erica: My question is why coordination should matter, as it would seem to leave large groups with less free-speech room. And how would coordination apply if it takes place outside the room (e.g., organized chants or calls-and-responses from student standing in the hallway, so they are audible, although not in the same room and not directly interfering).

Joe: According to Josh's description, he was explaining that he opposed DACA not as a matter of policy (he said he supported the policy, reduced to legislation such as the DREAM Act), but as a matter of limits on what the President can do through EO. Limits on presidential unilateralism is "the law" Josh was talking about and that the student wanted to fuck.

Posted by: Howard Wasserman | Apr 15, 2018 2:05:52 PM

The students were given explicit notice of the policy in writing before the event. The warning should not have been necessary. And even after the warning:

"In unison, the students interrupted me, 'Nahh.' I continued, 'When I came to campus, there was a sign that said "Oppressors not welcome."' A student shouted out, 'You!'"


"A student interrupted, 'You’re very brave.' I told him 'Thank you, thank you I try.' They continued to shout over me. One said, 'CUNY Law is threatening us and protecting speakers.'"


" Someone interrupted me. I said, 'Let me speak, please.' A number of students shouted out 'Nah.' I continued, 'Were I a member of Congress, I would vote for the DREAM Act. My position is that the policy itself was not consistent with the rule of law. Which teaches a lesson.' Someone started snapping and booing. "


"A student shouted out 'Fuck the law.'"


"Amidst the cacophony, I interjected,"


I wouldn't say that they "let him speak" after the warning. They were, perhaps, somewhat less disruptive. From what I understand there were zero disciplinary consequences for any of the students involved. The enforcement of CUNY's ostensible policy was extremely lax. If that's always the case, regardless of the speaker, then -- while it seems like a dumb policy to invite speakers and then make it impossible for them to speak, at least it would be constitutional. But I suspect it is not always the case. I suspect if protesters tried to disrupt--say the keynote graduation speaker--they'd get a very different response.

Posted by: brad | Apr 15, 2018 1:18:09 PM

The protest upset numerous professors from what I can tell, including liberal ones who disagree with Josh Blackman. It should be underlined that after being warned, the group let him speak, and he even engaged with some of the protestors.

I'm strongly supportive of letting people speak, but have some empathy for those who passionately feel the stakes are so high and that such and such promotes what they deem is evil. This doesn't make them correct, but especially when they let the person speak in the end with minimal warning, I don't find what they did "quite immoral," the paraphrase a liberal law professor.

Likewise, the "fuck the law" bit was to my understanding not THE LAW itself, but a specific law, if how Prof. Blackman interpreted was what it actually required. It would be akin to someone saying he supported change of the law but currently the Fugitive Slave Law required return (with the help of militia of average citizens) of alleged slaves without due process and someone reply "fuck the [Fugitive Slave] Law."

Anyway, the particulars are important and tricky in practice, and I welcome the debate.

Posted by: Joe | Apr 15, 2018 12:45:00 PM

I'm really glad we are engaging (and disagreeing) on this issue. This post and the comments illustrate that there may be two separate questions (1) what can a university do to remove disruptive protesters, and (2) what must a university do to remove disruptive protesters. I think the answer to question 1 is broader than question 2. When there are coordinated efforts to disrupt a speaker (say, the Irvine 11 case), the university can punish this as unprotected speech, in my view. Whether they must is a tougher question. The CUNY students disrupted only for a few minutes, but that is because an administrator told them that they have to stop. I think any amount of coordinated disruption (even a few seconds inside the forum) should be punishable, or it will lead to more and more disruption -- but to fully develop this, I'll write another blog post. I'll also check out the Waldron piece on heckiing, although from my reading of his provocative and interesting writing on hate speech, I know he doesn't fully buy into the American free speech regime. Thanks much for the helpful thoughts.

Posted by: Erica R Goldberg | Apr 15, 2018 11:57:50 AM

"My own view is that host institutions have no First-Amendment-like *duty* to adopt rules giving speakers priority over protesters "

It's a public institution. That aside, the protesters are preventing the transaction between the speaker and the audience.

You have students who are puerile and emotional well-beyond the age where that is forgivable. You have a collection of LAW STUDENTS who are too crude to tell the difference between Prof. Blackman, Pitchfork Ben Tillman, and Ernst Roehm. The students will receive nothing worse that a verbal reprimand from an administrator who then beats a retreat. The students will face no loss of status among their peers and no loss of appreciation among the faculty. The only people who will lose status are a couple of faculty who complain vociferously about the quality of human being institutions of higher education have been nurturing.

The point of the distribution credits at the undergraduate level is liberal education. How effective was that system with the obstreperous youths who cannot handle listening to Heather MacDonald for an hour and feel compelled to prevent everyone else from hearing her as well?

Posted by: Art Deco | Apr 14, 2018 9:54:46 PM

This makes me wonder if there is an analog of "Goodwin's Law" in real life (versus online) conversations.

Posted by: Margaret Ryznar | Apr 14, 2018 9:42:52 PM

Whatever the rules are they have to be uniform. If the Chancellor of CUNY manages to snag RBG for a talk where he is going to give the introduction and a bunch of pro-life protesters want to stand behind them with pictures of dismembered fetuses and shout her down for only "some minutes of disruption" that can't be treated differently because CUNY likes RBG's viewpoint and doesn't like Josh Blackman's.

That goes for enforcement as well as written policies.

Posted by: brad | Apr 14, 2018 9:22:31 PM

Thanks for the suggestion of Waldron's piece. I agree that coordinated efforts can't be the answer, because speech should not lose its protection because a lot of people cooperate to engage in it, rather than it being the isolated act of one person.

Posted by: Howard Wasserman | Apr 14, 2018 6:25:47 PM

Jeremy Waldron has a useful paper on "Heckling" that's relevant to these concerns. My own view is that host institutions have no First-Amendment-like *duty* to adopt rules giving speakers priority over protesters (so, e.g., no obligation to adopt a rule barring protesters from standing behind the speaker, as in the CUNY episode), and -- more important -- that the limit is something like "actual shouting down or the near-accomplishment thereof" rather than "coordinated efforts to silence" (and what counts as shouting down is objectively determined, with some minutes of disruption alone not counting as shouting down -- which, on my viewing of the tape, indicates that there was no shouting down in the CUNY episode). [I should note as well that I'm not wild about the metaphorical use of "gauntlet" to describe the phenomenon of having to pass through a group of people holding hostile/critical signs; having experienced a lot worse in my youth, I don't have a lot of sympathy for this sort of snowflakery.]

Posted by: Mark Victor Tushnet | Apr 14, 2018 6:18:59 PM

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