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Saturday, January 27, 2024

More thoughts on campus speech (Updated)

Several things:

Stephen Carter writes in The Times about the importance of free speech to the campus mission of intellectual curiosity and the mistakes and inconsistency of everyone--left and right--since October 7. Some really great stuff here. I do not agree with all of it, especially as to extent of protection for interruption and private opprobrium for other speech.

• [Update]: And this ALI interview with Geoff Stone, hosted by David Levi. (Note: Stone holds the Edward Levi Chair at UC, named after David's father).

University of California's  regents will consider prohibiting academic departments from using university web sites and other channels for political messages unrelated to university business. The proposal responds to many departments at UC schools posting messages supporting Palestine and Hamas and criticizing Israel. Naturally, faculty scream academic freedom, although the inability of the department to speak as an entity does not limit their ability to speak as individual (or a group of) faculty. A question from this: Chicago Principles suggest that sub-units within a university should not engage on current events, for the same reasons the university as a whole should not. But what do Chicago Principles and ideals of academic freedom say when a sub-unit of the university (e.g., UC-Santa Cruz's Ethnic Studies Department) chooses not to abide by those principles but the university imposes them?

• At the upcoming 3rd Annual Law vs. Antisemitism Symposium, I will participate in a roundtable on the legal academy post-October 7. I plan to talk about the December 5 hearing, the range of reactions to it (back to my idea about three camps), and the lessons to be drawn. There is a lot of confusion on that last, as this story from FIRE demonstrates. FIRE is pushing back on proposals at several schools to revise campus speech codes to prohibit explicit calls for genocide against groups. I share FIRE's opposition to such efforts and its arguments against these proposals. But FIRE describes these efforts as "fallout" from the presidents' "disastrous" congressional testimony.

But what makes the testimony "disastrous?" If FIRE is worried about schools expanding their speech codes, the disaster was the presidents advancing (however inartfully) the pro-speech position ("protection of speech depends on context") and getting attacked by Elise Stefanik, who insisted that calls for genocide must violate campus speech codes ("the answer is yes!"), prompting universities to amend those codes to satisfy Stefanik and other committee Republicans. If so, the disaster lay in Stefanik's response, not in their testimony. Or the disaster was their inartfulness--failing to fully explain why context matters or to precursor their statements by condemning such speech. But that requires us to believe Stefanik--a dishonest actor--would not have had the same response to a fully articulated First Amendment vision explaining why many "river to sea" chants are constitutionally protected and thus do not violate campus speech codes.

Posted by Howard Wasserman on January 27, 2024 at 12:36 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink


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