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Thursday, January 04, 2024

Two items on campus speech and other protests

Two items on campus speech and other protests.

• Journalist Mark Oppenheimer has a podcast called The Syllabus, dealing with campus politics. The latest episode features Jacques Berlinerblau (Georgetown) discussing the proper role of protest on campus in light of the purposes of universities as spaces for expert discussion, not discussion writ large. He also has an interesting take on the role (or abandonment of the role) of teaching in the undergrad space.

• Jenny Carroll (Alabama, headed to Texas A&M) published Policing Protest: Speech, Space, Crime, and the Jury in Yale L.J.; she argues for a defense for expressive conduct, allowing juries to acquit someone of content-neutral offenses that implicate speech activity. The defense operates as a middle ground or hybrid of justification and nullification.

I thought of the paper (which Carroll presented at FIU last year) in light of recent protests on-campus (sit-ins in the President's office) and off (blocking bridges and airport roads). I have criticized calls for prosecutors and universities to drop charges against those who engage in civil disobedience, because civil disobedience includes bearing the consequences of breaking the law in furtherance of a cause. Carroll offers a middle ground. The First Amendment does not provide a basis for dismissing the charges, but it offers the jury (as voice of the community) to decide that free-speech values should prevail in a particular case. In other words, prosecute the Bay Bridge 78 (they are 11.14 times as great as the Chicago 7) or the Brown students who sat in the president's office and let them try to convince a jury of the expressive righteousness of their cause.

Posted by Howard Wasserman on January 4, 2024 at 12:13 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink


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