Sunday, September 24, 2017

Free Speech on Campus

Mark Tushnet

On Friday I published a piece in Vox attempting to describe the application of the First Amendment to free speech on campus, focusing on the then-pending Free Speech Week at Berkeley (now canceled, but I hope the exposition remains helpful). Erwin Chemerinsky, dean at Berkeley Law,and Howard Gillman, chancellor at UC-Irvine, have published a book on "Free Speech on Campus," reviewed in the Washington Post. (I haven't read the book.)

In my piece I asserted that, in my view, people who attend a speech and vigorously disagree with the speaker by shouting him or her down, don't violate the speaker's constitutional rights. I did so because my sense is that a lot of people think that the speaker has some sort of constitutional entitlement to get his or her message across. I think it's reasonably clear that speakers don't have such a right.

On my Facebook page a modest controversy arose among me, Geof Stone, and Daria Roithmayr over a related but different issue: Would a college violate the hecklers' constitutional rights if it intervened to stop them? Analogizing the problem to a ban on noise that unreasonably interfered with a facility's ordinary operations (including a loud political protest outside a hospital or a classroom building), Geof wrote that there would be no constitutional violation. I'm more ambivalent about that claim because, it seems to me, the speaker and the hecklers are symmetrically situated with respect to speech. So, it seems to me, we need either a content-neutral rule that explains the preference for the speaker's speech over the hecklers', or a balancing test (that somehow doesn't take content into account).

Geof's content-neutral rule is "unreasonable interference with ordinary operations" (or something like that -- the Facebook format doesn't encourage more precision than that). My concern is that sometimes the interference arises from speech activities rather than mere noise (as Geof's examples of political protests show), and that sometimes the interference is with speech activities, and that those distinctions probably ought to matter in developing the content-neutral rule. (One way of putting the point is that a lot might be concealed within the word "unreasonable.")

My sense is that a lot of people have an intuition that something like a "first come, first served" rule explains the permissibility of preferring the speaker to the hecklers. I think it's more complicated than that, mostly because it's not immediately apparent why the speaker is the "first" -- if the hecklers are in the room, they are the "first" to hear the speech (certainly as between them and the speaker's supporters, they are symmetrically situated), and if they are outside the room, the hecklers are the first ones in that specific venue. (For the cognescenti, I refer to Miller v. Schoene as illustrating the problem of symmetry -- in a different doctrinal context.)

The difficulty with a balancing test, of course, is that it's really hard to figure out how one could devise one that didn't take content into account. Suppose the heckling takes the form of repeated shouts of "You lie!" (remember congressmember Joe Wilson?), and the like, at every assertion by the speaker, to the point where the speech is disrupted. I doubt that there's a way to strike balance that doesn't take content into account.

OTOH, Geof has thought a lot more, and for a lot longer time, than I have about free speech problems, and the fact that he thinks that there's no constitutional problem with preferring the speaker to the hecklers certainly gives me pause, and -- once the pause is over -- I might end up agreeing with him. (I do note that, as the citation to Miller v. Schoene suggests, my position may well derive from deeper, Crit-like analytic [not surface-level political] commitments that Geof of course doesn't share.)

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