Image of young rebellious man with megaphone during street protest
Yesterday evening, I attended a debate hosted by the National Constitution Center (NCC) in conjunction with The Federalist Society and American Constitution Society. The program was part of a “road tour” underwritten by the Stanton Foundation, and I thank the Informed Citizens project staff for their generosity in doing so.
The debate was attended by maybe 100 people and held at Preston Bradley Hall at the Chicago Cultural Center. If this had been a boring presentation, the location would have been distractingly beautiful. But it wasn’t boring, so Preston Bradley Hall is just plain beautiful.
The topic of the debate was “Does the First Amendment Protect Hate Speech on Campus and Online?” For the sake of those of you who didn’t get to attend, I do hope it’ll be posted online here, though it’s not up yet.
Before the program formally began, the audience was asked by the moderator, NCC President and CEO Jeffrey Rosen, to vote Yes or No, using a Quizmo device, on the question: Does the First Amendment allow public universities to adopt rules prohibiting hate speech? The results weren’t shared with us until the program’s end.
Geoffrey Stone of The University of Chicago Law School argued the negative, asserting the First Amendment prohibits public universities from prohibiting hate speech. Stone—a brilliant legal mind and very accessible speaker who chairs The University of Chicago’s Committee on Freedom of Expression—was my main reason for attending. He’s that good. (The U of C has posted online a remarkable collection of documents relating to free expression.)
The affirmative side of the resolution—that public universities are allowed under the First Amendment to adopt codes against hate speech—was very well represented by Stone’s University of Chicago colleague, Eric Posner. He came across as thoughtful, measured, and definitely not prone to sweeping generalizations.
After opening remarks, Stone and Posner were joined on the stage by Khaled Beydoun of the University of Detroit Mercy School of Law, Susan Benesch of the Berkman Center for Internet and Society at Harvard University, and Keith Whittington of Princeton University.
I came to the debate dismayingly ill-prepared: No pen or pad of paper for taking notes. I scribbled thoughts on random pieces of paper, wearing the tips off three Yahtzee-size pencils and filling three index cards with questions for the speakers. Had those index cards been collected from me, this blog post couldn’t have been written, so I’m thankful to NCC staff for not getting around to me.
Opening Remarks
Stone briefly discussed The U of C’s Statement on Freedom of Expression, adopted in January 2015, which reads in part: “the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.” The University’s “fundamental commitment,” the statement reads, “is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed.” He said universities must allow free expression because in “the real world,” students won’t be protected from speech they don’t want to hear.
That led me to write my first question never submitted to the speakers:
Are you sure the future “real world” won’t try to protect people from ideas they don’t like? Already we live in a “real world” where people who question the “consensus” on climate change are threatened with imprisonment. As today’s snowflake students graduate, they will take control of “the real world” … and they might very well want to turn it into a world that protects them from bad words.
While arguing the First Amendment permits public universities to adopt policies against hate speech, Posner made careful distinctions about where those codes could operate. He noted, for example, that the First Amendment simply doesn’t apply to students in a classroom setting: There, he said, faculty is dictator and gets to set the rules. Dorm rooms present a different case, he said: University administrators should give residence hall monitors basic rules they can apply to ease potential conflicts among roommates, giving the example of a white student whose speech or behavior might offend his black roommate.
Even in the broader “public sphere” of campus activity, Posner said universities should be allowed to disinvite speakers “who have nothing of value to say, people who are just provocateurs.” Other speakers on the program made similar statements, which I found incredibly troubling (who gets to decide what’s “of value”), but Posner argued universities judge “value” and “contribution to the proper role of the university” all the time, citing faculty hiring and tenure decisions as an example. He thinks university administrators are perfectly capable of assessing the “value” of potential campus speakers in the same way.
Posner’s remarks led me to my second unasked/unanswered question:
If a public university adopts “speech codes” and state lawmakers decide to cut off its funding as a result, can the university claim lawmakers are violating First Amendment rights held by their students/faculties/administrators?
Free-Wheeling Discussion
After Stone and Posner delivered their opening remarks, Beydoun, Benesch, and Whittington joined the discussion.
Beydoun noted universities have different “campus cultures” that ought to be taken into consideration when administrators set policies. A policy that works for The University of Chicago might not work for Harvard or University of California – Berkeley. He also suggested the “erosion of affirmative action” has caused minority representation in higher education to fall dramatically, so in many places “free speech” is unequal because majorities can exercise it effectively and minorities can’t. I noted his remarks hearkened back to something Stone had said earlier: While political liberals used to be considered the ones who supported free expression, today’s liberals are split: some value “equality” or “justice” more highly than free speech.
As Beydoun was making the point about affirmative action, I scribbled a question for him:
Is it lack of affirmative action—or failing K–12 schools—that’s responsible for falling minority enrollment in institutions of higher education?
That question assumed he was right about falling minority representation in universities, but a little research I conducted today suggests he’s not: According to the Digest of Education Statistics, white students represented 83 percent of higher education enrollment in 1976 but only 56 percent in 2014. Black students were 9 percent of enrollment in 1976 and 14 percent in 2014. Hispanic students were 3 percent in 1976 and 16 percent in 2014. Admittedly, the data are three years old, but Beydoun didn’t offer any better source.
Beydoun also raised an interesting potential constitutional conflict, noting protecting free speech—say, the freedom of students to make anti-Islamic statements—might suppress other students’ First Amendment rights to free exercise of religion. No one on the panel directly responded to this point, but I wrote in my notes: Are the students really prevented from freely practicing their religion? Or are they merely “flopping” to draw attention to something that didn’t really hurt them, in hopes of getting a favorable ruling from the referees?
Benesch, who directs the “Dangerous Speech Project” at Harvard, had a more finessed approach to the topic than I expected given the name of the project she directs! Many times during the discussion she suggested peer response, social norms, and a spontaneously developing culture would be more effective against “hate speech” than formal punishment.
By way of example, moderator Rosen opened discussion about a 2015 incident in which a bus full of University of Oklahoma fraternity members were recorded singing a racist song. A girlfriend of one of the boys used her cellphone to record the signing and posted it online. The fraternity chapter was closed and some of the boys were expelled.
The panelists’ comments on the incident were quite different. Beydoun dismissed the university’s response, saying it was meant to protect only its reputation, not the black students. Stone noted there were no black students on the bus, and the fraternity members weren’t expecting to be recorded and so couldn’t have intended the song to cause harm. Benesch noted the expulsion was a minor result compared to the social media and campus culture firestorm that resulted. I have no notes with respect to Whittington’s response; frankly, I think I paid him insufficient attention … but I think the moderator did, too.
The discussion of the University of Oklahoma frat video evolved into a discussion of social media generally. Rosen posed the question: Should hate speech on Facebook, Twitter, and other social media outlets be subject to regulation? After all, he said, those social media outlets are “so special, so pervasive, a monopoly, and unavoidable.”
I was taken aback, but shouldn’t have been given previous comments, when Beydoun suggested some Facebook or other social media sites are so “low value” they don’t deserve First Amendment protection. Well, who exactly gets to make those judgments?
The discussion then turned to the European Union’s “right to be forgotten policy,” adopted in mid-2014, under which people with the appropriate court orders can force search engines like Google to remove certain search results from their databases. Benesch noted Google is being told under the policy only to remove results from its search database—the material itself remains online, although admittedly it might be harder to find. She said the EU policy is more a “right to curate your own reputation” policy … and it doesn’t work. Repeat after me: “Left-wing activists have hijacked The Heartland Institute’s profile at Wikipedia” … and there isn’t a thing we can do about it.
To close the program, Rosen brought the program to where it began: What should happen on public university campuses? Are university administrators permitted under the First Amendment to disinvite or shut down a student-sponsored speaking engagement if it invites masses of protestors? Beydoun clearly thought university administrators were permitted to do so, arguing if the university knows a speaker is of “low value” (that phrase again!) and likely to invite protests, it has a duty to protect students from experiencing that. Whittington disagreed, noting universities need not protect students from speakers they don’t want to hear (students aren’t generally compelled to attend such events), nor should they protect students from having to go through an uncomfortable gauntlet to hear speakers they want to hear. University action might be acceptable in the narrow instance of a speaker who disrupts or protestors who interfere with a specific class, but in the public sphere such protection shouldn’t take place.
Stone explicitly discussed the heckler’s veto, noting government—including public university administrators—cannot forbid one person’s speech on the grounds that other people (hecklers) may respond violently. The university must exhaust all other options before it resorts to censorship. He also noted we live in a world where “value” and ideology are too often conflated. I definitely saw that with Beydoun’s comments—I often suspected “low value” meant “Trump supporting” in his dictionary.
And the Winner Is …
At the program’s close the audience was again asked to vote using the Quizmo device: Does the First Amendment allow public universities to adopt rules prohibiting hate speech? We learned the vote was exactly the same after the two-hour-program as when it began: 74% of us voted NO, and 26% of us voted YES.
We also voted on whether the program helped us better understand “the other side”—to which 83 percent of us responded YES.
It was a fascinating evening. But I couldn’t help but wonder, in my final unasked/unanswered question:
Wouldn’t this question be made moot simply by ceasing all taxpayer funding for higher education? Let them all be private, let them set their own policies, and let the market decide.
