Campus Protests, Hate Speech & the First Amendment — A Timely Zoom Call Revisited

We’ve presented over 200 Zoom calls since the beginning of the pandemic on First Amendment and journalism subjects. As life returned to normal, and colleagues once again saw each other in offices or conferences, the attendance at our calls unsurprisingly decreased from maybe 100-200 in the early years when we all were stuck in our homes to about 75-125 when lawyers resumed their routines and their busy schedules. But more than anything, turnout depends on timely and controversial subject matter, and last month we had 225 viewers for a call on free speech and hate speech on campus. The call featured four experts making thoughtful and nuanced points, which I thought was worth summarizing here. At the same time, I offer a few thoughts of my own, not necessarily my conclusions, but simply ideas to mull over. 

I began by asking Prof. Eugene Volokh of UCLA Law School to outline the differences in rights and rules between public and private universities. Somewhat to my surprise, he minimized the differences, saying that even though private schools could enforce restrictions unbounded by the First Amendment, they typically do not.  He noted that private schools generally have speech codes which contractually obligate them to permit more speech and that they are held to follow these self-imposed guidelines. Second, he said that some states, such as California, have laws prohibiting campus speech codes which are more restrictive than the rules, under the Constitution, at public schools, stating that content-based restrictions are presumptively unconstitutional there. Later, Prof. Claire Finkelstein, of U. Penn Law School, added another category of restriction which could pertain even at public schools: state and local criminal harassment, stalking and intimidation laws to which the First Amendment is no defense. These are content-neutral and are not based on bias or discrimination. She also added as another way to deter offensive speech the anti-discrimination tenets of Title VI.

I asked whether, in general, Brandenburg doesn’t set an awfully high bar to restrict disruptive and intimidating speech. Prof. Jeremy Kessler of Columbia Law School replied that in addition to the regulations adverted to above, schools can frame restrictions under the “time, place and manner” rubric; he also pointed to the anti-discrimination laws which target actions and conduct, not expression, but still may serve to deter offensive speech. In the last months, school administrations seem to be employing this panoply of regulations and interests to curb disturbing, but perhaps not harassing or intimidating, speech on campuses. This is where the actions of school administrators becomes troubling. Merely disturbing speech can be alleged to be criminal harassment which is often defined by very vague terms such as “creating an abusive or hostile environment” or “unwelcome conduct.” Apparently a hostile environment can be defined as one which keeps students from their educational facilities. But how that line is drawn and whether it is a subjective or objective test seem to need clarification, the panelists agreed, and, to me seem awfully wishy washy and unconstitutionally vague under First Amendment doctrine. Later in the conversation, FIRE’s Will Creeley averred that the Supreme Court has defined the standard for harassment as being severe, pervasive and objectively offensive, such that it denies students access to educational opportunities. He underscored the “and” saying that it required that all three criteria be met, and that therefore isolated incidents could and should not be punished.

Following these introductory remarks, we then got into the nub of the issue. I posited the statement “Xs should be killed” and noted that under the criteria discussed so far, it would seem that such a statement would be protected. The panelists agreed that “99.9%” of genocidal speech is protected. So then I asked how we square that proposition with the fact that all the Ivy League presidents questioned on Capitol Hill answered that they would suspend or fire students and faculty who engaged in such genocidal talk. Will proffered that the answer to this seeming dilemma was that it was just politics. He cited as a justification Title VI, which mandates the schools must take steps to stop discriminatory harassment.

Continuing on the subject of the Congressional hearings, I noted how the Ivy League presidents were ridiculed for their answers that context matters in making these determinations. Our (more sophisticated) discussion was inexorably leading to the conclusion that the exact words spoken and their surrounding circumstances were crucial in determining whether or not the speech was protected – that is to say, context does very much matter; nonetheless, the answer about context led to the resignations of the presidents of Penn and Harvard. The political intercession into this already complex set of issues seems totally unhelpful and illegitimate when one considers that the interests which have become important are the influences of the rich collegiate donors; attorneys potentially  bringing Title VI cases against the schools for their own ends; and the Republican Congressmen, traditionally not close allies of the Jewish community, aligning with their position and criticizing the elite educational institutions to cozy up to their conservative base.

I then turned to a more general, but critical question: what is hate speech and should it be protected? I noted that in other countries, including Canada and in Europe, hate speech is far less protected than it is in the U.S. Prof. Volokh opined that the American approach was fine, but that it’s difficult to draw lines as to what “hate” speech ought to be protected and what ought to be punished. Indeed, in our discussion a number of hypothetical offensive statements were met with disagreement or headshaking as to whether they should be punishable. Eugene also argued that broad protections are needed if we are to have honest debates on controversial issues. And, of course, there also is the First Amendment interest of the speaker to consider; her choice of language – and how insulting it is – is part of her protected expression.

Creeley agreed, contending that it was worthwhile hearing even ugly hyperbolic speech, because it’s informative that people hold such views. Going against my pro-speech instincts, I questioned whether there was any value in hearing people say “The Xs suck,” but Creeley quickly upped the ante, arguing that not only were these lines tough to draw, but that it would be dangerous to have the powerful in our society deciding what is punishable hate speech and what isn’t. It also was noted that harassment must be directed at a particular person; a chant, even a genocidal chant, is not harassment if not aimed at a particular student.

Prof. Finkelstein rejoined that line drawing is always hard, but that we do draw these lines in a plethora of complex and difficult situations, and that campus speech is no different. She argued that even hate speech, which by itself seems unharmful, can lead to intimidation, interference with access to educational resources and even violence. Further, she argued that what forms of expression forward an educational purpose should be thrown into the hopper. I found that comment very telling, because so little of this debate focuses on that side of the scales: without advocating for a European-style balancing test, shouldn’t we somehow factor in, even in considering disturbing, threatening or harmful speech, just how valuable it is for educating and informing listeners on all sides of the debate. After all, as we all know, in privacy law, whether or not the content is of legitimate public interest is part of the test, not only the degree of offensiveness. So, for better or worse, judges are sometimes called upon to evaluate the value of the speech under consideration. Thus, I would look at “all Israelis suck” in a very different light as “Israel is too aggressive and ought to be defeated by its neighbors”. While the former, standing alone, still might be short of the demarcation for punishment or suspension, it seems different in kind from the later which at least forms the beginning of a geopolitical debate.

Prof. Finkelstein also emphasized that both Jewish students and faculty feel unsafe and offended at Penn and other campuses, and are unable to work normally. Inherent in what she said was a subjective standard – that’s the way they feel. Sad as that is, shouldn’t, however, some sort of objective standard be brought into play before suspensions or punishments are levied against those who make them feel that way? How to adjudge an objective standard – what kind of behavior would reasonably make them feel that way and reasonably keep them from concentrating on their studies – seems like an impossible task. But don’t we otherwise have a multi-fold problem: students can easily exaggerate their fears and distractions, and some students may have an eggshell skull (as I recall from first-year torts) and be intimidated at the slightest provocation.

Over the last two decades students have been influenced by administrations and faculty to feel that they should be protected from discriminatory content, that they should have “safe spaces” to keep them from even hearing arguments they disagree with.

When I gently raised this idea, Prof. Finkelstein had a very interesting answer. She said that over the last two decades students have been influenced by administrations and faculty to feel that they should be protected from discriminatory content, that they should have (in my view the dreaded) “safe spaces” to keep them from even hearing arguments they disagree with. She added that university bureaucracies have expanded in response to the Title VI environment to enlarge their DEI departments, to offer anti-bias training and to punish and regulate all sorts of discriminatory conduct and speech. All this, she contended, has made students more sensitive to any sort of disagreeable speech, let alone abusive language. Moreover, the very environment of keeping them free from insensitive and offensive speech has justified these students at being aggrieved when such speech occurs. So ironically, the very administrative behavior meant to protect students has led to the anti-speech quagmire we find ourselves in now.

I ended by giving Prof. Kessler of Columbia the last word, as he, after all, works at the ground zero campus of this issue. He answered by summarizing what seemed to be the consensus among our panelists:

• As a starting point, action can be punished, but not, with few exceptions, expression
• Encampments should be blocked, and the time, place, manner rule gives ample legal justification for this
• School administrations can’t play favorites, and must be content neutral
• Evil and offensive speech generally ought to be protected
• But protests and demonstrations shouldn’t be allowed to interfere with or disrupt campus life and the schools’ educational mission
• Loose and opaque hostile environment rules are ineffective and unhelpful

Further to that last point, I pointed to Columbia’s speech code which seemed both awfully vague and, taken literally, ould seem to outlaw almost any even slightly tainted or offensive speech, including ethnic jokes. Turning to a more real example, I asked whether Columbia would punish speakers who chanted “From the River, to the Sea” – was that genocidal speech, harassment or political speech. Jeremy said the Law School had asked the General Counsel’s Office and the Administration for clarification of that very question in order to better advise their students as to what they may or may not say. So far, they have received no response.

George Freeman is executive director of MLRC. All views expressed are his own, and not those of the organization. Comments and questions are welcome; email gfreeman@medialaw.org.