North Carolina Passes An Entirely Misguided Restore Campus Free Speech Act
from the speech-is-speech dept
You will recall that we were just discussing a proposed law in Wisconsin that sought to do a number of things on college campuses, including limit the ability to protest and shout down controversial speakers, as well as mandating quite insanely that school administrations must "remain neutral" on the "controversial" topics of the day. It's a source of frustration for me that it's not immediately clear how bad an idea this is for any number of reasons. My two chief complaints about the law, built upon a legislative proposal from the Goldwater Institute, are how broad a range of topics this could conceivably cover and how it quite plainly seeks to favor one form of speech over another. Put simply, giving state governments oversight about which topics a university administration is allowed to opine while also mandating punishments for students who protest to shout down speakers is about as anti-free speech as it gets, even as the proponents of the legislation attempt to shroud themselves in that most sacred of American ideals.
Well, North Carolina also had a similar bill under consideration, and indeed the state went ahead and passed its Restore Campus Free Speech Act. When you travel to that National Review link and/or read the pull quotes below, keep in mind that these are the words of a supporter of the bill and someone, Stanley Kurtz, who worked on the original Goldwater proposal.
The North Carolina Restore Campus Free Speech Act achieves most of what the Goldwater proposal sets out to do. It ensures that University of North Carolina policy will strongly affirm the importance of free expression. It prevents administrators from disinviting speakers whom members of the campus community wish to hear from. It establishes a system of disciplinary sanctions for students and anyone else who interferes with the free-speech rights of others, and ensures that students will be informed of those sanctions at freshman orientation. It reaffirms the principle that universities, at the official institutional level, ought to remain neutral on issues of public controversy to encourage the widest possible range of opinion and dialogue within the university itself. And it authorizes a special committee created by the Board of Regents to issue a yearly report to the public, the regents, the governor, and the legislature on the administrative handling of free-speech issues.
It all sounds so reasonable until you actually think about the implications of the law. Let's address them in order.
To start, requiring a university to affirm the importance of free expression is the kind of pablum born from trying to establish that there is a problem where one doesn't actually exist. Does anyone imagine that polling the nation's universities on this question would result in some schools saying, "Meh, free expression isn't that big a deal"? Come on.
As for disinviting speakers that "members of the campus wish to hear from", let's talk about that. First, how many members of campus are we talking about? And how are we to gauge their interest? If some tiny college group wants to invite a controversial speaker to campus to speak, where 90% of the campus doesn't want them anywhere near the campus, the administration is simply supposed to keep its hands tied? Or are the numbers something different? All of this is unclear in the law, even as it happily neuters a school's ability to manage its own campus. Why is a state legislature a better arbiter of who belongs on campus than the school itself?
Then there are the disciplinary sanctions on students that "interfere with the free-speech rights of others". This is the really silly part, because it seeks to scholastically criminalize speech in order to protect speech. The proponents of this law will want to say that this refers to students rioting, or accosting would-be invited speakers, but there are already laws on the books to prosecute those crimes. Instead, this law seeks to punish students that attempt to shut down speaking engagements via peaceful protest, which is a form of speech. The law originally required mandatory suspension from school for students who are found to have violated the law twice. The universities beat that back and had it struck, but the proponents of the bill aren't even pretending that they aren't trying to stop anything other than the speech of students, while also detailing how its newly-created committee reports will be used to simply toss out adminstrators lovers of the law don't like.
Without the mandatory suspension for a second offense, the university could conceivably undermine the law through lax enforcement. Yet it’s not as simple as that. If the university refuses to discipline shout-downs in the wake of passage of this law, there will be consequences. For one thing, the annual report of the Board of Governors will either condemn the refusal to discipline, or the committee will itself be subject to public criticism. A negative report on the administrative handling of discipline would give the Board of Regents a reason to replace administrators, and legislators a reason to cut university funds.
Punishing "shout-downs"? That's a pretty bald-faced acknowledgement that this bill will curb the free speech of students in favor of the free speech of invited speakers. In other words, this bill cuts in only one direction: students that are paying to attend school now have less speech rights than guests invited onto the campus. If that doesn't immediately demonstrate how flatly gross this bill is, you need to recalibrate your sensors.
Look, I said this in the last post, but I'll say it again: anyone that wants to say that campuses today are not as open to outside or unpopular viewpoints as they once were or should be won't get anything other than agreement for me. I tend to think the problem is overstated in certain circles, but I do agree that campuses today are generally less open-minded than they should be. But the solution to that is to win the argument via speech, not to run crying to state legislatures to simply curb the speech of others.
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Filed Under: campus, free speech, goldwater proposal, north carolina, wisconsin
Reader Comments
The First Word
“Yes, as some already have. I wouldn't expect most to say it, but when pressed on details I wouldn't be surprised to find a majority of public universities actually not supporting free expression. FIRE exists for a reason.
<EM>If some tiny college group wants to invite a controversial speaker to campus to speak, where 90% of the campus doesn't want them anywhere near the campus, the administration is simply supposed to keep its hands tied?</EM>
YES. Why would you advocate otherwise?
<EM>Punishing "shout-downs"? That's a pretty bald-faced acknowledgement that this bill will curb the free speech of students in favor of the free speech of invited speakers. In other words, this bill cuts in only one direction: students that are paying to attend school now have less speech rights than guests invited onto the campus.</EM>
Depends on what's meant by shout-downs. If hecklers are inside a venue AND disturbing the ability of others to hear the speaker they've showed up to hear, then they should be removed. If they're outside of the venue (and NOT physically preventing people from attending), they shouldn't be subject to any punishment.
As far as a committee calling out Universities for not actively protecting speech rights of invited speakers--consider times in history where the police turned their backs (or even took an active part) and allowed crowds to commit crimes against the disfavored. For example, the police being complicit in beatings of the Freedom Riders. There are definitely cases recently where Universities have abdicated their responsibility to keep the peace (e.g. Berkeley). I'm not sure what the right thing, if anything, is to do about this, but threatening funding seems to be a go-to way for legislatures to get compliance out of entities they don't directly control...
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Shouting down isn't "free speech", it's a lack of decorum, and mainly "used" when you really don't have a logical argument. Get enough people shouting and it doesn't matter what the "opposition" is saying, they simply can't be heard - THEIR free speech rights are being suppressed.
Setting rules of behavior at events in no way infringes on rights of free speech.
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OK settle down there genius. If you knew anything about the subject, you'd know it isn't always so easy to sum up a complex free speech question in eight words.
Protesting a speaker is absolutely free speech. At what point does that become "preventing" them from speaking? Wait - is it up to them? Like if a speaker leaves saying they feel uncomfortable because of 5 people in the back chanting, were they now "prevented" from speaking?
And how, exactly, is students protesting a speaker a violation of free speech, while creating rules to stop those students from protesting isn't?
Absolutist oversimplifications are not helpful here.
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And may absolutely be blocking free speech. Which isn't in conflict with the First Amendment since the Bill of Rights sets the limits of government, not of private persons.
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It's no different than using an airhorn at an event to prevent the person speaking from being heard.
Hell, it's no different than sending 10,000 replies to your comment so that nobody can read it easily.
The "technique" is intellectually dishonest, crass, and boorish. And reflects badly on those who practice it by everyone but their own circle.
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The part where it is not a government action. A shout-down does not stop a person from expressing themselves in other venues or through other means of expression beyond actual speech.
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Reducing the total concept of free speech down solely to the legal and equitable rights that a court may, or may not, protect under the aegis of the first amendment — that cramped reduction does violence to the concept.
Metaphorical violence, to be sure: The judges in the high courts beat the subject with stout staves til conceived to fit within small cells, surrounded by stone, windowed light shadowed through iron bars. It's intellectual violence.
But the reduction is ultimately harmful. Harmful even to the core fabric of our constitutional understanding.
The U.S. first amendment is less than free speech.
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Hmmm...
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Free speech use to be a positive. Haul out your actual soap box, stand in the middle of the park, and yell out your opinion as loud as you like. People might laugh, people might point. but you could do it.
Now you try to bring your soap box and people beat you up for showing up and expressing an opinion they don't like.
People seem to have confused unpopular speech with illegal speech. Instead we have a mob rules problem.
Remember Ann Coulter being blocked from speaking at a Uni? I think she's a dumb (insert foul word here) but I also respect her rights to express her opinions - providing that those opinions are legal. That universities have to cancel her legal speech because of mob rules is a really sad thing.
Yes, the mob is expressing their opinion. But their free speech ends where it impinges on the free speech of others. When the schools have to shut down events because of threats of violence and destruction of school property, something is really wrong. Laws like this, while perhaps overbroad, are an attempt to find a solution to this oppression of rights and opinions of others.
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That is still protected speech, though. And nothing is legally preventing the shouted-down from shouting back or expressing themselves through other avenues of expression.
You still can. The only thing stopping most people is the fact that complaining on the Internet offers immediate satisfaction and fewer consequences than does going out in public and yelling in the middle of a public park.
In fairness, the opinions that get people punched often resemble the kind of rhetoric that would go over well at a Klan rally. Justified? No. Understandable? Hell yes.
Admittedly, yes, heckler’s vetoes and whatnot are a legitimate threat to the freedom of expression. That said, not all speech is “equal” in terms of having legitimacy—e.g., racist propaganda, screeds about how women are biologically inferior to men and should thus leave tech jobs to men—and protests against such speech should be protected.
Holding any given opinion, even ones about illegal activities, is legal. Acting upon opinions about obviously illegal activities, on the other hand…
We could have a nuanced discussion about whether universities that receive public funding should have the right to exercise discretion when choosing who to invite on campus as a speaker. That said, universities should also be able to consider factors such as student safety and the overall legitimacy of a person’s ideas and opinions before allowing that person on campus to speak. How much would you really fault a university for disinviting, say, an advocate for the revival of racial segregation?
Being denied a platform—or being protested while on that platform—does not necessarily infringe upon the free speech rights of a given person. That person can go find another platform and speak there.
Inviting speakers who advocate for horrible ideas (e.g., advocating for legalized rape) and threaten the safety of other students (e.g., outing a trans student against their will) is just as wrong.
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A shouting contest becomes one of numbers, majority rules. That isn't what free speech is about. Nobody should be forced away from one avenue of speech because someone else disagrees with them.
"In fairness, the opinions that get people punched often resemble the kind of rhetoric that would go over well at a Klan rally. Justified? No. Understandable? Hell yes."
The thing is, if you believe in free speech, and the speech itself is not illegal, then you need to hold your nose and support their right to say it, even if you don't agree with it. If the Klan's speech is hate speech and illegal, then damn them all you like. But if it's legal, a true supporter of free speech needs to recognize it's still valid speech.
That's why I say what happened to Ann Coulter and Milo whathisface is shameful. If what they are saying it not illegal, taking actions that force schools to cancel such events is shameful, no matter how you feel about the content.
"Being denied a platform—or being protested while on that platform—does not necessarily infringe upon the free speech rights of a given person."
A platform not equally offered is in itself a form of censorship. It means that the rights of the few are diminished by the complaints of the many, and that isn't what free speech is all about.
"Inviting speakers who advocate for horrible ideas (e.g., advocating for legalized rape) and threaten the safety of other students (e.g., outing a trans student against their will) is just as wrong."
Again, if the speech is illegal, then it's not free speech and there is no issue. You have to be really careful here, you may not like the speech, but if it's legal speech, then you need to support their right to express it, even if you don't like it.
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In theory or in principle? No, it isn't. In practice? Yes, it is.
Think about how societal norms have changed in the past century: Where it was once socially acceptable to use racial slurs in public, now we often avoid doing that because we know it has social consequences. Expressing offensive ideas such as “we should legalize rape” or “Black people need to go back to Africa” in public does not deserve protection from consequences—whether that means people debunking and demolishing such arguments or people shouting down those who make them. Violence is the only unacceptable response to such speech.
I can believe in a Klansman’s right to express racist ideas without believing he deserves to do so without facing consequences or criticism.
Again, this should lead into a more nuanced discussion about whether public universities should have the right to disinvite speakers based on factors other than—but also including—the ideas and opinions they seek to express.
Unless we are talking about public spaces, a platform is a privilege, not a guaranteed right. Again: nuanced discussion, university's rights, yadda yadda yadda.
Advocating for legalized rape or racial segregation is not technically illegal. Would you still want the government to force universities into hosting such speakers, even if the higher-ups would rather choke on dollar-store razor blades that let those people on campus?
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Honestly? I'd probably rather just get rid of officially recognized student-run groups altogether. Education costs enough without forcing students to pay for groups they may disagree with. But, if you do have them, you can't censor them.
Also, "would you want the government to force universities" is kind of a strange way to put it - state universities are actually part of the government, which is why the First Amendment comes into play. It's the same as if they had rented a city park, or applied for a parade permit. The government can't deny such things only when they don't like what's being said.
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Maybe, but I see it as sort of an odd thing that a government would actively want to make a public university host, say, a Neo-Nazi speaker or a Klan rally if some student group wanted to make that happen. Reputations still matter, and a university seen as openly friendly to racists will suffer from that reputation.
While the idea of protecting the right of free speech and expression is important, at what point does protecting that right become too much of a burden for even a publicly-funded institution to bear? How far should a public university go to balance the safety of students and the rights of invited speakers?
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Probably. And a city with frequent KKK rallies is also going to have a bad reputation. That doesn't mean the city gets to shut down the rally, no matter how much they want to.
Yes, universities often might want to censor student groups, but legally, they can't. A university that censors speakers based on viewpoints is going to get sued, even without this law. For example, see the recent 8th Circuit ruling that Iowa State couldn't prohibit a student group from advocating for marijuana law reform (or even from using the school's logo on their T-shirts!) To quote from that decision:
I think it's obvious how that applies to the sort of situation we're discussing here.
That depends on what you mean by "safety". If you have someone on campus advocating against gay marriage, that's protected speech, no matter how "unsafe" people may feel. If you have someone on campus trying to incite the students to kick the nearest gay student, that's incitement and the campus would have a duty to shut that down.
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Where does “outing a trans student without their consent” fall on the continuum between those two extremes?
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Technically, no, it is not. But when that outing is done without the consent of the person who was outed, and that outing exposes them to possible harassment and violence, how is it anything but a naked attempt to put someone‘s life in danger?
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"Except as further limited by this Article, constituent institutions shall be allowed to restrict student expression only for expressive activity not protected by the First Amendment, including all of the following:...
(5) An unjustifiable invasion of privacy or confidentiality not involving a matter of public concern."
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Only slightly, though I do genuinely appreciate the fact that this provision does exist.
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If you're going to quote from a decision, it would be polite and courteous to provide a link to it, so that everyone may see the quote in context.
You were quoting from Gerlich v Leath (8th Cir. 2017) ?
Or perhaps you were quoting from some other “recent 8th Circuit ruling” ?
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You are still missing the point. If the speech is legal, why is it being censored before it happens?
The schools generally shut down events because they feel that they cannot provide adequate security. Why? Because people aren't protesting with their voices, they are protesting with physical violence, occupation, and fighting. The schools want to avoid having to pay the price because people resort to violent protest to shout down legal opinions they do not like.
I am also not sure where you get your examples. "advocating rape" is a weird topic, and certainly advocating illegal acts may in fact by unprotected speech. "All blacks back to Africa" is distasteful speech, but it appears to be protected by the first amendment. Are you suggesting that Ann Coulter or Milo whatever was advocating rape or sending blacks back to Africa?
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While I do not condone violent protests, I understand them. You, perhaps, do not.
Roosh V, who has spoken on college campuses before, once advocated for the legalization of rape. Plenty of racist assholes have used “go back to Africa” rhetoric, whether during their speaking engagements or not, and sometimes in slightly different terms (e.g., “peaceful ethnic cleansing”).
My overall point was that, while legal, such offensive speech is distasteful at best and just shy of the line of incitement at worst. Hell, Milo himself got right up on that line during one of his speaking engagements when he outed a trans student, thus opening that student up to possible harassment and violence. How can you not understand, without either condoning or condemning, the idea that people feel the need to shout down an asshole like him before he does something that dangerous?
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"Roosh V, who has spoken on college campuses before, once advocated for the legalization of rape. "
Actually, what he specifically advocated is to have the standard of consent moved from the moment just before the sex act to "she came home with me and crossed the threshold". While don't agree with him and I do see how it might lead to some unfortunate criminal acts, it's one of those things that sits just inside the line.
He is a distateful human, I think we both agree. Yet, if you truly believe in free speech, you can understand that he has the right to say it, and you have the equal right to disprove him.
" Milo himself got right up on that line during one of his speaking engagements when he outed a trans student, thus opening that student up to possible harassment and violence. "
Is that Milo's fault, or a fault of a society unwilling to accept someone who may be different from them? Again, I think Milo is a classic meglomaniac ass, but at the same time I understand that what he says generally falls into protected free speech.
So you see, you can line them up, from the KKK to Sarah Palin, from Milo to the Westboro church and on through to Alex Jones, and while most of them are disagreeable to a greater or lesser extent, I understand and accept that just about everything they say is protected (but gross speech). I also think that in most cases, exposing these roaches to the light is the easiest way to make the scurry, and makes them easier to swat and kill their demented ideas.
The cure to speech you don't like is more, not less.
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Perhaps you can explain to me the distinction between the following two statements:
It's not a problem with the event or the speaker, but with the people attending, if those people get violent, and therefore the event should be allowed to go forward.
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You are wrong, even a grant, privilege or benefit may not be withheld or revoked on account of protected speech. There is a long line of cases establishing the boundaries of permissible state action -- and you can't get around the First Amendment by characterizing the right of the speaker or listener as a privilege, i.e trademarks which can't be denied on account of offensiveness (see Matal v. Tam).
A limited or designated public forum is clearly 'a public space' for purposes of the First Amendment.
(1) It's on government property.
(2) The state imposes the rules for permitting or not permitting the public speakers.
(3) The government may have set up a system for students having the right to invite off campus speakers.
Granting all that, there is clearly state action involved and the First Amendment along with other constitutional rights are fully applicable, at least if to adults in a higher learning institution.
Rules for free speech in high school are different, but universities are bound by the First Amendment -- no less than the police department.
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Two things:
I specifically noted that my statement did not apply to public spaces.
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Distinctions [was Re: Re: ]
Consider the parallel proposition: ‘Police should also be able to consider factors such as citizen safety and the overall legitimacy of a person's ideas and opinions before allowing that person onto city sidewalks and into public parks to speak.‘
If you agree with the original statement, but disagree with that parallel proposition, then there must be some distinction you're making with respect to city sidewalks and parks when compared to public universities.
What's the distinction?
Later on this thread, you talk about “public spaces” and a “nuanced discussion”. But as far as I can see, your nuance —so far— consists of “yadda yadda yadda”.
So, again, specifically, what's the distinction between a public university auditorium and, say for example, the city facility that was involved in the 1975 case of Southeastern Promotions v Conrad? Certainly, you can't be making a distinction between city facilities and state facilities.
In the case of a public university instituted by the state, what's the distinction exactly?
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On the bare surface, you are correct: There is no distinction between a public university and all other public spaces, such as a city park. (For the purposes of this comment and any others in this specific chain, “city park” will stand for “public spaces”.)
But there are subtle distinctions between the two that make the situations slightly different. For starters, a city park is usually not enclosed, and it is open to the broader public regardless of time of day or year. No one needs an invitation to walk into a city park and start yelling about chemtrails or misandry. On the flip side, universities typically have lots of enclosed areas, are not open to the broader public year-round, and often require an invitation for people to speak in one of those enclosed areas.
Ann Coulter could walk into a city park and start yelling about her pet causes all she wants. If she can gather a crowd that worries local residents and the police, well, tough shit for anyone who might dislike her. But she cannot walk onto a public university, commandeer an empty auditorium, and start yelling about her pet causes there. Even this “protect campus free speech” act does not give her that privilege.
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Speakers also don't have a right to be paid for their speech. Most "disinvitation" protests would be plain old counterspeech if the university isn't officially paying the speaker (probably ridiculous sums of money) to speak. If students have even the most minor amounts of control over where their (ridiculously high) tuitions are spent, I can't see that as a problem. I think this is particularly valid when students are protesting speakers who themselves have a habit of shouting down and locking out (on their home turf) speech with which they disagree.
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But they have a right to seek payment. The New York Times doesn't have a right to your subscription fees if you don't want to pay, but your city can't ban them from selling, either.
>Most "disinvitation" protests would be plain old counterspeech if the university isn't officially paying the speaker (probably ridiculous sums of money) to speak.
If the university were the one paying, I'd agree that they should be able to dis-invite anyone they invite. But in most of these situations, it isn't the university itself that is paying - it's a student group, which gets funds from mandatory student fees which are technically distinct from tuition.
You could argue that student groups shouldn't be getting funding from student fees in the first place (and I'd agree.) But regardless of funding, if the university has such groups, and allows them to invite speakers in general, the university can't pick and choose which speakers they agree with. They have to allow all of them (unless there's some reason beyond merely disagreeing with the views of the speaker.)
>If students have even the most minor amounts of control over where their (ridiculously high) tuitions are spent
Student fees generally go through the student government, which is elected by the students. The student government also cannot pick and choose which speakers get invited, but they DO generally have the power to drastically cut funding across the board to student groups, if they were so inclined.
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More reasonable opinions may involve you getting hit by a car.
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Historical perspective [was Re: ]
Rioting in response to unpopular speech is not a particularly new phenomenon.
Terminello v Chicago was decided in 1949. The case arose from events that took place in 1946.
Mr Justice Jackson's dissenting opinion in that case is worth re-reading for more than just its oft-repeated final line. He quotes from Terminellos's testimony to paint a vivid picture of a riot.
That was the late 1940s. Just after the end of WWII. An era that almost all readers here know only from history books and grainy, black-and-white news reel footage.
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She studied at Cornell University and helped found The Cornell Review. She writes books, columns and appears on television and radio.
Here is the problem. Just because she expresses views that you don't agree with, you call her dumb (and probably wanted to follow that with cunt, you misogynistic bastard).
She is anything but dumb. Pretty sure she makes more money than you do, pretty sure she lives a better life than you do and pretty sure she is recognized and will be remembered by more people than you will.
Dumb? I don't think so, she gets paid a lot of money to talk about things, you post here.
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A situation that's as stupid as Techdirt's comment-troll-du-jour, who thinks their speech deserves undeserved prominence on Techdirt's community comment platform.
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Those who prattle the most about "free speech" are the most likely to mean solely "the kind I approve of".
"If some tiny college group wants to invite a controversial speaker to campus to speak, where 90% of the campus doesn't want them anywhere near the campus, the administration is simply supposed to keep its hands tied?" -- Your words marginalize and the number is trivially loaded, but you stil can't make that work. -- But YES, that's FREE speech in the OLD conservative and even liberal tradition. You stand back and let others have their say. That's civil society.
You CANNOT be for free speech AND for shouting people down. -- If you don't want to hear, you're not forced to. We don't (yet) live such that the whole country gets to shout down even ONE person. This society is built on the individual.
You snowflakes use "controversial" as if any and every "controversy" is to be avoided. -- And of course you generally mean "conservative", because that's who's getting shouted down of late.
And look at what Google did to James Damore in last two days: argue even when asked to, and get fired! Yet you snowflakes keep pushing corporatism, want those legal fictions to have unlimited power over "natural" persons.
We know what Masnick means by free speech: not any national topic, just the ability to insult and defame one person without consequence. That's what is really driving Techdirt crazy of late. You know Masnick blew his "free speech" on nothing worthwhile.
You kids actually have nothing to say and nothing to counter with. You just want the ability to shout down all others so can "win" by default. That's evident here just today.
You and Techdirt are slowly coming out as authoritarians, believe that the corporatized globalist structure you've been indoctrinated with must win at any cost -- even the cost of your own free speech, should you be found thinking independently.
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Unless you believe a university should be forced to invite a Neo-Nazi onto campus for a speaking engagement…yeah, you can be for the right of people to speak their minds without government interference while still believing that the speech of certain individuals deserves to be shouted down.
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So as strong "free speech" advocate you're FOR "the ability to protest and shout down controversial speakers"?
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Those comments may appear later on, but the discussion will long be over before anyone notices them!
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Yes, actually. If officially recognized student groups are allowed, those groups cannot be censored by a public university, or you run into First Amendment issues.
Nobody is forced to listen to those speakers, by the way, if they don't want to.
"Punishing "shout-downs"? That's a pretty bald-faced acknowledgement that this bill will curb the free speech of students in favor of the free speech of invited speakers."
I have a hard time categorizing "shout-downs" (By "shout-down" you mean literally preventing someone from being heard, via raw volume, right?) as free speech. Protesting itself is protected by the First Amendment (and the model law affirms this), but protesting in a manner that prevents the other side from speaking is another thing altogether. And as far as any implication that students are treated worse than speakers goes... well, if any student wanted to be heard, I bet they could arrange to speak for some other student group, and get the same protections from being prevented from speaking.
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I would love to hear an explanation for why protesting suddenly becomes “illegal” or “not protesting” based on the volume of said protests.
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This is a time/place/manner restriction, not a content-based restriction. The government is generally not allowed to do content-based restrictions, unless they fall into clearly defined categories like true threats. But the government IS allowed to do reasonable time/place/manner restrictions.
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Assume that no classes are going on at the time of these loud protests. What, then, turns a loud protest into an “illegal” one?
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Well, that depends on the law. But the First Amendment would, in my opinion, allow a law that prohibits disrupting someone who is speaking on behalf of an official campus group, just like you can prohibit disrupting a class, or disrupting sleep by loudly protesting at night.
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Aside from the obvious answer of “violence”, how would you define “disrupting someone” in this situation?
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OK, I found the text of the NC bill at http://www.ncleg.net/Sessions/2017/Bills/House/HTML/H527v6.html and I quote the relevant part (emphasis mine):
"The constituent institution shall implement a range of disciplinary sanctions for anyone under the jurisdiction of a constituent institution who substantially disrupts the functioning of the constituent institution or substantially interferes with the protected free expression rights of others, including protests and demonstrations that infringe upon the rights of others to engage in and listen to expressive activity when the expressive activity has been scheduled pursuant to this policy or is located in a nonpublic forum."
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The wording there is broad enough to criminalize protests and demonstrations both within and outside of wherever the invited speaker is expressing themselves. Within a place, I can understand, but if the protests are outside and are not otherwise preventing people from entering the building, would they still be criminalized just for being loud? And what about silent protests within the building, such as people holding up signs or turning their backs on the speaker—would those be criminalized as “substantial inteference”?
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Silently turning your back does not substantially interfere with anything. Holding up signs could, especially large signs near the front.
Being so loud outside a building that people inside can't hear what someone with a microphone is saying? You're probably in the realm of violating your city's noise ordinance anyway, and possibly damaging your own hearing.
I'm not exactly sure why you think that a university which apparently would have dis-invited the speaker if not for this law, would suddenly go insane and decide to discipline basic protests.
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And an accused student does get rights, according to the new law, so they won't be quite so easy to railroad:
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Unlawful assembly [was Re: Re: Re: Re: ]
Rephrasing your question: Under what circumstances may the police power of the state be wielded to declare an assembly unlawful? Certainly, the police do not have unlimited discretion to get on a bullhorn and order a crowd, ‘Disperse!’ ‘Disperse immediately!’
Yet, at some point, deployment of flash-bangs, pepper spray, and tear gas becomes an accepted option under law.
‘Sit down and put your hands on your head!’
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Run onto a basketball court during a televised game and see if you are arrested.
Walk up onto a stage during a speech and become YouTube famous and the University does nothing about it?
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The civilized way is you get to speak and they get to speak.
The brute way is mob violence or out and out civil war.
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How are “shouting down” and “violence” the same thing if one involves actual violence and the other does not?
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The only speech that NEEDS first amendment protections is contrary speech - if everyone agrees with the speaker, there's no need for protections.
Showing up to shout down a speaker is, at root, the Streisand Effect. Most people would never have known the speaker existed, or their stand on "whatever" if a crowd hadn't shown up for a shout down.
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ooh ooh oooh
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First Amendment anybody?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Congress shall make no law [...] abridging the freedom of speech. The First Amendment is against the government interfering with discussions, like the Bill of Right in general is explicitly about reining in the scope of what government may choose to regulate.
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Re: First Amendment anybody?
Well, considering that we're all talking here about a North Carolina law, enacted by that state's legislature, and which regulates an educational institution established by the laws and constitution of North Carolina, then following your reference to the U.S. Constitution's first amendment, you should probably also mention the due process clause of the fourteenth amendment. Then maybe you could mumble something like “incorporation” or “state action”.
And after all that, then people might still be guessing a just a little bit about what you intended to get at with this comment.
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Re: First Amendment anybody?
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If the protests in question were happening inside the venue, very few would object to the hecklers being removed.
Conversely, if I were told that I was not allowed to protest a bill, or debate, or town hall, neither at the event itself nor at any public space nearby, I would consider that a major attack on free speech.
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In general, from several comments above, it seems like some people have no problem with protesters being overly disruptive at an event as long as they agree with the protesters. I disagree with that and think that inside an event, whether public or private, you should have to be non-disruptive and respectful of the rights of others who may hold different opinions than yours and are interested in listening to the speaker.
Outside the event is a different story and you should be allowed to protest the event on public property. That said, I personally draw the line at preventing people from being able to get to the event (like happened at some campaign events last year where protesters blocked off roads and sidewalks preventing people from getting to an entrance for the event).
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Vagueness [was Re: Re: Re: ]
From the act—
(Emphasis added.)
If the phrases “substantially disrupts” or “substantially interferes” are so vague that you have to guess at their meaning, then how can the Board of Governors develop and adopt more definite language?
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Re: Vagueness [was Re: Re: Re: ]
From that, I would interpret
substantially interferes with the protected free expression rights of others, including protests and demonstrations that infringe upon the rights of others to engage in and listen to...
to mean that if you are shouting down a speaker, that is infringing on someone else's right to listen to. Is it not? I would still see it as permitting peaceful protests outside the venue, again, as long as it does not impede or prevent attendees from reaching the venue (ie. blocking the entrances or walkways).
In my eyes, the key for First Amendment is that it doesn't prevent anyone from speaking their mind or protesting, but it also can't allow those people to prevent others from listening to others. A protester shouting down a speaker to the point that the speaker cannot be heard by the audience is violating that rule. Just like all other rights, you are only entitled to those rights to the extent that you are not infringing on the rights of another.
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Re: Re: Vagueness [was Re: Re: Re: ]
Is your interpretation the only reasonable way to read the North Carolina legislature's direction to the Board of Governors?
Consider some facts related in Mr Justice Douglas' dissent in Grayned v City of Rockford (1972)
If the Board of Governors develops and adopts a policy that just repeats the legislature's language, and no more — then could any reasonable university administrator interpret that language as permitting punishment of students under circumstances similar to those Mr Justice Douglas related in Grayned?
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Re: Re: Re: Vagueness [was Re: Re: Re: ]
Also, saying "There was noise, but most of it was produced by the police" is not necessarily clear. Were the protesters making a lot of noise, but the police were the only ones understandable because they were much louder with speakers, or were the protesters very quiet, and absent the police there would've been minimal noise. The former is them performing their job in an appropriate manner given the high level of noise by the protesters. The latter is potentially the same due to the size of the crowd, but also potentially overkill and unnecessary.
Is my interpretation the only reasonable way to read it? Not likely, but that's why I said **I would interpret**, and not **it means**. Interpretation is a large portion of the job of the judicial branch. Should the policies and legislation be written more clearly? I would argue yes in almost all cases. However, it is difficult to do that most of the time because it requires being far more specific in what cases it applies to, which then removes the judicial latitude to consider all factors. Writing laws explicitly tends to catch more people in the webs, where being more loose potentially allows bad apples to fall through. I would prefer to err on the side of letting a few guilty people go than punishing a few innocent people, especially in cases like these where there is no physical harm done.
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For the record: Ditto.
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A bizarre piece from Techdirt
It's kind of amazing to read Techdirt write a piece claiming that campus free speech issues are a non-issue. Is the author even remotely aware of the Foundation for Individual Rights in Education's database of campus speech suppression (https://www.thefire.org/category/cases/free-speech/")? This piece contains a number of uninformed hand-waves.
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Well, this is the most idiotic techdirt article I've ever read.
You're a liberal, I understand you may not instinctively get the problem, but if you want to write about it and not get laughed at, please understand that relatively uncontroversial speech is getting shut down through violence.
Seriously, stupidest fucking article I have ever read here.
Antifa are fascists.
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Re: Well, this is the most idiotic techdirt article I've ever read.
Any form of conservative speech....not crazy stuff, just simply not left wing had been completely shut down, and basically through violence.
It may seem that way to you, but that's because there are several people out there scouring campuses and curating a list of every story where students interfere with a speaker, in order to stoke your outrage - but nobody is doing the same for all the events and speeches that go off without a hitch.
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Re: Re: Well, this is the most idiotic techdirt article I've ever read.
Is it important that there are things that are not blocked, or that there are things that are?
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Re: Re: Re: Well, this is the most idiotic techdirt article I've ever read.
Yeah, so?
Well, you said "any form of conservative speech" has been "completely shut down". I was just correcting that obvious falsehood.
Is it important that there are things that are not blocked, or that there are things that are?
It's important to retain perspective, talk about facts, and not fly off into hysterical hyperbole.
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Re: Re: Re: Re: Well, this is the most idiotic techdirt article I've ever read.
Nonetheless, a lot of conservative speech, quite a bit of non-controversial, or in some cases still left wing but merely less radical speech, has been completely shut down on some campuses.
I certainly think it's fair to say the degree of censorship has been "shocking". And to dismiss it as no big deal as the author does is assinine.
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a little bit of hyperbole in public debate is not only permissible, but practically required
A little bit perhaps. So far you've offered nothing but.
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Does this apply to all institutions of higher learning in that state or just the public ones?
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As Geigner's article up top makes plain, those quoted words are pulled from Stanley Kurtz, who wrote them at the end of July in a column over at National Review.
It's not quite clear to me whether Kurtz is participating in this discussion thread here at Techdirt. He does provide a contact address at the bottom of the NR article, though.
Perhaps, if you contacted Kurtz and asked him nicely, he might be inclined to read the relevant text from the North Carolina act to you — to explain what he meant by his statement.
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to invite on campus as a speaker. That said, universities should also be able to consider factors such as student safety and the overall legitimacy of
a person’s ideas and opinions before allowing that person on campus to speak. How much would you really fault a university for disinviting, say, an advocate
for the revival of racial segregation?"
[1] No, public universities are state actors for the purpose of the First Amendment, and unless you are willing to concede that the red states could condition public funding on on pro- or antiabortion speech, you are simply hypocritical.
(2) Regarding student safety, listeners hostile reaction to speech is not a viewpoint neutral basis for denial of an invitation.
In fact, such a reasoning is directly contrary to caselaw holding that the government can't constitutionally insulate its censorship by reference to anticipated hostility by members of the public.
(3) The overall legitimacy of a viewpoint is not a constitutional or lawful justification for disinviting a speaker, and your entire point is precisely why such a law is necessary.
There is a long line of cases -- namely the Skokie case (Collin v. Smith) holding that even advocating genocide is constitutionally protected speech.
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Is and ought [was Re:]
Larry Solum: Legal Theory Lexicon 016: Positive and Normative Legal Theory
(Additionally, further, please use the “reply to this” link immediately below any specific comment that you're replying to. That creates the threading.)
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if some student group wanted to make that happen. Reputations still matter, and a university seen as openly friendly to racists will suffer from that reputation."
Damage to reputation is not a legitimate reason for denial of speech rights. But assuming that, a university should be allowed to take into account its reputation when allowing or disallowing speakers, the same principle must apply with equal force to all controversial speakers.
If a university with a large liberal or progressive student body can consider its reputation when inviting a neo-nazi, a conservative university must have the same right when considering whether to allow a Muslim, communist or black power activist.
The bill does not compel universities to invite neo-nazis, it simply mandates equal treatment of all speakers.
You are welcome to argue that the law will be unequally enforced, and if so, such an unequal enforcement will itself be ground for a constitutional challenge, but this law is no more about allowing nazis than the Firzst Amendment is about advocating racism.
Government institutions have very little discretion when allowing or disallowing speech, and rightly so.
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I know you expect me to say “bullshit”, but I actually agree.
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Re: Re: Vagueness [was Re: Re: Re: ]
administrator interpret that language as permitting punishment of students under circumstances similar to those Mr Justice Douglas related in Grayned?"
maybe or maybe not. Note that Justice Douglas partially dissented.
The majority opinion which is controlling held that the ordinance wasn't unconstitutionally vague or overbroad.
Banning shouting down a speaker is likely to be upheld under the long line of cases permitting time, place and manner restrictions on speech.
If the event is a limited public forum, the university can restrict its subject matter and impose restrictions as long as these are viewpoint neutral.
A regulation simply mandating that all participants must not speak unless its their turn, and that they can't shout down the invited speaker -- but may ask questions or comment after the speaker has finished is certainly constitutional.
of course, the university has to administer its implementation of the policy in an evenhanded and viewpoint neutral manner, but simply punishing or even expelling students for not respecting these rules aren't an abridgment of the First Amendment.
This follows from the distinction that the government may criminalize the destruction of a draft card, but may not punish someone for desecration of the flag.
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Yes, as some already have. I wouldn't expect most to say it, but when pressed on details I wouldn't be surprised to find a majority of public universities actually not supporting free expression. FIRE exists for a reason.
<EM>If some tiny college group wants to invite a controversial speaker to campus to speak, where 90% of the campus doesn't want them anywhere near the campus, the administration is simply supposed to keep its hands tied?</EM>
YES. Why would you advocate otherwise?
<EM>Punishing "shout-downs"? That's a pretty bald-faced acknowledgement that this bill will curb the free speech of students in favor of the free speech of invited speakers. In other words, this bill cuts in only one direction: students that are paying to attend school now have less speech rights than guests invited onto the campus.</EM>
Depends on what's meant by shout-downs. If hecklers are inside a venue AND disturbing the ability of others to hear the speaker they've showed up to hear, then they should be removed. If they're outside of the venue (and NOT physically preventing people from attending), they shouldn't be subject to any punishment.
As far as a committee calling out Universities for not actively protecting speech rights of invited speakers--consider times in history where the police turned their backs (or even took an active part) and allowed crowds to commit crimes against the disfavored. For example, the police being complicit in beatings of the Freedom Riders. There are definitely cases recently where Universities have abdicated their responsibility to keep the peace (e.g. Berkeley). I'm not sure what the right thing, if anything, is to do about this, but threatening funding seems to be a go-to way for legislatures to get compliance out of entities they don't directly control...
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It all sounds so reasonable until you actually think about the implications of the law.
It does?
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And some universities refused Ann Coulter? Berkley rioted when Milo (a gay guy who only dates blacks) was supposed to speak?
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Insofar as I read it, it seems to be more akin to "if you protest, protest outside and don't block the door", and *the university is not prohibited from reasonable time, place, and manner restrictions* (e.g. "10% of the university population gets a room that fits 10% of the university population, not a stadium") especially.
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Nevertheless, I think Mr. Geigner has made a bit of a misstep.
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Two-strikes [was Re: Re:]
Without having completely familiarized myself with the legislative history in North Carolina, but merely quickly glancing through that history, it does not appear to me that section 1.9 of the Goldwater Institute's model act made it into editions of the bill considered by the North Carolina House or Senate.
I certainly don't see the model act's section 1.9 in the edition of the bill North Carolina enacted as Session Law 2017-196.
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Re: Two-strikes [was Re: Re:]
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Reports
From the preamble of North Carolina Session Law 2017-196 —
For convenience, hyperlinks to those three reports:
(Hyperlinks via endnotes in Goldwater Institute paper.)
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