Free speech can be complicated, as college students from Virginia to California and Utah are learning this fall.
Events ranging from a white nationalists’ rally in Charlottesville, home to the University of Virginia, to scheduled appearances of conservative commentator Ben Shapiro at UC Berkeley and the University of Utah have prompted cheers and jeers and many questions about the parameters of the First Amendment.
For those who find the speech at the center of these events “obscene” and abhorrent, the fact that universities allow it is confusing and frustrating. The bottom line: Accommodating such speech is a role universities are specifically designed to fill, even when that speech is at odds with values the campus embraces.
“Universities are classic free speech zones,” said Michele Ballantyne, associate general counsel for the U. “A campus is supposed to be a place where people can question, they can formulate and express their thoughts. We believe that as students examine and discuss those thoughts with others of differing views, any flaws in those thoughts will be illuminated.”
Shapiro will speak at UC Berkeley on Sept. 14 on “Say No to Campus Thuggery.” He is scheduled to visit the U campus on Sept. 27.
The U student group Young Americans for Freedom — not the university itself — is sponsoring Shapiro’s speech, which is described as taking on “leftist myths of white privilege, trigger warnings, microaggressions and diversity.”
Shapiro is currently the editor-in-chief of The Daily Wire. He previously worked for TruthRevolt and Breitbart News and has authored seven books, including “Brainwashed: How Universities Indoctrinate America’s Youth.”
Case law involving the First Amendment to the U.S. Constitution, which addresses freedom of speech, has clearly defined the types of speech that are not protected: obscenity; fighting words; defamation; child pornography; perjury; blackmail; incitement to imminent lawless action; true threats; and solicitations to commit crimes.
Hate speech, for example, is not prohibited.
“Hate speech is protected by the First Amendment, even though we find it very offensive and deeply disagree with it,” Ballantyne said. “Along with hate speech, there have been many unpopular ideas and the thinking behind the First Amendment is that we should challenge those ideas, not prevent access to them. If those ideas don’t stand up to scrutiny and more public discourse, then, ultimately, they should not prevail. But we shouldn’t have the government decide what we can and cannot hear. The First Amendment empowers people to hear all ideas, let the best ideas flourish, and to overcome destructive ideas.”
As an institution, “we value the dialogue,” said Robert Payne, also an associate general counsel for the U. “It’s part of what we do as a higher education institution. We talk about difficult things.”
Speech can only be prohibited when it squarely falls within one of the nine categories illuminated by case law, he added. With respect to threats of violence, case law focuses on the intent of the speaker rather than the response from the audience.
Payne said in its decision in NAACP v. Claiborne Hardware Co., the Supreme Court observed: “An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”
“The law examines the speech of the speaker to determine whether it is constitutionally prohibited,” Payne said. “The question is not whether somebody will hate the speech so much that they are likely to respond with violence. Rather, it is whether the speaker is promoting imminent lawless action.”
Shapiro is a provocative speaker who has been slammed by both the left and the right for his views. He advocates small government, free markets, religious freedom and personal responsibility, according to his website; he opposed President Trump, describing himself as “#NeverTrump.” Shapiro has derided academia for liberalism, particularly endorsement of such concepts as microaggression and safe spaces. On a personal note, Shapiro, an Orthodox Jew, has been the target of anti-Semitism.
A contingent of U representatives is traveling to Berkeley this week to observe how that campus manages Shapiro’s appearance.
“Our job as an institution is to do everything we can to ensure a civil and safe atmosphere for the exchange of ideas,” Ballantyne said.
Toward that end, universities can adopt appropriate time, place and manner restrictions aimed at fostering and creating an environment for safe speech, Payne said. The U has outlined that right in the university’s speech policy.
“The university is a place where we should be able to discuss controversial ideas in a community where we have thinking people who can help guide those discussions and help educate students about how to think through and take constructive action in response to something that may be offensive,” Ballantyne said. “Do we want a society where we just shut down anything that could be offensive? Or do we want to talk things through and hopefully help the other party recognize that there may be real problems with their position.”
People may try to be disrupt a speech that they find objectionable. if they do that in the hall where the speech takes place, we may need to remove the disruptive individuals so that the speech can carry on, Ballantyne said.
“We value the First Amendment and we think the answer to offensive speech is more speech, more discussion — and helping students to learn how to think through and deal with things that might be offensive in what we hope is a safe environment so they are more prepared to deal with those things when they move on,” Ballantyne said. “We think free speech is a good thing, even when we really disagree with it.”
- “It is precisely in universities that the widest possible range of influential and controversial views should be given a platform — and then met with civil, robust, well-informed criticism.”
- “Universities aspire to create an environment in which all competing claims and controversial opinions can be heard, and no one feels threatened or intimidated.”
- “A university is the last place on earth where the individual, subjective ‘I’m offended’ veto, the assassin’s veto or the heckler’s veto should ever be allowed to prevail.”
- “To find out what other people think, where they agree and where they disagree, is in itself to generate knowledge.”