Using Speech to Disrupt Speech – Drawing Sensible, Constitutional Lines

When constitutional law scholar and prolific blogger Josh Blackman visited CUNY School of Law this week, he was met with a chorus of “shame” from protesters.  The protesters, armed with signs labeling Blackman as a white supremacist and claiming that his legal analysis was “lazy and wrong,” talked over him in a coordinated way from the front of the room.  The protesters seemed to outnumber audience members, perhaps because prospective audience members were concerned about the stigmatizing effects of attending, given that the protesters also turned their displeasure on audience members.  When the protesters finally let Blackman speak, after admonition from an administrator, he began to engage an audience member about whether legal objectivity is a myth.  The existence of legal objectivity, although not the subject of the talk, was an important meta question, given that the protesters likely do not believe in the full breadth of our constitutional guarantee of freedom of speech, which applies fairly neutrally to everyone, despite the offensiveness of the viewpoint.

The irony is, of course, that these protesters also benefit from our free speech regime, which protects their right to protest, even when their underlying sentiment, as one expressed, is “Fuck the law.”  The way we have drawn lines to resolve the tension between the right to speech and the right to protest speech is the most sensible approach, except for those truly opposed to rule of law and process-based democracies.  Given that law schools have an intellectual and professional mission to educate students in civil, civic discourse and to use logic and argumentation in a restrained, adversarial way, the fact that some CUNY Law students oppose the lines we have drawn is deeply concerning.  Below, I will outline where the right to protest stops being protected speech and starts becoming conduct, and why this line benefits us all.


Josh Blackman was invited to speak, on the topic of campus speech, by the Federalist Society.  At a public law school like CUNY Law, a university cannot discriminate on the basis of viewpoint against speakers invited by students.  This means that Republican and Democratic groups, pro-choice and pro-life groups, must have equal access to student activities fees and the ability to invite speakers of their choice.  This also means that the university is not giving Blackman a “platform.”  The university is simply honoring its constitutional obligation, once it has opened a forum like student groups, to treat the groups equally regardless of viewpoint.

Of course, the students are allowed to protest Blackman’s presence.  The view of some of the students – which seems to be based on a limited tolerance for certain areas of political debate – is that the Federalist Society is inherently racist.  Some others have the view that free speech is an unfair right, as it shields racist speech that dehumanizes students.  Those students are not wrong.  Free speech shields many different types of offensive speech; the First Amendment wouldn’t need to exist to protect speech we all like, because no one would try to censor that speech.  Free speech also safeguards their right to create signs reducing Blackman’s constitutional analysis to white supremacy.   But what cannot and does not exist in any regime that supports pluralism, democratic participation, and intellectual engagement is a free speech right to engage in coordinated efforts to silence a speaker.

If these students had earned an invitation from the Federalist Society to speak, audience members, including Josh Blackman if he were to attend, could not coordinate with others to disrupt the speech.  This is a reciprocal right, and, in that sense, it is neutral.  The right may not be neutral in outcome because people like Josh Blackman, who have earned the right to an invitation, are given preferential treatment to the forum.  However, if these law students prove they have something novel and articulate to say, perhaps they someday can receive an invitation where their right to speak will be respected.

An errant, “hey, you’re wrong,” is likely protected speech, but not an effective, premeditated campaign to undermine a forum designated for a particular speaker.   This is the only approach that affords all of us equal rights to speak, listen, and engage.  This is also the best way.  As one audience member noted, he does not agree with Blackman, but he would like to engage with Blackman’s articles, the actual substance of his work.   Substantive, informed, respectful discussions about issues that matter, especially controversial issues in which people have a significant emotional investment, are vital to the legitimacy of legal education.

To become a lawyer is to learn that civil, open-minded, orderly discourse is the only way to truly persuade – everything else is coercion and violence.  [Edit- this is not to say that coercion and violence are not embedded into the law- the law is definitionally coercive – but that is not equivalent to true persuasion.]  To become a lawyer is to recognize that although the system is unfair, and must constantly evolve, we must respect the perspectives of our adversaries, who generally have something important and enriching to offer.  A legal education that renders students above this process, yet desirous of its benefits, had failed to achieve its mission – and has created unprincipled, dogmatic thinkers.  I hope, and strive, every day to teach my own students how to disagree passionately and respectfully, while remaining open to intellectual evolution.  Josh Blackman modeled these virtues at CUNY Law School.  We professors must be the adults in the room.  The system is not perfect, but adhering to the sensible fault lines of free speech is the way we change it.

2 thoughts on “Using Speech to Disrupt Speech – Drawing Sensible, Constitutional Lines”

  1. Some questions about what you regard to be the boundaries of coordinated, disruptive speech:

    As far as venue, do you see a distinction between a ticketed and non-ticketed event? As in, is there a higher threshold for punishable public participation in one or the other?

    For example, suppose there was a speaking event where any student or member of the public was allowed in to observe at any time, and a long series of students entered independently, listened for a few seconds, and then loudly denounced the speaker before leaving of their own volition. Do you think each of the naysayers should be punished?

    Expanding from that example, suppose that the students protesting Josh Blackman never entered the lecture hall, but instead remained outside of it and chanted so loudly that it was impossible for the speaking event to continue.

    Should the student’s behavior be punished according to your rule?

    Further, how do you propose that premeditation should be proven?

    Must it be shown that the students individually coordinated with each other?

    What if there were a trending social-media post which had generally encouraged students to speak out against a speaker in the weeks before an event? Then, at that event, many students independently chose to disrupt the event having been influenced by the popular social-media post, but having never actually coordinated with each other.

    Should they be punished?

    Finally, how do you propose to handle speech which is disruptive in effect, but not clearly an act of protest in itself.

    For example, what if a group of students say nothing throughout a speaker’s event, but do constantly get up to go to the bathroom before returning to sit down only to get up again and so on.

    Or, what if a number of audience members continue to converse at a normal volume among themselves even after the speakers has begun their presentation.

    Suppose that they had even premeditated this act to show their disregard for the speakers’ ideas.

    Are you proposing that their rudeness should be punished by the government as impermissible expression?

    What if they wear provocative clothing like shirts which read “the person sitting next to me is a racist,” and then quietly sit down next to other audience members while other students take photos of the pairings? And, suppose that they had done so with the intent of enticing the other audience members to start arguments. Then, having succeeded, they only ever responded to other audience members and did not initiate conversation themselves. The effect being total disruption of the event.

    Should those students be punished for a disruptive protest even if they only ever spoke in response to others?

    I ask all these questions from the position that fostering useful debate is a social problem which cannot be solved through government intervention.


    1. These questions are all challenging and useful. I agree that fostering debate usually means the gvt must stay out, but there is a role for ensuring that regardless of viewpoint, students can host speakers.


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