Last week, I blogged about how a planned Federalist Society talk at CUNY School of Law by Professor Josh Blackman was continuously interrupted for about eight minutes by protesters who believed that his views on constitutional law were equivalent to white supremacy.  (I recommend you watch the video.)  I wanted to draw sensible, constitutional lines between Blackman’s right to the forum and the protesters’ free speech rights.  Given the need to avoid fuzzy, subjective balancing tests in First Amendment jurisprudence and to ensure clear, robust, free speech liberties that protect us all equally, I argued (as many have) that coordinated efforts to disrupt a designated speaker are not protected speech.

Because disruptions executed with intent to seriously undermine a speaker’s use of a designated forum are unprotected, these types of protests-via-disruption can be punished by their public university.   Questions remain, such as whether the CUNY students must be punished.  Below, I will flesh out some easy answers to the campus heckling issue, and some difficult, open, constitutional and policy questions.  I also want to address some of the excellent critical feedback I received from the original blog post.

 

First, I want to defend the view that coordinated efforts to disrupt speech are not, themselves, protected speech.  This view was manifest in the prosecution, several years ago, of the “Irvine 11” for the continuous disruption of a speech of Israeli ambassador Michael Oren at UC Irvine.  (I also recommend you watch that video.)  I do not believe those students should have been prosecuted, as a matter of prosecutorial discretion and policy, because criminal penalties seemed too strong and perhaps selectively biased.  However, in order to truly preserve free speech for all in a reciprocal way, those who coordinate to effectively disrupt a designated forum cannot be considered to be engaging in speech, but instead disruptive conduct.  The alternative is that groups of people can coordinate to suppress unpopular or objectionable views, a result anathema to the First Amendment.

Protecting these sorts of sustained disruptions would mean that speakers could lose the entirety of their forum, or, as Josh Blackman did, would have to entirely remake their planned remarks to cater to and appease a crowd, intent on undermining the substance of the talk.  Further, audience members who came to hear a particular speaker would lose their rights as well.  Instead, the loudest and angriest would control who gets to speak and what the topic is.  As I have noted, that sort of regime, if applied equally to everyone, would mean no one can ever be secure in his or her right to speak.

[A reminder on the doctrine. If public universities open up student groups as a limited public forum, they must allow groups to invite speakers and reserve rooms for events regardless of viewpoint.]

Howard Wasserman wrote a thoughtful response to my earlier post doubting the constitutional line between coordinated efforts to silence a speaker and individual efforts to do so.  According to Wasserman, speech (in this case, the protests) “should not lose its protection because a lot of people cooperate to engage in it, rather than it being the isolated act of one person.”  This is a fair point.  I do not mean to say that isolated acts of disruption can never convert protest-type speech into conduct. However, because coordinated efforts demonstrate an intent to silence a speaker, and coordinated efforts are more effective at doing so, the coordination should be recognized as contributing to the conduct-like aspects of the disruption.

More challengingly, I want to say that eight minutes of disruption is more than enough to render these coordinated efforts unprotected.  Blackman’s talk was only 70 minutes total; the disruptions were greater than 10% of the designated time, taken up by people whom audience members did not come to hear, and whom the student group who reserved the forum did not invite to speak.  The disruptions ended only when the protesters felt they were not allowed to continue disrupting.  Instead of listen and engage properly, the protesters then left.

Many commenters believe eight minutes to be an acceptable amount of time, especially because the protesters were participating in a dialog with Blackman.  I think it clear that their intent was not to have a dialog.  They disapproved of his presence, and (wrongly) compared him to non-serious provocateurs like Milo Yiannopoulous.  As law students, they should surely recognize that the question of the legality of executive action, on principle, cannot be equivalent to the inquiry of whether the law is good.  The students did not believe in the concept of open dialog between different viewpoints or our First Amendment standards; they expressly articulated that not all views are welcome at their public university.  That is why they attempted to shut down a speech about campus free speech issues.

Plus, this eight minutes would have been prolonged had an administrator not come to admonish the students, telling them they must stop the disruptions.  If the coordinated efforts constituted protected speech at the, say, 3 minute mark, or 4 minute mark, the administrator would have to allow these protesters to continue talking over Blackman until their disruptions became unprotected conduct.

In my view, fairly soon after coordinated efforts to silence a speaker are observed, they can and should be halted by a public university.  I also believe, for the sake of ensuring that the university protects the speaker’s First Amendment rights and in order to model the appropriate way to engage in civil, legal discourse, the university should punish these disruptions with some sort of (fairly light, for first infractions) disciplinary action.

However, the question of whether a public university must punish the disrupters, to safeguard the speaker’s constitutional rights, is a harder question.  Much of the problem is that universities may selectively punish.  A state actor’s policies that allow for too much discretion to punish viewpoints it dislikes are generally deemed unconstitutional.  (See Forsyth, on parade permit fees.)  Without reasonable standards to guide administrators in deciding when to punish disrupters, the university has too much discretion to allow a heckler’s veto for Blackman but punish the suppression of speech by students for a speaker invited by, for example, the American Constitution Society.  This selective enforcement works further, and even more obvious, First Amendment harm.

Selective enforcement is perhaps manifest in CUNY Law’s non-application of its policy on disruptions – which prohibits disruptions of educational programming.  I can also believe that CUNY Law would not punish any disrupters, and hopefully time will not tell either way.  Part of the problem, of course, is that these policies are written so vaguely that the university has what may amount to an unconstitutional amount of discretion to enforce the policy only to benefit favored viewpoints.  Disruptions might be permitted only for speakers with whom a public institution disagrees.  Even this possibility raises constitutional concerns under Forsyth.

Assuming a university does not selectively enforce its policy on disruption, I have some sympathy for the argument that some amount of “performative” engagement between protesters and speakers should be allowed.  Jeremy Waldron has an interesting article with some nice background on how heckling was a historically “common and accepted feature of political meetings.”  Hecklers force speakers to address issues they would rather not address.  Of note, Waldron does not address his paper to the American First Amendment regime, and he avowedly does not believe in American’s strong, viewpoint-neutral free speech protections, which insulate “hate speech” — not truly a category of speech in America — from censorship.

Waldron also does not believe that those heckling campus speakers are “intolerant” of the speakers’ ideas.  To that, I simply say, watch the videos.

If you do buy into the system we have, heckling of the sort that is happening on academic campuses is very different than Waldron’s vision for political meetings.  Academic discourse is also very different than political discourse.  A small amount of heckling to push a speaker to contend with challenging issues is, I agree with Waldron, good for debate.  Eight minutes of coordinated temper tantrums when a student group hosts a speaker with a particular view of constitutional jurisprudence is not.

Supreme Court caselaw is fairly scant on what must be done about corrosive heckling.  In Feiner v. New York, the Supreme Court held that, “[w]e are well aware that the ordinary murmurings and objections of a hostile audience cannot be allowed to silence a speaker, and are also mindful of the possible danger of giving overzealous police officials complete discretion to break up otherwise lawful public meetings.”  Feiner does not establish an affirmative obligation to silence the crowd, though, just a position that the police may not arrest a speaker to stifle his protected speech, which may be provoking a crowd.

A series of cases after Feiner provides structure for the argument that the government has an affirmative obligation to safeguard speakers so that they can deliver their messages.  (I have written an article about the heckler’s veto and university security fees for invited speakers.)  If that is the case, the university must (not just can) prevent disruptions that work to silence a speaker.  How much disruption is necessary before a university must intervene is, again, a hard question, but eight full minutes of coordinated shouting back at a speaker does not seem like any sort of true dialog to me.

Not all speech must be polished and dispassionate (although that is the best way to engage, persuade, and learn, in my view).  Students are free to provoke, heckle, and yell in many fora for which their speech has been designated – such as their own Twitter feeds, for example.  The First Amendment protects “Fuck the draft” as much as “A rose by any other name would smell as sweet.”  What it does not protect is someone overtaking a forum designated for a particular speaker in order to corrode the speech happening in that forum.  Any other rule leads down a pretty direct path to viewpoint discrimination and orchestrated shouting, which is the louder equivalent of silence.