On Friday, I wrote a tweet that went viral. The tweet engendered important, interesting debates about the rights of speakers at university events versus the rights of protesters to express opposition to the event. People with varying views shared helpful facts and opinions on the issue. The tweet also engendered responses on many sides from people who do not truly understand the law and certainly misunderstood the tweet. This blog will discuss what the tweet said and will explain what the law is surrounding disruption of events on university campuses. This blog will also consider what can be done about Twitter’s good and bad effects on public discourse.
At Yale Law School, two lawyers involved on the same side of a First Amendment Supreme Court case were hosted by a student organization. The lawyers, from the progressive American Humanist Organization and the conservative Alliance Defending Freedom, came to discuss how liberals and conservatives can unify around free speech, a civil liberty that protects people across the political spectrum. There are varying reports about how disruptive the event was and there is video footage you can watch. In this video footage, some of those disrupting the event, who wished to voice their opposition to ADF’s various litigating positions, claim that they are exercising their own free speech rights to disrupt the event.
I do not agree with many of the litigating positions of ADF (although there are some free speech positions of the organization that I believe are correct). I am a law professor who cares very deeply about the rights of the LGBTQ+ community. As a very recent law graduate, I wrote a letter to the editor in The Washington Post, after Prop 8 passed in California, about the importance of marriage equality, long before Obergefell. I also, as a scholar and a human being, have a firm commitment to a principled First Amendment doctrine and free speech culture. I believe academic events at a law school where skilled litigators arguing before the Supreme Court explain their positions are essential to the learning process and open discussion. Academic and legal norms should ensure that these events can proceed.
I wrote a tweet which said:
“Shouting down a speaker at a designated event isn’t exercising “free speech” in the same way that punching someone whose opinions you dislike isn’t free speech. It is instead a coercive method to stifle discussion among people exercising their rights.”
Much to my surprise, the tweet went viral. Important discussions swirled around the right to protest. I was really pleased to see well-articulated positions on many sides of the issue. These are necessary conversations where a variety of views should be represented. But there was also massive anger and lecturing directed at people taking various positions. This anger may have been projected based on people’s anger at ADF, but much of it seemed to be borne of misunderstanding, both of the tweet and of the law.
To explain the tweet, I am not suggesting that any single protester can violate the First Amendment. Individuals cannot violate others’ First Amendment rights because the First Amendment can be violated only by the government, via legislative action, executive action, or through the judiciary via, say, defamation lawsuits. (This is called the “state action doctrine.”). What I was suggesting is that shouting down a speaker is not a First Amendment right itself, as some protesters seemed to claim. Uncoordinated disruptions or protesting outside of a venue is protected by the First Amendment in many instances. Concerted efforts to disrupt a speaker at an event designed for that speaker, however, are not protected speech, meaning those disruptions can be punished by the government. Courts have held that these efforts suppress speech. Concerted efforts to shut down a speaker have led to arrests and prosecutions. In general, protest is protected by the First Amendment against government punishment, but concerted efforts to shout down a speaker (if that is what happened, there are varying accounts) are not protected and are subject to punishment. There is no forum where speech can circulate freely if the loudest voices can simply shut that speech down. That type of coercive effort to engage in overriding speech, instead of following the rules of the forum and debating speech (or using your own platform to express your views, where other people are not permitted to shout you down), is not protected speech.
The speakers at the event were exercising protected First Amendment rights. They had reserved a room based on Yale Law School’s student organization policies and were engaging in protected expression, an academic discussion. So, concerted efforts to disrupt that speech would be blocking people from engaging in protected expression (although these disruptions clearly do not actually violate the First Amendment). Yale, a private institution, does have a policy about disrupting speakers. The protesters, perhaps trying to follow the policy, left after the initial disruptions, although according to some reports they made it difficult for the audience to hear the speakers throughout the event.
Again, there are varying views about how disruptive these protesters were. Studies have shown that the more you disagree with a protest, the more likely you are to believe the protest was harmful, and vice versa. My point was simply that if the speech was purposely intended to disrupt an event from happening or to significantly derail the event, and if it was sufficiently disruptive, it is not free speech. It is not protected by the First Amendment. It is instead unprotected as regulable conduct, the same way punching someone may be expressive, but it is not expression. It is instead coercion, designed to prevent others from speaking.
The line between when protected protest becomes criminalizable disruption is drawn by the courts, but there are factors courts look to, such as how disruptive the event was, how premeditated the disruption was, how coordinated the disruption was, etc. Also, the law hasn’t been settled by the Supreme Court in this area, although we do know that the government is not entitled to remove speakers simply because angry hecklers are threatening the speaker. Indeed, the government must protect that speaker in order to ensure that those with the most agitated responses to speech do not chill the free exercise of expression.
In retrospect, I should have been even clearer about what I meant and the context of my tweet, especially on an issue this politically charged. In a second tweet, I did note that there are disputed accounts from reputable sources of how disruptive the protests were. But the impulse of many on Twitter to react angrily, prior to understanding, is damaging to productive discussions. Experts, especially women, who wish to express positions about topics with any sort of sensitivity are often treated to angry lectures by people who are far less informed or who do not wish to engage in true reflection on a topic. Jews who defend robust First Amendment rights are lectured by people with no familial connection to the Holocaust about the dangers of Nazism. The cost of having any sort of platform on Twitter appears to be a lot of misdirected anger, which is fine in a way. Exercising one’s right to speech should carry consequences. But these consequences, on Twitter, are highly corrosive to actual dialog and may do more harm than good.
In our fast-paced speech environment, a critical number of people will not take the time or thought to read a tweet carefully or reflect upon it. Some require little knowledge on a subject before they feel entitled to spread misinformation about the law. Proponents of the First Amendment are attacked by conservatives as too liberal and are attacked by liberals as too conservative. There is a real danger in assuming someone’s views based on the fact that they are willing to advocate for genuine free speech protections.
All of this is to say that as experts are increasingly disenchanted with Twitter, because the character limit robs tweets of nuance and because people react before deeply thinking about a topic, the most inflammatory tweets by those with the shallowest views have the most impact. This is a disturbing facet of public discourse, perhaps far more disturbing than “cancel culture.” This react first, understand/reflect later, culture is part of the same problem that leads students to disrupt important, productive academic events before even hearing anyone’s position. I wish there were a way to infuse more complexity and accuracy into public discourse. If anyone has thoughts on this, please do share.