A guest post by Professor Sheldon Nahmod, University Distinguished Professor, IIT Chicago-Kent College of Law.
I begin with two fundamental propositions. First, political protests and a free press are the lifeblood of American democracy. Second, the primary purposes of universities are to develop critical intellectual faculties and to advance knowledge: there should be no intellectual “safe spaces” at a university. These two propositions are tied to the self-government and marketplace of ideas functions of the First Amendment.
First Amendment basics
Here are some First Amendment basics. For one thing, when government regulates, it must ordinarily be neutral with respect to the content and, especially, the viewpoint of speech. For another, the First Amendment is not an absolute. Indeed, there are no absolute individual constitutional rights. Further, there are often costs imposed on innocent people, including taxpayers, by the First Amendment. In addition, the First Amendment technically applies only to government regulation; it protects private individuals from the state.
Finally, First Amendment principles, as articulated by the Supreme Court, do not exclusively reflect the exercise of political power, as some assert. These principles have worked well as a general matter to protect diverse viewpoints, and have taken account of political (and economic) inequality to protect the “little guy” and traditional media of communication such as leafleting, demonstrations and the like.
Protests on campus: an all-too-familiar fact pattern
Suppose a controversial and deliberately provocative speaker is invited by students to speak at a facility used for university-wide events. Unless the facility is ordinarily open to non-university events, the invited speaker has no First Amendment right of access to the facility. However, the students who invited him or her have a First Amendment right receive information and hear the speaker’s ideas. (Supreme Court decisions such as Lamont v. Postmaster General (1965), Red Lion (1969), and Virginia State Bd. of Pharmacy (1976) all speak of such a right in readers, listeners and viewers in certain circumstances.)
What are the constraints on the speaker? He or she may not engage in speech directed at inciting unlawful conduct, where the speech is likely to lead to such conduct. Such speech is unprotected by the First Amendment, as are true threats and “fighting words,” although the last has been limited to face-to-face confrontations.
Significantly, the university has an affirmative First Amendment duty to use reasonable means to physically protect the speaker from a hostile audience (Justice Hugo Black’s famous dissent in Feiner v. New York (1951)). That is, the university must try to control the audience before shutting down the speaker for his or her protection.
However, those protesting the speaker have First Amendment rights of their own: what are their limits? The protesters can make their views known but they cannot physically disrupt the speaker. So they may stand silently during the talk, or with their backs to the speaker, and they may even hold placards in opposition. But preventing the speaker from speaking through continued heckling, or by throwing things or through other violent conduct, is not protected by the First Amendment and can be punished either by discipline or criminal sanctions if they are students, or by criminal sanctions if they are outsiders who are not students. Such conduct is neither protected by the First Amendment nor consistent with the primary purposes of universities.
University officials’ responses to disruption
Of course, it does not follow that universities in this situation will discipline their students or that law enforcement will proceed with criminal prosecutions. University officials often want to avoid or at least minimize controversy. They also have various constituencies: students, alumni, faculty, public opinion and, if public universities, legislatures. And in fairness, it is often difficult in the heat of things to know who the disruptors are and whether they are students or outsiders.
Still, when thinking about university administrators confronting these events, I am reminded of something that Justice Felix Frankfurter wrote long ago about legislators: “One must not expect uncommon courage in legislators.” With respect, it is fair to say the same thing about most university administrators who deal with these situations.
Still, university officials should keep this language from the Supreme Court’s 1957 Sweezy decision in mind:
The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. … Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.
This post is based on Professor Nahmod’s presentation at a symposium on Free Speech and Campus Disruption held January 25, 2018, at Northwestern Law School. The symposium was co-sponsored by the Academic Engagement Network. It was first posted on Nahmod Law.