The Crisis of Free Speech on Campus: Not Fake News

July 27, 2017 | Insights

By Nancy W. Hamilton

A recent column in the Detroit News, by John Patrick Leary, an Associate Professor of English at Wayne State University, advanced the proposition that concern over the recent protests on campus over free speech is a “manufactured crisis.”

According to Professor Leary, concerns expressed by Senator Chuck Grassley, who chaired the recent Senate Judiciary Committee hearing held June 20, 2017, entitled “Free Speech 101: The Assault on the First Amendment on College Campuses,” and others, that disruptive demonstrations are a pervasive crisis of free speech on campus are little more than cover for conservatives targeting left wing student activists, and government regulation of colleges’ and universities’ intellectual and academic lives. Leary is quite simply wrong. Politics aside, the dangers of the growing intolerance of free speech on campus and censorship are real and cannot be ignored. They are not “manufactured.” This is not a matter of merely having a different intellectual point of view. The campus protests are increasingly threatening not only to free speech but to the physical safety of the speakers and students alike.

Events at University of California, Berkeley, Middlebury College in Vermont, and Auburn University in Alabama this past spring are still fresh. It is not in dispute that students at these institutions of higher learning had every right to loudly and even rudely protest conservative lecturers such as Milo Yiannopoulos (former editor), Charles Murray (co-author of The Bell Curve), and Richard Spencer (white supremacist). However, they do not have the right to deny others access to speech no matter how offensive or to participate in physical violence, which occurred at both Berkeley and Middlebury, a fact Leary ignores. CNN reported that in February, U. C. Berkeley cancelled the Yiannopolous event and removed him from campus reportedly “amid the violence and destruction of property and out of concern of public safety,” that resulted in over $100,000 in damages to the campus and at least six students being injured, including two who were attacked while conducting an interview.

In March, at Middlebury College, a talk by another controversial speaker, Charles Murray, also resulted in violent altercations between student protesters and Murray and a faculty member, Professor Alison Stanger. Student protesters said Mr. Murray’s book espoused a racist view. Approximately 100-150 protesters shouted down Mr. Murray and when he moved to another room to deliver his talk, protesters pulled fire alarms. As he left the building, he and Ms. Stanger were physically attacked by student protesters who also jumped on the hood of the car, rocked it back and forth, and pounded on the hood. Ms. Stanger was hospitalized and suffered a concussion.

In April, Auburn University cancelled a speech by white nationalist Richard Spencer, after Auburn police assessed the possibility of civil unrest and criminal activity during the event, “would pose a real threat to public safety.”  But U.S. District Judge W. Keith Watkins, Middle District of Alabama, granted Mr. Spencer’s request for an injunction, stating, “Discrimination on the basis of message content cannot be tolerated under the First Amendment.” The speech went on. Although there were brief scuffles and three arrests for disorderly conduct, according to CNN, a crowd of several hundred students and protesters reportedly chased Spencer and his supporters off campus and through downtown. The Washington Post reported the Auburn police chief said he was “pretty happy,” with the way things went, which he “attribute[d] to the peaceful nature of the students,” noting also that “it could have been a lot worse.”

And, this is not a crisis limited to the United States. In Canada, universities are charging tens of thousands of dollars in security fees in advance of events, the more controversial, the higher the fees. At the University of Alberta, a student who tried to schedule anti-abortion information display had to cancel the event because the university required a $17,500 security fee. In March, self-professed anti-hate speech protesters used air horns and megaphones to drown out a speech by University of Toronto Professor Jordan Peterson for his views on free speech and his refusal to recognize a person’s right to be addressed using genderless pronouns like “they” instead of “he” or she.” At Ryerson University, protesters blew rape whistles on and off for 90 minutes straight and unleashed loud wailing sirens during a speech by speaker Ezra Levant, who was speaking against a federal bill outlawing discrimination based on gender identity and expression. The organizers had previously been forced to change venues over security threats.

Call it mob censorship or the modern day “heckler’s veto” on steroids, but the security threats posed by campus protests of free speech are not manufactured. They are a real and present danger to our civilized society. I don’t have a solution but my suggestion is that we need to (1) recognize the problem; and (2) set about finding a solution through conversation with each other.

I can offer one hopeful experience where, as a trustee at Skidmore College in New York, I was involved. Our school invited Cynthia Carroll, the first female CEO in the mining industry, to speak at commencement.  A group of students announced their opposition to this speaker and protests were organized. In advance of graduation the College organized a video conference where the students could speak with Ms. Carroll to share their concerns and obtain her response. The dialogue was respectful and thoughtful on both sides even though differences of opinion (largely over the issues of mining safety and worker conditions) were patent.

At graduation five students stood and turned their backs on Ms. Carroll when she spoke. It was a protest that did not disrupt the proceedings or the rights of the speaker or her audience but was born of the previous dialogue. At the same time it validated the rights of these students to protest. The way to combat speech one disagrees with is not to silence it but rather to do as we did at Skidmore and encourage more speech.

Nancy Hamilton Meet Nancy

Houston partner Nancy W. Hamilton has appeared in federal and state courts for clients such as CNN, Oprah Winfrey, and CBS, Inc. Her practice experience involves First Amendment, intellectual property, complex commercial, and media litigation. Nancy is a frequent writer and lecturer on trial tactics and media law, including What to do When the Media Calls and Building Rapport in the Courthouse for the Texas State Bar and Trial Techniques for the Media Law Resource Center Annual Conferences in 2006 and 2008. She has also appeared on PBS Houston’s KUHT-TV program The Connection on videotaping jury deliberations.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.