The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Readers may have noticed that my blogging has been light over the past few weeks, because I've been slammed with various projects. But I thought I'd mention an incident here at UCLA School of Law, which several people have asked me about; please note, though, that I was personally involved, so my perspective may be less objective than usual.
On Feb. 1, the Ayn Rand Institute and the UCLA School of Law chapter of the Federalist Society put on a program at the law school, "Is Free Speech Under Attack?" The program featured Flemming Rose, editor of the Danish Jyllands-Posten newspaper involved in the original publication of the Danish Muhammad cartoons, and author of "The Tyranny of Silence: How One Cartoon Ignited a Global Debate on the Future of Free Speech"; Steve Simpson, the Institute's legal director; and political commentator Dave Rubin. (The organizers and the law school both briefly consulted me about the event, but I wasn't substantially involved in the planning.) The event was quite successful—I'm told that about 140 students attended—and generally went off well. There was no disruption of the event itself (which ought to go without saying, but unfortunately doesn't always, these days).
Before the event, though, the Institute had set up a book display on a table in the hallway and offered the books for sale. There were four books, including "Failing to Confront Islamic Totalitarianism: From George W. Bush to Barack Obama and Beyond," by the Institute's Onkar Ghate and Elan Journo:
Some students disapproved of the book and started arguing with the Institute people. And then a law school administrator demanded that the Institute remove the book, apparently on the grounds that it was "inflammatory."
That, I think, was clearly wrong, and indeed a violation of the First Amendment. Public universities can't bar groups—student groups or others—from displaying books on the grounds that the viewpoints are "inflammatory."
Universities can impose content-neutral rules, and likely even content-based but viewpoint-neutral rules, on what goes on in their hallways. They could, for instance, ban all sales of books. They could ban such sales by outside groups. They could require permission before any sales of anything take place, so long as the permission is granted or denied without regard to the viewpoint expressed by the materials being sold—indeed, it appears that UCLA has such a policy. But they can't discriminate based on the book's supposedly offensive viewpoint, even if the hallway is viewed as a so-called "nonpublic forum." (See Rosenberger v. Rector (1995).) Moreover, even if they apply such no-sales rules in a content-neutral way, that would only justify telling the group not to sell the book, rather than telling the group to stop displaying the book. As I said, this was a clear error on the administrator's part; I'm sorry that it happened at my own law school.
Fortunately, I'm glad to say that the dean has written to the Ayn Rand Institute "to extend my [i.e., the Dean's] apologies" and acknowledged that the administrator's action was "not in keeping with UCLA Law's—or my—vigorous commitment to support free speech and respectful debate." "It also failed to adhere to our commitment that university policies be applied in a content-neutral manner." And the dean stressed that the school was taking steps "to prevent such occurrences," by beefing up training and procedures. I know the dean pretty well, and I think she's quite sincere about this.
Here's my role in the situation: The event was on Wednesday, Feb. 1, and late Thursday evening, a student emailed me to let me know about the incident. I was very troubled by this and corresponded with the Ayn Rand Institute people to get more facts; late Friday evening, I emailed the law school's vice-dean about this. (I chose the vice-dean partly because he is the faculty administrator who seemed likely to have some authority over this, and partly because he's a good friend of mine and I trust his good faith and judgment.) The vice-dean was traveling but said he'd look into this, which is what he did during the week.
He kept in touch with me during the week, and the following Saturday (the 11th) in the morning, he got back to me to say that there was indeed a problem and that the school would be sending the event organizers an apology and making clear to people at the school that this shouldn't happen. (For whatever it's worth, this message was sent to me several hours before Elan Journo's post about the incident went up, and to my knowledge it wasn't prompted by any existing or impending news coverage.) The letter was sent to the Institute that Wednesday morning (the 15th). The Institute in turn promptly responded with a gracious acknowledgment, which also noted that "[a]part from the incident the event went smoothly and was successful," with the audience "inside the room [being] lively, engaged and respectful of the speakers"; and the Institute praised the Federalist Society student chapter for its work promoting the event (which particularly pleased me, since I'm the chapter's adviser).
So there's bad news, and there's good news. The bad news is that an administrator demanded that the book be removed, something that shouldn't happen at any university, and especially a public one. The good news is that, when higher-ups at the school learned about this and investigated the facts, they acknowledged the error, apologized and said they would take steps to stop this from happening in the future—and, again, my sense is that they are sincere about this. Again, it's unfortunate that such intervention from the higher-ups was needed in the first place. But it's good to see that errors can get corrected (and with a minimum of internal political drama).