Sen. Feinstein: Protecting College Free Speech from Violent Protests Is Too Much of a Burden

Also, she thinks the Kent State shootings are an argument for censorship.


Sen. Feinstein
Michael Reynolds/EPA/Newscom

Gosh, protecting controversial free speech from violent protests is expensive. Wouldn't it be easier for colleges to just not let any of that stuff happen? Who wants another Kent State?

That is, with no exaggeration, the attitude expressed by Sen. Dianne Feinstein (D-Calif.) at a Senate hearing this week on free speech on college campuses.

The hearing came just a day after the Supreme Court ruled unanimously that the First Amendment is so important to American culture that the federal government cannot simply reject trademarks on the basis of offensiveness. Feinstein, by contrast, expressed bafflement at the argument that universities shouldn't succumb to the heckler's veto and to the idea that publicly funded colleges should have to host invited speakers "no matter how radical, offensive, biased, prejudiced, fascist the program is."

There's a reason Feinstein appears on Reason's list of "enemies of freedom."

Ultimately, Feinstein's objection to protecting controversial speech is that of the bureaucrat disguised as the concerned nanny. When people intent on violence show up at protests, other people can get hurt. But colleges have limited resources, she argues—so why should campus police be expected to be able handle protests if they get seriously out of hand?

"You don't think we learned a lesson from Kent State way back when?" she asked at one point, a fascinating reply that illustrates so much about her mind-set. Feinstein's argument seems to be that the killing of four college students by members of the National Guard would have been prevented if the government hadn't allowed the protests in the first place.

Fortunately, lovers of liberty were well-represented on the panel by UCLA law professor Eugene Volokh, who patiently explained that, yes, publicly funded colleges are expected to make sure the civil liberties of the students on their campus are protected appropriately by law enforcement. "One important job of the government is to prevent violence, and to prevent violence without suppressing free speech," he said in response.

There is an odd mind-set out there—one not confined to any particular ideology—that thinks it's some sort of distraction for law enforcement officials to spend their time protecting protesters from violence or standing along parade routes to make sure people come to no harm. These people have their priorities backwards. Protecting people who are expressing their First Amendment rights is what the police are for. The distractions are arresting people for drugs and citing people for not wearing seatbelts.

Similarly, people like Feinstein complain about the costs of protecting liberty as though colleges haven't been undergoing a dramatic increase in administrative bloat. The answer isn't more money from the government. The answer is better spending priorities.

Over at Hot Air, John Sexton says he's surprised to see Feinstein support submission to the heckler's veto. He shouldn't be. Feinstein is actively pro-censorship toward anything she perceives as potentially contributing to violence, including imaginary guns in video games.

Ken "Popehat" White, who recently wrote an excellent explainer for the Los Angeles Times detailing how and why "hate speech" is protected speech, took note of the Supreme Court decisions this week and the overall trend of judicial decisions that bolster the First Amendment. But he also worries what it means for the future if we culturally abandon free speech values:

The Supreme Court is upholding the black letter of liberty, but are Americans upholding its spirit? When college students, encouraged by professors and administrators, believe that they have a right to be free of offense, no. When Americans hunger to "open up" libel laws or jail flag burners, no. When our attitude towards the hecker's veto becomes "let's do it to them because they did it to us," no. Not only is speech practically impaired, but in the long term the cultural norms necessary to sustain good Supreme Court precedent are eroded.

After giving White space to explain why hate speech is legally protected, the Los Angeles Times gave the sociologist and legal scholar Laura Beth Nielsen an opportunity to argue that hate speech should be restricted. The crux of her argument is that hateful speech disproportionately affects the disenfranchised and causes actual measurable harms.

Here is what is especially wrongheaded about Nielsen's op-ed: She repeatedly notes how government's speech restrictions have historically protected the powerful and influential. Yet she somehow does not realize that this is an argument against granting the government the authority to define and restrain hate speech.

So she complains that Congress passed a law to prevent the Westboro Baptist Church from protesting military funerals but never did anything to stop the church from protesting the funerals of people who died of AIDS. She denounces anti-panhandling laws, saying they were enacted to protect the interests of businesses that don't want them around. (She doesn't mention that the courts do in fact frequently strike these laws down as unconstitutional.) It's true: The government is more likely to restrict speech on your behalf if you have more political influence. If the government adds "hate speech" to its rationales for cracking down, do you really think the outcome will be any different?

Neilsen simply doesn't seem aware of how her rationales for restricting speech could be deployed in ways she wouldn't like. As if to underline the point, she pulls out the old "fire in a crowded theater" trope as an example that free speech is not absolute without mentioning that the quote comes from a case where a man was arrested and convicted of violating the Espionage Act for distributing a pamphlet opposing the draft.

So, to sum up: Feinstein sees government forces shooting student protesters and concludes that colleges should restrict free speech in order to prevent violence. And Nielsen thinks censorship laws that unfairly harm or exclude the disenfranchised are arguments in favor of giving the government more power to censor speech.