The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[UPDATE Mar. 15: The University has agreed to cover the security costs.]
[UPDATE Mar. 7: I've bumped up the post, which was originally posted Monday, Mar. 5, in light of the Dean's response; click on "MORE" to see the rest of the original post, the Dean's response, and my reaction to the response.]
The Federalist Society at the University of Miami School of Law is trying to put on a debate on free speech between political scientist Charles Murray and Miami law professor Mary Anne Franks, who has written extensively about First Amendment law. Murray, of course, is controversial because he coauthored The Bell Curve: Intelligence and Class Structure in American Life, a book that suggested (among other things) that there may be some biological differences in intelligence between various racial groups. But perhaps because of recent attempts to suppress his speech—including a notorious violent attack at Middlebury College, in which Middlebury professor Allison Stanger was injured—he has also started talking about academic freedom (see, e.g., here). This particular event promised to be a serious, substantive discussion between two serious, substantive scholars.
But the University of Miami has been demanding over $7500 in security fees to allow the event to proceed; their quote called for 21 police officers plus 10 security guards, as well as a "team of bag checkers and wanders." Naturally, that amount is prohibitive for a small student group.
Now I recognize that security costs money, and that universities would understandably prefer to spend their funds on other things. And Miami is a private university, so they are not bound by any First Amendment constraints that would govern a public university.
But the university can't be blind to the practical consequences that such decisions lead to:
[1.] If people know that violence (or even just threats of violence) against speakers will lead universities to demand such security fees, and thus prevent the speakers from coming in the future, the result will be more such violence and threats. Behavior that gets rewarded gets repeated—if exremists learn that such tactics work, we'll see more such tactics.
And these tactics will of course not just come from extremists of the Left. People who are willing to use threats to silence anti-Israel speech have already learned the lesson. Expect the same from some people who want to silence speech by positive biographers of Kemal Ataturk, and who knows who else. The Ataturk incident I referred to involved shouting down the speaker (a leading academic scholar of Turkish history), not threats of violence as such. But it shows that the appetite for suppressing such speech exists; if violence or threats become the key to such suppression, expect more of them.
[2.] Of course right now, the bulk of the suppression attempts on university campuses have come from extremists of the Left. If the universities effectively accede to that, rather than stand firm against it, the ideological monoculture at many academic institutions will just become more and more severe. That too can't be lost on the University of Miami administrators.
[3.] Finally, creating incentives to engage in violence doesn't just undermine free speech: It undermines the rule of law. What culture are we building if we teach people that thuggery pays?
This is why the Supreme Court has rightly rejected such heightened security fee policies for parades and demonstrations in traditional public fora (see Forsyth County v. Nationalist Movement (1992)). True, protecting speakers against violence means more costs for police departments, which are ultimately borne by the taxpayers—but it's a wise investment in preserving free speech and the rule of law. I hope the University of Miami reaches the same conclusion, and reverses its decision.
I called the law school dean's office to ask whether they had a statement on this, but they referred me to the publicity office, which said they didn't have any information at the time. [UPDATE: I've since spoken to the Dean, and she says things are more complicated than at first reported, and they're trying to see if things can be worked out; I hope to have more from the Dean in a few days.] I should say, though, that I much appreciate Prof. Franks' willingness to participate in the debate—she deserves a good deal of credit for that.
Here is the letter the Federalist Society sent to the law school dean; I'll of course be glad to report on any response if one is offered:
We have just received the proposed security cost estimate from the UM Police Department. We are surprised and genuinely concerned about the implications that this request has for this event, the Federalist Society, and the law school. We ask that you quickly clarify (by March 6th) that no such fee will be required. Otherwise you will be censoring free speech—more precisely a debate on free speech.
The total cost listed for security is a minimum of $7,646, guaranteed to increase with the hiring of additional wanders and bag checkers. This is unprecedented and obviously unaffordable for any student group.
Just as one example, last year, the co-founder of the #BlackLivesMatter movement, Alicia Garza, gave multiple stand-alone lectures at our University at the invitation of Osamudia James, a professor at Miami Law. At the time, the BLM movement was developing into one of the most powerful and controversial interest groups our nation has seen in decades. Their activities received national attention on a daily basis by virtually every major news source. By that time, the group had been responsible for numerous high profile demonstrations that inflamed passions across the nation and on both sides of the political aisle.
This all goes to say that the co-founder of the BLM Movement was—at the time—a highly controversial figure in American politics. Her controversial nature is simply not debatable. Nonetheless, we are not aware of any security costs that were charged for her individual speaking events. That event was sponsored by the Office of the Provost, the Division of Student Affairs, Student Life, Multicultural Student Affairs, and Housing and Residential Life. If security cost were in fact imposed, we would be very interested to find out the amount charged and who ultimately paid those fees.
This situation boils down to the following: The Miami Law Federalist Society is the only student organization on campus that has been required to furnish security fees prior to an event, and it is the most prominent libertarian/conservative organization on campus. The imposition of these security fees is sure to have a chilling effect on the Federalist Society's operations at UM.
Dr. Murray is an Emeritus Scholar at the American Enterprise Institute, a renowned political scientist, author, and public speaker. His groundbreaking scholarship was the catalyst that led to the comprehensive (and bipartisan) Welfare Reform Act signed into law by Democratic President Bill Clinton. Dr. Murray was a Peace Corps Volunteer, worked with US-AID in Thailand. He received his B.A. from Harvard and his Ph.D. from MIT. He is a decorated scholar, having been awarded Honorary Doctorates from Rhodes College and Universidad Francisco Marroquín. He has also been a recipient of the Irving Kristol Award, the Kistler Prize, and the Edmund Burke Award. He has published over 18 books and hundreds of academic articles. He is not a danger to the welfare of University students; he is not a speaker that warrants almost $8,000 in security costs. He is an elderly academic that poses no risk to the University's operations. The only risk he poses is upsetting the established norms of academic thought and behavior at the University of Miami. That alone does not justify levying these impossible costs on the Miami Law Federalist Society. These security fees are only setting a bad precedent at Miami Law that conservative/libertarian leaning organizations will have to pay to play whereas other organizations are entitled to explore ideas free of charge, indeed with support from the school.
This event is a debate on free speech and academic freedom. If it cannot be held at one of Florida's most prestigious law schools, where can it be held? By assessing unnecessary security fees against the inviting student organization in response to threats of disruption, you are effectively giving those who threaten the safety of campus a Heckler's Veto over any topic, speaker, or discussion that they are not comfortable with.
Rather than protecting your students, you are doing them a grave disservice by sheltering them from ideas that they have neither heard nor taken the time to fully understand. As future legal practitioners, students at Miami Law would behoove themselves to learn how to deal with unfamiliar and challenging ideas in a civil manner. We should not be encouraging our students to embrace emotional and intellectual frailty. Instead, we should be encouraging students to develop and exhibit mature adult traits, including the ability to listen and disagree courteously, or to simply exercise the choice not to attend events that may offend them.
If for any reason you cannot eliminate this fee, please let us know what the reason is for the fee and how this event differs from other events where no fee was charged.
UPDATE [Wed 3/7/18]: The Dean sent me this morning a copy of a letter that she sent the student group president yesterday:
As you know, it is often the case that when the University or a student group invites a speaker to campus there are associated out-of-pocket costs. These can include travel, a speaker's fee or honorarium, reception costs and, in some cases, security costs. These costs clearly vary by speaker with the result that some speakers are more expensive to host than others. When a proposed speaker's cost exceeds the inviting unit or organization's budget one of two things happens: either the unit or organization reaches out to secure co-sponsors to contribute to the out-of-pocket costs or it decides not to issue the invitation.
Another necessary task for any organizer is to secure an appropriate venue for the proposed event. In the case of a speaker for whom security may need to be provided, the determination of the need for security, the degree of security and which venues are appropriate, needs to be made by the University professional law enforcement officers. And, of course, fundamental to any event and venue is making sure that the venue is available on the date proposed for the event!
As you well know, you invited Dr. Murray on behalf of the Federalist Society to campus to debate Professor Franks this past fall. The event was scheduled to take place at the Law School in the only room here which the campus law enforcement officials thought appropriate for hosting an event which they had determined would allow them to provide the degree of security which in their professional judgment was prudent. That is certainly their call to make, not mine and not yours. You are also well aware that we were both surprised to learn the out-of-pocket cost of the required security. The amount considerably exceeded your organization's budgeted event amount and the law school's as well. Nonetheless, because you had already invited Dr. Murray, because the room was available on the date you had invited him for because that date was imminent and because both of us had failed to anticipate the cost of security, I told you that the law school would absorb the cost of the security.
Unfortunately Hurricane Irma struck Miami shortly before the scheduled event and the University was closed for 2 weeks, necessitating the cancellation of all classes and events including the Murray/Franks debate.
In the meantime you scheduled 7 additional Federalist Society events on a variety of topics to occur throughout the course of the year. None of these has been deemed to require security and each falls comfortably within the budget of the Federalist Society. You have much experience securing an appropriate and available venue for speakers and debates.
With full knowledge that the Murray/Franks debate had been deemed to require security and that only one law school room and only a very limited number of other rooms on campus had been deemed by the campus police as potential venues, you scheduled Dr. Murray and Professor Franks for a specific date and time. You never satisfactorily confirmed that any of the venues was available. When you learned at the outset that the single law school room had been previously scheduled, you secured a room which had specifically been designated by campus security officials as unsuitable—all the while not revealing to anyone that the event you were scheduling was the Murray event—hiding it under a generic "Discussion/Debate" rubric. Because you had taken no action to check the availability of the few acceptable other campus venues, the law school staff did and we discovered that all had prior reservations.
Although you have not asked us to, we will arrange to make our one acceptable room available for the debate. It behooves you now affirmatively to solicit potential sources for help with its cost. Potential sources include the law school, the Provosts office, University Student Affairs, LAFAC [the Law Activity Fee Allocation Committee], and other student organizations as well as the Federalist Society itself. I expect you to contact me tomorrow about logistical details.
I also spoke to the Dean at some length, and she added that the $7500 figure quoted in this case was for a particular room elsewhere at the campus, which posed an especially complicated security problem; the total, she reports, would be considerably less for the room that the Dean's Office is now suggesting at the law school.
Here are some of my thoughts on the security fee policy (a separate issue from whether the student group had acted properly in its attempt to book the Spring event):
(1) The University of Miami policy is that student groups must raise funds for the various costs of bringing out a speaker—including security costs, which may vary by speaker, in those rare cases where the university thinks security would be needed.
(2) Sometimes the law school, the provost's office, the university student affairs office, or law school student government (via the Law Activity Fee Allocation Committee) may help pay for the various costs, including the security costs, though that is within their discretion. The students can also raise money from other sources, including other student groups, if those are willing to help.
(3) For the Fall event, the Dean was surprised about the university policy requiring student groups to cover the security costs; she therefore volunteered to pay the security bill for that event, as the letter notes. That, though, was an exception from the general rule, because of the surprise.
It thus appears that the University of Miami does have a policy of charging students security fees for those speakers that are seen as potentially drawing a violent response, and thus needing special police protection. Those fees may be paid by the university, the law school, or student government in some situations—but that is a discretionary decision that the university would make on an event-by-event and speaker-by-speaker basis, and student groups would often be expected to try to raise part of the money themselves.