My Revised Essay, #Heckled

I use my CUNY protest to assess how the First Amendment—and broader principles of free speech—should treat the heckler’s veto on today’s college campuses.

|The Volokh Conspiracy |

Last year, students at the CUNY Law School disrupted my lecture on free speech. You can watch the video here:

The incident made national headlines, and was the subject of widespread discussion on legal blogs and in other forums.

I've posted to SSRN a revised version of my essay #Heckled. My goal is to assess how the First Amendment—and broader principles of free speech—should treat the heckler's veto on today's college campuses. Professor Lawrence Solum wrote on the Legal Theory Blog that the essay was "Highly recommended and sobering."

Here is the abstract:

The conflict is all-too familiar. A controversial speaker is invited to speak at a university. The overwhelming majority of students on campus don't care one way or the other. A small number of students want to hear what the speaker has to say—primarily, but not exclusively, those who are inclined to agree with the speaker. However, a protest is staged by an equally small number of students who disagree with that speaker's opinions, and indeed object to his mere presence on campus. Most of those students demonstrate outside the event, or quietly protest inside the room. The leaders of the pack try a different approach: shout down the speaker in an effort to deplatform him.

This conflict is personally familiar: it happened to me. In March 2018, students at the City University of New York (CUNY) Law School disrupted my lecture. I will use my experiences to illustrate how students attempt to promote and inhibit certain types of speech.  My goal is to assess how the First Amendment—and broader principles of free speech—should treat the heckler's veto on today's college campuses.

Part I explains why certain speakers are invited on campus.  Part II addresses the corollary question: why do students protest those speakers? Part III considers the necessary consequence of Part II: how do students today protest speakers?  This part also recounts my experiences at CUNY, and addresses how the First Amendment protects speakers who get #heckled. Finally, Part IV addresses how the university should respond to student protests.

I welcome comments and feedback.

NEXT: Even Amy Wax is Protected by Academic Freedom

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  1. Prof Blackman, I’ll confess that I have not yet fetched the full essay. I have a specific question, however, from the abstract alone. You choose as your topic free speech “on campus”, and I’m wondering what, specifically, is magic about a university that changes principles of freedom of speech such that freedom of speech “on campus” is a unique topic.

    Normally, the question of heckler’s veto would hinge on whether the event was occurring in a public or private space, but universities come in both flavors.

    1. There are unique threats to free speech on campus.

      1. unique threats such as…

        1. Conservative control of a campus . . .

          (Wheaton, Liberty, Regent, Franciscan, etc. etc. etc. )

          1. Prompted by arguments like yours, this blog has started addressing these private universities not living up to their statements regarding free speech.

            The real problem historically, though, is government supression.

            You, too, currently, labor under this concept of freedom:

            We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it

            So yes, government is ignoring its primary duty to secure rights by failing to stop disruptions, or allowing hecklers’ vetos.

            1. “So yes, government is ignoring its primary duty to secure rights by failing to stop disruptions, or allowing hecklers’ vetos.”

              If they’re in a public space, the hecklers have the right to speak, too. So your theory is that the government should secure their rights by… taking them away?”

              1. “Your right to swing your fist stops at the tip of my nose.”

                Protestors have the right to speak. They do not have the right to deny others their own right to speak.

                Further, please note that in the example above, the hecklers were in an area legally considered a limited public forum. The rules would have been somewhat different if the professor had tried to deliver his speech from a soap box in the middle of the town square.

                To your final question, yes, the way that government secures the rights of good citizens is by taking away the rights of abusers. Again, you have a near-unlimited right to swing your fist. But when you deliberately swing it into my nose, your rights could quickly become severely curtailed.

                1. “Protestors have the right to speak. They do not have the right to deny others their own right to speak”

                  Nobody’s right to speak is denied because others are speaking at the same time.

                  What you’re stumbling around in the dark trying to find is the right of the listeners to hear the speaker they choose. Alas, this right is unenumerated anywhere.

                  “Further, please note that in the example above…”

                  Noted as irrelevant, along with your attempt to switch from a statement of general principles into one specific case.

                  1. The courts disagree, James. As Prof Volokh has several times pointed out, the right to speak does include the right to listen.

                    For example, “The freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin.” Kleindienst v. Mandel, 408 U.S. 753, 775 (1972) (Marshall, J., dissenting)

                    Or if you want something older, “Equally clear is the right to hear. To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker.” Frederick Douglass, 1860

                    1. “The courts disagree, James. ”

                      They found an ENUMERATED right to hear speakers?

                      I
                      Don’t
                      Think
                      So.

                      Bye!

                    2. You
                      Think
                      Wrong.

                      Have a nice day!

                    3. Mind pointing out where in the text this right is enumerated? Still can’t seem to see it.

                    4. I mean, I think Pollock is very wrong, but saying “The courts disagree” and then citing a dissenting opinion isn’t really the way to show that.

  2. The person who has paid to use the meeting hall, and his audience, should immediately throw any heckler out, and if it takes a fight they should have goons there to do it. Any security fees they have to pay should carry the express condition that the security guards will do so at the speaker’s demand. Any other outcome is a rights violation.

    Similarly absolutist treatment must be given to the likes of Antifa, when they set out to forcibly prevent speakers and their audience from reaching the meeting hall. They are terrorists, not protesters, and police have no business to prevent victims from using any force necessary to get past the terrorists with impunity.

    1. “The person who has paid to use the meeting hall, and his audience, should immediately throw any heckler out”

      This is only helpful where there’s a person who has paid to use the meeting hall.. and where the meeting hall is paid for by public taxation, it’s not helpful at all.

    2. “If the right acted more like the left there wouldn’t be a problem.”

      1. If both of them DIDN’T keep trying to out-lower each other, we’d ALL be better off.

  3. “The conflict is all-too familiar. A controversial speaker is invited to speak at a university.”

    I would change that second sentence a bit. It should read: “A conservative speaker is invited to speak at a university…”

    Someone can correct me if I’m wrong, but in my experience, ONLY right-wing or conservative speakers are heckled, not left wing ones, and are heckled even if they are rather non-controversial (like the author Josh Blackman)

    1. “Someone can correct me if I’m wrong, but in my experience, ONLY right-wing or conservative speakers are heckled”

      You’re laughably wrong and/or have an extremely limited experience.

      See, e.g., what happened when town hall meetings were scheduled for Congressional representatives to explain the newly-hatched ACA.

      1. Don’t conflate a presentation at a university with political gatherings.

        1. So, presentations at universities aren’t like presentations at universities if there’s a hint of politics about?

      2. I give up.
        1. How are these scenarios similar?
        The ACA scenario is one designed on its face for public comment. An invited lecture isn’t.
        2. What, precisely, happened at these meetings that prompts your outrage?

        1. “I give up.
          1. How are these scenarios similar?”

          In the one case, you have a gathering at a public university whose purpose is the inform the public. In the other, you have a gathering at a public university whose purpose is to inform the public.

          “The ACA scenario is one designed on its face for public comment. An invited lecture isn’t.”

          So you’re unfamiliar with both, then?

          “2. What, precisely, happened at these meetings that prompts your outrage?”

          Outrage? Nothing. No outrage here. I’m a grown-up.

          But noting that the behavior was identical in the case of the leftie protesters heckling the invited speaker(s), and the rightie protesters heckling the invited speaker(s). Which is contrary to the premise I responded to, that the heckling of invited speakers is exclusively a tactic of one team and never the other.

          1. I’ve been to a ton of invited lectures on college campuses. Usually there is an organized Q&A at the end.
            This us nothing like the average city council meeting; which is what I assumed the ACA meetings were meant to resemble.

            Ok, whatever: if not “outrage” then evidence of misbehavior on the scale witnessed on a regular basis by invited lecturers who are not left wing.

            1. So, you assumed something you had no knowledge of, spoke of your assumption as if it were fact, and are now disappointed to learn that your assumption was not even close to accurate?

      3. “ONLY right-wing or conservative speakers are heckled…”

        Naw, they heckle left wingers too. Christina Hoff Summers, Alice Dreger, the guy from Evergreen, etc.

    2. Palestinian speakers have had trouble IIRC.

      But yeah, public campuses tend to be liberal places for lots of reasons so this asymmetry is not too surprising or significant. Not that it’s okay that these attacks occur! It’s ceding one of the few moral high grounds that remain.

      Just look at a thread about twitter or the NYT if you want to see conservatives attacking the First Amendment.

      1. IYRC, please give some cites for Palestinian speakers having had trouble. Orderly picketing outside the venue, not designed to prevent the event from occurring, would be legitimate, and shouldn’t count as “trouble”.

        1. I can point out a case of a Syrian refugee being harassed on twitter by a government official. Not quite the same thing, I know, but it’s been in the news lately.

    3. You’re wrong. Mostly it’s conservative speakers being heckled at this point in time. In the not-very-distant past, it was progressive speakers taking most of the heckling. And like today’s abuses, even the rather non-controversial ones were abused just because of their “guilt by association”. It was wrong then and it’s wrong now.

      1. How distant past are we talking about? Because I first went to college back in the late 80s, and truly rowdy/violent protestors back then were all very left wing also – protesting CIA recruitment on campus, protesting the Gulf War, etc.

        1. Depends a lot, I imagine, on which campus you happened to be on.

          The campus I was on in the late 80’s happens to be one that has all three branches of ROTC on campus, and the student body was, in general, quite supportive of the original Persian Gulf War. (Which was 91, otherwise known as the VERY late 80’s.)

  4. We aren’t talking about people on the street yelling at each other, we’re talking about people paid to speak in a private venue.

    Simply put, there are no First Amendment considerations here. You, the speaker, do not have a “right” to speak without interruption. The hecklers do not have a “right” to interrupt. You both may have that privilege, but if you have it (and you may not) it is at the pleasure of whoever has the rights to the property.

    Simply put, the property-owner (or their representative) gets the choice to tolerate or expel hecklers.

    This is not a matter of Free Speech rights. It is a matter of property rights.

    1. “We aren’t talking about people on the street yelling at each other, we’re talking about people paid to speak in a private venue. ”

      We are? I was under the impression that many universities are publicly-owned, say, by the state that’s in their name(s).

      1. Not quite. See above and in the linked article. If the professor had tried to spontaneously deliver the speech in the cafeteria or outside, that would count as a public forum. Where he did attempt to deliver the speech is considered a limited public forum. Some speech restrictions are allowed in a limited public forum.

        1. A limited what-kind-of forum? You misspelled “private”.

          1. No, I actually didn’t. This is a law-related blog. At least try to keep up.

            1. It’s a law-related blog, where even the stupid people know the difference between “public” and “private”.

              So, if you can’t even do THAT…

      2. I encourage you to walk into the governor’s mansion and check out the closet in the master bedroom. It’s public-owned (by the state), so per your theory of property rights there should be no issue, yes?

        1. ” per your theory of property rights there should be no issue, yes?”

          Ah… what theory of property rights would that be?

          (Intrigued by your suggestion, I had to look up if there even is a governor’s mansion. Turns out there are two, one in the capital, and another at the other end of the state.)

    2. So you’re against people blockading abortion clinics, right?

      1. That’s not a legal issue. That’s Jesus’ call. ‘The argument is settled when the chairman of the board has spoken,’ as noted conservative cultural ambassador Mel Gibson likes to say.

      2. Far as I can see, Blackman isn’t complaining that people couldn’t access his lecture, he’s complaining that someone yelled at him.

        Not very comparable.

        That said, still a matter of property rights. The owner of the property can decide what action to take (including calling the police) regarding someone blocking the door.

        Still not a Free Speech issue.

        1. People on the sidewalk and street blockading access? What happens when you call the police and say “People are on the sidewalk outside my office and I want them to go away!”

        2. “Yelling at him” becomes a free speech issue when guests can’t hear the invited speaker talk.

  5. This won’t stop until there’s a price to be paid by the heckler.

    Expulsion from the school would go a long way to resolving this problem.

    1. What do they get for a second offense, a mark on their Permanent Record?

    2. Because punishment is the only way to change behavior, and because expulsion is the only punishment that exists on campus.

      It’s almost as though you’re more interested in a scalp than problem solving.

    3. Gee, and I thought universities were places to learn and test new methods, maybe even make some mistakes.

      1. And the rest of us in the real world thought university was a place where one goes to learn how to act like a mature adult, and be exposed to ideas that make one uncomfortable, not a place where “might makes right”, or “your rights end where my feelings begin”, or, where, “I’m triggered” is an argument.

        1. Campus protests for liberal causes have a long history.

          Part of learning to act like an adult is flexing your freedom, sometimes in dumb ways.

          And getting burned for it to be sure; but not getting expelled or shot for it.

          1. I was an undergrad during the heart of the Apartheid/Divest protests.
            Protests are one thing.
            Suppression via heckler’s veto is as you are no doubt aware, something entirely different.

            1. Those protests shut down more than speech, as I recall.
              This strikes me as civil disobedience in service of an ignoble cause. That’s how it should be treated.

              The melodrama that it’s happening universally and that we need to start defunding universities is just another manifestation of the GOP victim culture.
              Only a matter of time before Kent State defenders start logging on.

              1. “This strikes me as civil disobedience in service of an ignoble cause. That’s how it should be treated.”

                Civil disobedience involves accepting the associated punishment. Is that what you are referring to? If there’s no punishment, it’s not disobedience.

                1. If there’s no punishment, it’s not disobedience

                  Well, that’s not true.

                  But yeah, there should be punishment. Saying no expulsion isn’t saying no punishment.

        2. “And the rest of us in the real world thought university was a place where one goes to learn how to act like a mature adult”

          When and where was this ever true?

          Have you seen the famous documentary film “Animal House”?

          1. Animal House is the highest achievement in American cinema.

        3. “And the rest of us in the real world thought university was a place where one goes to learn how to act like a mature adult, and be exposed to ideas that make one uncomfortable”

          A substantial part of the real world consists of conservative-controlled campuses that engage in strenuous censorship; enforce dogma; discriminate based on viewpoint in hiring and admissions; teach nonsense; collect loyalty oaths; require attendance at indoctrination sessions; suppress science and warp history to flatter superstition; and reject academic freedom.

          Those schools — which tend to be fourth-tier or unranked institutions — are not part of the reality-based world, but they are part of the real word. And they are the most strenuous censors in American academia, regardless of whether conservatives in general and the Volokh Conspiracy in particular issues a paltry partisan pass.

          1. Not only bigoted but off-topic. RAK is batting strong today.

            1. How is conservative censorship ‘off-topic?’ The Volokh Conspiracy prefers to avoid the issue of conservative censorship but the issue is nonetheless relevant.

              (Has Prof. Blackman ever conducted his ‘free speech’ presentation on a censorship-shackled, conservative-controlled campus?)

          2. What percentage of American college students currently attend these bastions of benightedness about which you are always yammering?
            I’ll set the over/under at 9.5%, and start taking bets.
            Now: what percentage of American college students attend a university notionally, at least, dedicated to free speech, where a liberal fascist has shut down a speaker?
            I’m betting the number is at least 4x as high.

            1. the number of liberal fascists? The over/under line on this number is “0”

              1. Good catch, he misspoke. There are no liberal fascists, but there sure are plenty of leftist fascists.

                1. See, the thing is when you combine two terms that mean opposite things, they cancel each other out and leave nothing behind. So “leftist fascists” means… nothing.. That’s not a thing.

                  Fascists are over on the right. Way over there, at the other end from the Commies on the left. In between, you have all the political-economic systems with the free people in them.

              2. Would “liberal fascist”, be a good, if somewhat avant la lettre , label for Danton, and his ilk?

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