A chapter of Students for Life at Virginia's George Mason University (GMU) is trying to pressure the college to censor another student club—in the name of the First Amendment.
Students for Life of America is a national pro-life group. On September 7, the Students for Life chapter at GMU hosted a public event called Abortion is Not Right. It included a series of informational panels posted in a public place that argued that abortion is a violation of human rights. It compared abortion to slavery, segregation, and other human rights violations.
Following this display, the Black, African-Heritage and Caribbean Coalition (BLACC), another student organization at the university, released a statement condemning the event.
"We recognize that Mason encourages diverse viewpoints and beliefs, but in order to function as a campus society, deference must be practiced…. The loose language and insane idea of abortion being a 'version' of slavery is imprudent," wrote BLACC in a letter published on its Instagram account. The letter, while critical of Students for Life, did not call for the group's censorship or demand that the university punish them in any way, instead making a vague demand for a "meeting with Students for Life; in the presence of University Life administrators, Center for Culture, Equity and Empowerment officials, and all other necessary parties to swiftly reduce this harm." The group added, "Our goal is not to change minds, hearts, or beliefs but to make it clear that loose connections and reckless statements that directly harm Black, African, and Caribbean students is unacceptable."
According to Students for Life of America, the GMU Center for Culture, Equity and Empowerment later posted BLACC's statement on its Instagram story and wrote that it was "working closely with black student leaders to repair harm."
Students for Life of America then sent a legal letter to GMU arguing that the criticism faced by Students for Life at GMU and the administrators' subsequent sharing of BLACC's letter constituted a violation of the chapter's First Amendment rights. The group then demanded a litany of apologies, that BLACC's statement be taken down, and that the school reprimand BLACC for criticizing Students for Life at GMU.
"In posting the Coalition Letter and then sharing it, and GMU's failure to require those posts be removed, Students for Life at GMU has been shamed and publicly humiliated without a chance to defend itself in the public sphere," wrote Zachary S. Kester, legal counsel for Students for Life of America in the letter, which was sent to BLACC and GMU's Center for Culture, Equity and Empowerment.
The letter further argues that the chapter's First Amendment rights had been violated. According to Kester, "putting up warning signs to direct traffic away from a person engaged in free speech is a violation of that person's freedom of speech. Here, the Coalition and the Equity Center have put up the digital equivalent of warning signs around Students for Life at GMU's free speech. It is a violation of the law to shut down speech that the university, or subsets of it, disagrees with. While Students for Life at GMU was permitted to have a table and display, it was thereafter harassed and publicly shamed by the Coalition, with no ascertainable repercussions for the offending group." Kester further alleges that "by circulating unfounded and false public accusations, the Equity Center is committing a due process violation." Thus, Kester argues that a GMU affiliate expressing their agreement with criticism of Students for Life at GMU constitutes an illegal "heckler's veto."
However, this legal logic appears to be flawed. While one can certainly argue that university officials jumping in on ideological debates between students can harm the culture of free speech on campus, the university administrators' actions were not censorship by any stretch of the imagination.
"They seem to have it backward here," said Zach Greenberg, an attorney at the Foundation for Individual Rights in Education (FIRE), a First Amendment rights group. "The university has their own First Amendment right to criticize groups, measures, viewpoints; it happens every day. The university cannot punish student groups, though, for exercising their rights, for expressing themselves. And when student groups call for the university to punish others for their viewpoints, their ideas, even offensive ideas, a public university should resist those calls."
Kester claims that BLACC's criticism of Students for Life at GMU constitutes defamation, thus the letter's demands that they be "reprimanded" by the university.
Kester tells Reason that the following statement by BLACC is defamatory: "While [Students for Life at GMU] believes that abortion affects them directly, the loose language and insane idea of abortion being a 'version' of slavery is imprudent. We recognize that SFL may not have intended harm to our Black students, however, the impact speaks for itself."
"Those consecutive sentences is the functional equivalent of BLACC calling Students for Life of GMU racist," Kester tells Reason. "Is that not the impression that you were left with? I'm pretty sure that any reasonable observer would be left with that impression. In fact, the legal standard of defamation is 'what's the impression left upon the observer.'"
He continued, "Defamation per se includes statements about people's mental state or mental condition, and given that BLACC called the version slavery 'insane,' that speaks to mental condition and it constitutes defamation per se…. There's not a generalized, overarching First Amendment right to call someone 'racist.'"
However, Kester is simply incorrect. The statements he highlights as defamatory do not appear to meet the legal standard of defamation, which must include a false statement of fact, that this statement is communicated to a third party, fault which rises to negligence, and damages, meaning harm to the reputation of the defamed individual.
"A lot of derogatory, even unfairly derogatory, criticism is treated as pure opinion, and thus not legally actionable," wrote Eugene Volokh in The Volokh Conspiracy." So saying 'Kyle Rittenhouse is a white supremacist' or 'Saule Omarova is a Communist' (or 'Socialist') isn't libelous, because that is understood as an opinion." Thus, there is simply no legal basis for claiming that BLACC's criticism—which did not even explicitly call Students for Life at GMU "racist"—constitutes defamation. Further, there is, in fact, a First Amendment right to call someone "racist," as well as a host of other derogatory names.
No matter how much Students for Life at GMU try to say otherwise, criticism from another student group isn't a violation of their First Amendment Rights—in fact, it's a sign of a healthy campus culture, one that uses speech, not censorship, to solve disagreements. As BLACC said in a YouTube video discussing the incident, "This isn't about Students for Life's beliefs. It never was. And it's not about anyone's values, beliefs, opinions, or otherwise. We all think differently, and it's important to recognize that everyone here—from our students, staff, faculty, and organizations—hold different beliefs. This difference in our thinking is what makes our campus strong."
What is a violation of First Amendment rights is trying to silence criticism.