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Free Speech

Heckler's Veto at SUNY Binghamton May Have Violated First Amendment

The university shut down a speech by noted economist Arthur Laffer because of organized heckling by “progressives.”


From Tuesday's decision in Young America's Found. v. Stenger, by Judge Lawrence E. Kahn (N.D.N.Y.) (bold added):

[In late 2019, YAF and the SUNY Binghamton College Republicans organized a] lecture by renowned economist and presidential advisor Dr. Arthur Laffer titled "Trump, Tariffs, and Trade Wars" ….

On the day of the Laffer Event, YAF and College Republicans met with UPD [the University Police Department] and certain SUNY-Binghamton administrators. Stenger, Rose, and Pelletier were not present at the meeting, but the officials present were acting at their direction. At this meeting, UPD told YAF and College Republicans that UPD was aware of threats to disrupt the event by student and non-student groups. UPD criticized YAF and College Republicans for hosting a public, as opposed to private (ticketed) event.

Additionally, the SUNY-Binghamton administrators told YAF and College Republicans that they were unilaterally imposing two conditions on the Laffer Event. First, SUNY-Binghamton decided to increase the UPD police presence and move the event to a lecture hall with more readily available egress routes for Dr. Laffer, if needed. Second, SUNY-Binghamton provided College Progressives a lecture hall adjacent to the Laffer Event (and which had connecting doors to the event's lecture hall) to protest. YAF and College Republicans objected to SUNY-Binghamton's conditions, but the administrators refused to change their position. YAF and College Republicans also requested that SUNY-Binghamton announce in advance of the Laffer Event that its own written SUNY free speech policy required students and visitors to permit the Plaintiffs' free speech, and they again sought assurances that if there was a disruption, UPD would remove the disruptor and not the speaker. The administrators refused to agree to make a public statement about its free speech policy or to provide any such assurances.

When Dr. Laffer and his aides arrived at a nearby airport, YAF and UPD greeted them. UPD informed Dr. Laffer that it had concerns about the Laffer Event and that the University would prefer that Dr. Laffer return to his plane and cancel the event. Although Dr. Laffer told UPD that he wanted to proceed with the event, UPD showed him social media posts regarding the planned disruption of the event.

Approximately one hour before the Laffer Event, the two agents hired by YAF met with UPD. At this meeting, UPD stated they were aware of College Progressives and PLOT's [Progressive Leaders of Tomorrow's] planned disruption of the Laffer Event. Pelletier told the agents that if protesters approached Dr. Laffer's podium then he would order the agents to escort Dr. Laffer out of the event. UPD also informed Dr. Laffer's driver that he should stay with the vehicle since Laffer may need to make a quick getaway.

At least one hour before the Laffer Event was scheduled to begin, College Progressives and PLOT members were lined up outside the lecture hall and packed into the adjacent lecture hall provided by SUNY-Binghamton administrators. Once the doors to the Laffer Event were opened, hundreds of students and non-students, many of them members of College Progressives and PLOT, flooded in and packed the room. Many of these individuals remained standing in the rows, side aisles, and back of the lecture hall. At the insistence of College Republicans and YAF, UPD made one statement about the size of the crowd and SUNY-Binghamton's fire code and asked those standing to take their seats. UPD took no further action when the crowd refused to clear the rows, aisles, and back of the lecture hall.

The Laffer Event started promptly at 7:30 p.m. EST with John Restuccia, the then-president of College Republicans, providing a brief two-minute introduction of Dr. Laffer. Dr. Laffer took the podium and, just a few seconds in, a member of Defendant College Progressives and/or Defendant PLOT stood up in the second row and began shouting accusations at Dr. Laffer. The majority of those present greeted these accusations with applause, and the disrupting student was soon handed a megaphone and urged to continue. College Republicans, who were sitting in the first row, stood up and displayed "Free Speech" signs in response to the disruptors.

The disrupting student spoke through the megaphone for nearly two minutes before UPD took any action to restrain him. During these events, Pelletier directed the agents to remove Dr. Laffer from the lecture hall, and the agents complied with the directive and escorted Dr. Laffer out. Eventually, the disruptor with the megaphone was removed, but he handed off the megaphone to others. College Progressives and PLOT and their supporters continued to occupy the lecture hall, surrounding hallways, and the area outside of the lecture building for more than one hour. Stenger and Rose took no action to disperse College Progressives and PLOT.

The court began the analysis by concluding that the lecture hall at SUNY-Binghamton was a limited public forum, because it had been opened up for speech by outside speakers, so the government couldn't engage in viewpoint discrimination; and it went on:

Even as a limited public forum, the Court finds that Plaintiffs are able to sustain a First Amendment claim because it is plausible that State Defendants' conduct constituted viewpoint discrimination. [Brian Rose, SUNY-Binghamton vice president for student affairs] had previously said that College Republicans "intended to be provocative" and State Defendants were on notice that there was a planned disruption to the Laffer Event. Before the event, State Defendants provided demonstrators a lecture hall adjacent to the Laffer Event (and which had connecting doors to the event's lecture hall) to protest. Also, UPD informed Dr. Laffer that the University would prefer that Dr. Laffer cancel the event.

Finally, [John Pelletier, chief of the University Police Department] told the private agents hired to protect Dr. Laffer that he would order them to escort Dr. Laffer out of the room if protestors approached the podium, which is exactly what happened. Drawing all reasonable inferences in favor of Plaintiffs, the Court finds it plausible that State Defendants' actions effectively amounted to a cancellation of the Laffer Event and that such cancellation was not viewpoint neutral. Therefore, State Defendants' Motion to Dismiss is denied.

The tension between student activism and freedom of speech on college campuses is not a new phenomenon. SUNY-Binghamton officials had clear forewarning by social media and the tabling incident that protestors planned to disrupt the Laffer Event.

At this stage of the case, while the Court recognizes that the protestors have a First Amendment right to protest, SUNY-Binghamton officials facilitated the protest and did practically nothing to protect Plaintiffs' free speech. In effect, SUNY-Binghamton officials sanctioned the protest to [deteriorate] into suppressive conduct, or "enforced silence." See Whitney v. California (1927) (Brandeis, J., concurring) ("If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.") (emphasis added).

By removing the speaker from the lecture hall instead of the unruly protesters, State Defendants were not only plausibly violating this basic constitutional right, but also preventing fruitful discussion—not the role of an enlightened university. "Our Founding Fathers recognized the occasional tyrannies of those in power and, in doing so, amended the Constitution so that free speech and a free press should be guaranteed." In preserving the inalienable right to freedom of speech, the Founding Fathers were especially concerned with protecting unpopular speech. See Hustler Magazine, Inc. v. Falwell (1988) ("[I]f it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection.").

There are also other speech restrictions discussed in the case, related to the College Republicans' speech promoting the event and to the SUNY Binghamton student government's suspension of the College Republicans, but the court didn't go into the substance of those questions in detail, focusing instead on some procedural features; you can see them discussed here.