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.

Comments

[Longtobefree]

Fascists do fascism. Nothing new here.

[DaivdBehar]

Compare all this worthless, ineffective lawyer verbiage to a real remedy. Start by rescinding the tax exempt status. That is to support education. In education, all aspects of a subject are covered. At the next offense, pull the accreditation.

Then seize the assets if the school persists in its indoctrination.

[loki13]

I'd have to see what the actual legal issues are and more full briefing on the facts. I would normally say it's a stretch that the state actor should be held liable under the First Amendment for the disruptive acts of a heckler or hecklers, but I can imagine facts that are egregious enough to, perhaps, include that liability.

The brief recitation almost makes it seem like it was entirely planned out by all sides- Laffer provided the exit, a large group of students prepared with a microphone, the College Republicans prepared with their signs, etc. Everyone got what they wanted.

It's all just a load of crud. Let the guy speak. Honestly, who cares? How many of the students even know what the Laffer Curve is?

So monumentally stupid.

[Libertymike]

It would appear that the state actors affirmatively acted to encourage the heckling and to suppress Laffer's speech and that of the college GOP.

[loki13]

Maybe! This is just an order on the Motion to Dismiss. It's pretty easy to be able to state a claim at this point.

It appears that there were already a number of claims dismissed (in fairness, a quick perusal appears that it was without prejudice, as you would find in a 12(b)(6)), and this will just tighten the pleadings before we get to issues of fact.

Again, I think the whole thing is stupid. You want to protest? Fine. Protest outside the venue. Make your voices heard. But let the guy speak.

Or, better yet, don't protest. No. One. Cares. The reason certain groups invite certain people to campus is entirely because they want this reaction.

[Libertymike]

Yes, protest, but let the guy speak. Agreed.

[DaivdBehar]

Let the guy speak.

You are addressing ideologues and deniers. You kid yourself if you think they are human beings.

[Cal Cetín]

Arthur Laffer? Seriously? His fame comes from strictly fiscal/economic issues. I guess he touched some culture-war tripwires when he praised Trump's economic policy (with the major reservation that unlike Trump he supported free trade) and was on Trump's campaign and Trump gave him the Presidential Medal of Freedom. Also (going from Wikipedia) I suppose he hit the tripwires again when "[h]e advocated for taxes on non-profit organizations in education and the arts, as well as for salary reductions for *professors* and government officials." [emphasis added]

I would note that (again consulting Wikipedia) he praised Clinton's economic policies and even voted for Clinton (Bill not Hillary).

And he doesn't seem to have committed any of the now-controversial heresies about men and women being different and marriage being between a man and a woman, etc., etc.

In short, he's the sort of respectable conservative speaker the YAF and Young Republicans are *supposed* to invite.

You tell me, who should YAF and YR invite to avoid accusations of provocativeness? David French? David Brooks?

[David Nieporent]

Or, better yet, don’t protest. No. One. Cares. The reason certain groups invite certain people to campus is entirely because they want this reaction.

Sometimes, yeah. When you invite a professional provocateur (which much of the GOP is nowadays). Milo (I guess his day has passed), Coulter, Charlie Kirk, etc. But Arthur Laffer?

[loki13]

Um ... yeah, I have to admit, this one surprised me. Laffer might be many things, but AFAIK he's never been a professional provocateur.

[Cal Cetín]

May I ask why this surprises you?

[bernard11]

I'm with Loki.

Just let the guy talk, for Pete's sake.

The disruptions are moronic and childish, among other things.

[Brett Bellmore]

Have you considered that the hecklers might have been aspiring professional provocateurs, and Laffer was just a convenient target to practice on?

[loki13]

Have you considered that ... you might be kind of crazy, Brett?

You see this case out of SUNY-Binghamton and your mind goes to ... aspiring political provocateurs?

Okay then. It's college. I hope they are doing some fun stuff other than this nonsense. Drinking some beer, smoking some pot, taking some classes.

Or, you know, working on their professional provocateur licenses. Whatever.

[Brett Bellmore]

Heckling isn't a form of political provocation, but giving an economics lecture is?

[loki13]

What are you talking about, Brett? Did you not read what I wrote? What DMN wrote? What anyone writes?

I LITERALLY just said, "Laffer might be many things, but AFAIK he’s never been a professional provocateur."

I am really beginning to worry about you.

[TwelveInchPianist]

Well, you speculated upthread that Laffer might be in it to provoke a response.

And contrary to your claims, the students aren't drinking beer, smoking pot, etc. They are disrupting an econ lecture. Do you have a better explanation that Brett's about why they might do that?

[loki13]

1. No, I never said Laffer was in on it. I said that Laffer was provided the exit (an easy exit for the hall). That's part of the complaint and referenced in this order. That's an allegation that the Univeristy, who provided that particular lecture hall, was "in on it."

2. I have all sorts of explanations, none of which have to do with training to be professional provocateurs. Which is the kind of mindless paranoia that only children engage in.

3. I thought I had you on mute. I was wrong. Bye!

[Life of Brian]

I thought I had you on mute. I was wrong. Bye!

Loki's on a wild tear this week -- flamboyantly clicking off his hearing aid on anyone who dares question his authoritah.

Proof positive that most bullies are actually cowards at heart.

[Hank Ferrous]

I have no dog in your apparent ongoing fight with Brett, but PLOT are not a student group, and the mention of 'threats to disrupt the event by student and non-student groups' indicates that there were other non-students present. Folks who were there imply because they are insufferable ignorant asshats who can't tolerate people with different opinions speaking. As for the political provocation, maybe. It seems more likely that the heckler's veto was the intent.

[loki13]

Oh, I have no doubt that they were trying to shut it down.

You just see some things - you know, "crisis actors," "aspiring professional provocateurs," and you immediately know what you're dealing with.

How about this- a bunch of entitled and selfish jerks, mostly from the university, but some not, decided to disrupt the speech.

Apparently as part of some ongoing tit-for-tat about a stupid table.

This is profoundly stupid in a of ways. Entitled students. Enabling college administrators. Lack of respect for people who come to given boring lecture. Etc.

And now it's a federal case, because of course it is. This is like the stupid T-Shirt cases all over again.

[Brett Bellmore]

Pretty much certain that the state actors affirmatively acted to encourage the heckling, given the details related above.

[Sarcastr0]

You're pretty much certain every single time. That should maybe tell you your certainty meter is off.

This is dumb. Also bad.

It is not a sinister plot, either by students planning to go for those big pro heckler bucks, nor by the school to silence Laffer at last.

[Brett Bellmore]

The university made multiple affirmative decisions to advance the interests of the protesters, and improve their ability to exercise a heckler's veto. Many of those actions make no sense otherwise.

[Sarcastr0]

It doesn't occur to you to look for innocent explanations - like the fact that students have speech rights as well?

No, it's clearly a plot by the school to target this economist.

[Kazinski]

"The reason certain groups invite certain people to campus is entirely because they want this reaction."
Maybe YAF wanted to make a point: Conservative speech is being suppressed in public forums.

While PLOTs leaders and members are making a counterpoint: We will suppress conservative speech in public forums.

You seem to be saying a 'pox on both houses', but obviously it's a point that needs to be made.

I'll point out that Josh Blackman got about the same treatment at CUNY. I know a lot of people who come here to read him disagree with him, but nothing he says is worthy of a riot to suppress.

[loki13]

No, I wasn't doing a "pox on both houses."

Instead, it was more banal. Don't give people that reaction that they crave.

It's funny, that I have so many comments reiterating the same point (that this is wrong) and yet so many people refuse to accept that I might agree with them, and feel it necessary to see if they can find some way to argue. 🙂

[JSinAZ]

“Don’t give people that reaction that they crave.”

In this case, wouldn’t that have been up to the state actors prevent the heckler’s veto?

[Krayt]

it’s a stretch that the state actor should be held liable under the First Amendment for the disruptive acts of a heckler or hecklers

That's this constitution, by the way:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Government should be securing rights, as that is why We The People created it.

[loki13]

As a general rule, the state actors usually aren't liable for the actions of private actors (the hecklers in heckler's vetos).

The reason why is pretty simple- the people suppressing the speech, or attempting to suppress it, aren't state actors.

Now, facts matter. It's certainly possible that a state actor could be held liable (for example, using the hecklers as a pretext to suppress speech), but it's not the usual case that you get to sue the state actor because private individuals are protesting or heckling your speech.

[Josh R]

On the merits (again noting it is easy to state the claim), whether the government choosing to remove the speaker rather than the heckler (absent any pretext) violates the First Amendment strikes me as a very interesting question that likely has not been addressed in many, if any, cases.

[loki13]

Feiner? That's the ur case.

Just key cite it.

[Josh R]

I don't think Feiner resolves the issue of whether the Constitution permits the government to remove the speaker rather than the heckler in order to retain peace and order.

[loki13]

I think that Feiner (and progeny) do resolve most issues when it comes to the hecker's veto.

If you are saying, "Is it permissible for the government to remove a speaker (aka, censor the speaker) just because there is a heckler and no other safety issues," then I think you should already know the legal answer to that, because it's the same as "Can the government remove the speaker, because they want to."

Those aren't different scenarios.

[Josh R]

I think all parties agree there was a safety issue in this case. But, is it possible to distinguish Feiner because the government could have much more easily removed the heckler rather than the speaker in this case?

[loki13]

I don't think the parties agree that there was a safety issue in this case.

The Plaintiffs allege that there is a super-secret unwritten speech suppression policy that is targeting them (kinda like double secret probation?) and that the safety concerns were just a pretext to shut down Laffer's speech.

Notably, among the allegations were the ones that the "College Progressives and PLOT (?) occupied the lecture hall" and were the majority, which makes it seem unreasonable to remove them more easily.

The Court had to accept those allegations as true; I am dubious as to at least some of them.

[Josh R]

You could be right about what the plaintiffs don't agree about the safety issue. But assuming for the sake of argument either they do or a judge holds there was a safety issue, I nonetheless think Feiner might be distinguishable.

[Brett Bellmore]

"As a general rule, the state actors usually aren’t liable for the actions of private actors (the hecklers in heckler’s vetos)."

This is where the original meaning of the equal protection clause comes in: If the university, a state actor, would have protected a liberal speaker against an attack by hecklers, they must protect the conservative speaker.

The EPC was intended to keep state and local governments from placing their enemies at the mercy of private attackers by withdrawing from them the protection of the law. Replace Laffer with a civil rights marcher, and the hecklers with the KKK, and you'll get the picture.

What's going on is that the hecklers are actually the university's proxies in this rights denial. The university would absolutely have shut down right wing hecklers who acted similarly against a left-wing speaker.

[loki13]

Let's put aside your results-oriented reasoning.

I will simplify what I am saying for you-

A. As a purely legal matter, even though some of the claims have survived a motion to dismiss, it is unclear to me that they will get past summary judgment. Maybe! Maybe not.

B. Regardless of the legal standards, I think it is wrong for people to try to shut down speakers. Protest outside, have your own speaker, ignore it, whatever.

C. As I alluded to, and DMN hammered home, Laffer is just a ....bizarre ... choice.

Good? Good. Please don't inflict your theory on the history of the post-Civil War amendments on me. It might hurt my brain. I would ask that you spare me that. 🙂

[Lee Moore]

loki : As I alluded to, and DMN hammered home, Laffer is just a ….bizarre … choice.

and

loki : The brief recitation almost makes it seem like it was entirely planned out by all sides- Laffer provided the exit, a large group of students prepared with a microphone, the College Republicans prepared with their signs, etc. Everyone got what they wanted.

I'm getting interference on this channel. Laffer is just a boring old supply side economist not a flamethrower, but nevertheless he went all the way to this college on the pretence of making a speech that he didn't really intend to make ?

It’s all just a load of crud. Let the guy speak.

A fine aspiration, but entirely worthless if there are any people who don't share that aspiration, and if there's nothing the law can do to dissuade them from preventing the guy speaking.

Now do :

"it's all a load of crud, just let the gal have an abortion."

[loki13]

I apologize if I was unclear, or if I was clear and you missed it in your desire to argue. I will clarify-

Laffer is not a Plaintiff. When I said that everyone got what they wanted, I was referring to the protesters (the College Progressives and PLOT) and to the College Republicans and YAF.

Controversy and news. The Progressives got to shut something down, and the Republicans got to say they were censored. Both sides "won."

Because let's face it- no one was going to care that much about Laffer's actual speech.

[Brett Bellmore]

The Republicans say they wanted the speech, not an opportunity to say they'd been censored. I see no reason to suppose they're lying about that.

[shawn_dude]

UPD's comment regarding the availability of a private, ticketed event goes to this. If the Republicans had held a private event on campus, the protesters would have no right to enter without purchasing a ticket and UPD would have more options for removal. In a situation where a protest was planned, taking the event private would neatly solve the problem and let the lecture continue. Instead, for some reasons not explained in the OP, the Republicans chose to keep it open to the public, which included the protesters.

[Cal Cetín]

I think it's the Campus Republicans' fault for wearing short skirts.

[Brett Bellmore]

If they'd held a private, ticketed event, the existing precedent is that the hecklers would have had an even easier time shutting things down, because they could have reserved all the tickets up front, so that nobody who wanted to attend could get one.

Yes, pretty much "short skirts".

[KHP54]

Good Lord! If officers of the state remove the speaker rather than the heckler(s) then they are suppressing the speaker. If they were to merely offer *offer* to help escort the speaker out of the venue, in order to help insure his safety, and the speaker accepts... Well that's a different matter. But in the ordinary course of events the state should be suppressing the disruptors.

[Josh R]

The judge held the state was liable when it removed Laffer. I'm not sure that's right or wrong, but it is at least a state action.

[loki13]

My reading of the allegations is that they are alleging that instead of trying to provide adequate protection and ability for Laffer to speak, the University planned to remove him.

[Josh R]

Again without commenting on the ultimate merits of the complaint as you described it, wouldn't that also constitute state action?

[loki13]

Yeah. I mean we all learned basic First Amendment law in law school and Feiner, right?

But to be clear- I am not arguing the state actor part. Just that it is unusual to hold state actors liable for a heckler's veto. If the allegations are correct, then it is possible that this would be that rare case. But there are still factual and legal hurdles that seem significant.

On the other hand, and as a pure policy matter, I am going to keep saying that this is all nonsense from my P.O.V. and people on these campuses need to just let people speak. Protest outside. Bring in a different speaker to rebut that speaker.

Or, better yet, just ignore it. Seriously- no one cares at SUNY Binghamton (or anywhere, really) what Laffer has to say.

[Josh R]

It may be unusual, but it strikes me as sufficient for stating a claim.

[loki13]

...yes. They were able to have some of their claims survive a motion to dismiss. If you can't plead your way around a 12(b)(6), you shouldn't have filed in the first place. 😉

[Don Nico]

loki,
the state not only removed Laffer, it created the non-negotiable conditions—same building with adjoining rooms—in which it would later argue that Laffer had to be removed.

Sure looks a lot like state action.

[Greg J]

Given the undisputed facts of what happened, that's not "alleged", that's "stated the intent and actions of the State officials."

[Cal Cetín]

Both sides!

[Cal Cetín]

"How many of the students even know what the Laffer Curve is?"

Are you calling SUNY-Binghamton students ignorant and uneducated?

[Hank Ferrous]

Yes. And, I will expand that outward to the vast majority of people. Myself included.

[Brett Bellmore]

The Laffer curve is one of those concepts that's trivially true, but where the interesting question is always whether it's actually applicable.

Tax revenue is zero at tax rates of 100% or above, because nobody bothers engaging in the taxed activity. Tax revenue is zero at a zero tax rate, because no taxes are collected regardless of activity. Therefore there is some intermediate rate that maximizes revenue, and if you're on the high side of that rate, you will increase revenue by lowering your tax rate.

But, are you on the high side of that point? That's the interesting question that really needs answering in any given instance.

[Cal Cetín]

Indeed, but whatever its use in economics, historically it was an important part of the history of the Reagan era. Saying the students are ignorant of it would be like saying the students are ignorant of, say, Keynesianism - or that they think Botticelli is something you serve with tomato sauce.

[Lee Moore]

But, are you on the high side of that point? That’s the interesting question that really needs answering in any given instance.

Other interesting questions include :

1. whether maximising tax revenues is an interesting question (it being just as trivially true that the tax rate that maximises tax revenues is higher than the tax rate that maximises economic welfare), and

2. how different Laffer curves apply to each economic actor - ie the same tax rate will be the marginal rate that causes Mr A to start working overtime to preserve his post tax income, but causes Ms B to retire because the pay off from working is no longer worth it.

[Brett Bellmore]

Well, sure, the trivial observation is just the starting point for a lot of interesting questions.

I view the Laffer curve as the sort of thing anybody with even an Econ 101 level grasp of economics should be at least passingly familiar with. But a lot of people were encouraged to treat it as a punch line, instead.

[Darth Chocolate]

But the real question is: Do the SUNY Administrators and UPD get qualified immunity?

[Rev. Arthur L. Kirkland]

A credible institution should be able to ensure that a speaker such as Mr. Laffer can speak. Teenaged clingers and fledgling bigots have rights, too . . . even when those young conservatives seem more interested in provoking confrontation with the mainstream than in arranging a presentation by a speaker.

With contributions from all angles -- the institution, the left-wing extremists, the right-wing extremists, the security personnel -- this event reflected poorly on essentially everyone involved.

[Krychek_2]

It's only a matter of time until come college Republican pulls out a gun and blows away a couple of anti-speech thugs. Or, a half dozen college Republicans who happen to be on the football team tackle some of the anti-speech thugs. Or respond in kind by heckling a progressive speaker.

Much as I disagree with the college Republicans' political views, they are just as entitled to have their speakers as the progressives are to have theirs, and I'm surprised at the relative restraint that has been shown.

One would think universities would understand that such an event is not in their best interest, and would do a better job of protecting the free speech rights of the college Republicans.

[Brett Bellmore]

"and I’m surprised at the relative restraint that has been shown."

You shouldn't be. The conservative students are well aware that any such action would be met with a swift end to their educational aspirations, and be prosecuted to the full extent of the law.

[shawn_dude]

So much for a "good guy with a gun" taking out the "good republican with a gun" ensuring free speech by murdering a speaker.

[IPLawyer]

Yawn

[gormadoc]

"I’m surprised at the relative restraint that has been shown."

Conservative frat boys heckled an outdoor political event at my institution and were then subject to intense university scrutiny before the frat was suspended.

[Krychek_2]

Is your institution public or private?

[gormadoc]

Public.

[Krychek_2]

In that case, why did they not file suit? That sounds like an open and shut First Amendment violation to me.

[gormadoc]

I don't know. They did have a lawyer give members a talk about their rights, but I suspect they didn't fight it because they were guilty of other issues; even if other Greeks were bad they were definitely the worst. However, it's also clear that they were targeted for the heckling as that is what prompted the investigation.

[Brett Bellmore]

There's your rights, and what you can get away with without your remaining years in college being made a living Hell, and they're not always the same thing.

[loki13]

Josh R.-

When people say "heckler's veto," they always mean it pejoratively, but the use of it changes depending on the context. Let me be more clear.

1. The sticks and stones example. In standard FA jurisprudence, the idea that government should be able to restrict your speech because it causes other people to feel bad (even angry) is considered anathema, outside of maybe fighting words (which might not exist doctrinally any more). This is the Snyder v. Phelps example.

2. Tinker, tailor, soldier, spy. On the other hand, and perhaps regrettably, the one area where the heckler's veto is most recognized is at the schoolhouse gate, K-12, under the Tinker standard (substantial disruption). This creates a certain perverse incentive- after all, the speech that is at the core of the FA, that which "provokes, offends, and shocks" is the same speech that will have an effect on others and may cause disruption in the school. In effect, the protection for your speech is measured by the lack of disruption, given the audience the ability to censor you by ... reacting.

3. Safety. This is the escape valve for most FA cases that springs from Feiner; when there is a concern about safety (aka, a clear and present danger of a disturbance of the peace) then the government can, inter alia, remove the speaker. Obviously, it has to be imminent thread and not a conjectural threat, but a riled up crowd would certainly be sufficient.

These three issues are very different and while we tend to view them all as "heckler's veto" cases, they are treated differently under the law. On the specific issues that EV excerpted, I believe that the 12(b)(6) standard was overcome through the pleading, but I have doubts about the validity moving forward once additional facts are adduced. That doesn't mean that the other, collateral claims can't be successful, just that on the simple issue of removal when there was a majority and rowdy crowd, I find that liability tends to be unlikely.

Finally, I think it's important to note that the law doesn't always match up with what is correct. What is morally correct is to allow people to speak, regardless of whether liability should attach. Further, universities should have some discipline (no, not expelling, but some measure of discipline) for students who actively disrupt the lectures of the invited guests of the university.

Protesting? That's all right and American. But not letting people speak at all is wrong.

[KHP54]

Why would you draw the line at expulsion?

Okay, sure... Not for a first time offender who merely participated in the disruption. But a repeat offender? Or someone who shows clear disregard for the mission of the university by helping to plan such a disruption? I think the burden is on the other side -- what justification is there for letting a person who is contact is antithetical to the very concept of a university remain part of the university community?

[KHP54]

".... whose conduct...".

[loki13]

Because I'm not a big fan of the hyperbole train that everyone jumps on here.

College kids (yes, I call them kids, because most of them are still kind of dumb and because I'm getting old) do dumb stuff. I know I did.

For the most part, the dumb stuff (including this kind of disruption, for the first time) should get a severe reprimand, maybe even getting booted from the school for a semester. But it's so tiring for people to take these local squabbles and demand peoples' heads.

Life is short. People should have better things to do than to worry about whether some college students at a SUNY in upstate NY get expelled.

[Cal Cetín]

OK, let's reserve *expulsion* for the more extreme cases and apply *suspension* to most situations disrupting a regular campus event (assuming you can show intent to disrupt). That is, let them apply for readmission after specified period (and the university decides whether to grand readmission).

Personally, for many people life is too short (and finances too stretched) to warrant going to college in the first place. For those progressive students who attend college, their lives and those of others are too short and valuable to teach them that it's OK to prevent a duly-scheduled campus event from happening, or otherwise trying to run a campus by mob law like it was the Weimar Republic (sure I went there, but only because we're discussing the high stakes).

[Gasman]

Been a while since a college administrator has shown some balls. Hesburgh 15 minute rule had the effect intended. Protest still permitted, but 'get off of my lawn' is a still a valid distinction for administrators to state that there is a time and place for everything.
https://archives.nd.edu/observer/v04/1969-11-19_v04_046.pdf

[Josh R]

Feiner might be distinguishable in this case because the school chose to censor Laffer when they might have been able to keep things safe by censoring the hecklers (getting them hell out of there). It's not clear if the state had the same choice in Feiner.

Note, I am assuming the following facts for the sake of argument: 1) imminent safety per Feiner was an issue, 2) there was no pretext to censor Laffer and 3) there was no double standard whereby the school would react differently for a liberal speaker.

[loki13]

On the pure Feiner issue, Josh, it has been my experience that if the determination is made at the time and place of the disturbance, and there is even a scintilla of evidence of a safety threat, no court will gainsay that determination.

And this could be (in this case) for fire safety as well. If a concert in a public forum is shut down for excess capacity, there won't be liability to attach.

I will only note that the facts, as pled, indicate that the fire safety issue was originally ignored by the University, but (as they say) that's just one side. And it's still not paying attention to the public safety.

[Commenter_XY]

Loki13....This was an incredibly informative post. Nice summary. I like the taglines for each. 🙂

I agree. Let the Speaker speak. There is no argument between us on that point whatsoever.

[ragebot]

"Finally, I think it’s important to note that the law doesn’t always match up with what is correct. What is morally correct is to allow people to speak, regardless of whether liability should attach. Further, universities should have some discipline (no, not expelling, but some measure of discipline) for students who actively disrupt the lectures of the invited guests of the university."

As an alumni who is also a member of the rec center, a huge well appointed gym with an Olympic size indoor pool, indoor track, 8 indoor basketball courts, and tons of other toys I am in contact with students on a regular basis.

I can assure you most of them are lacking in a basic knowledge of the law and have what most on both the left and right would consider a lack of reasonable positions on what is morally correct.

Maybe more to the point the university has always seemed adverse to imposing any level of discipline. While simple things like spitting in the pool can/may be excused even when they are prohibited there are real laws, with real punishment, against using a cell phone in the locker rooms and showers that are ignored on a regular basis.

Point is if trivial stuff like this is ignored by students how can you expect them to not do the same to serious stuff like 1A stuff.

[loki13]

"I can assure you most of them are lacking in a basic knowledge of the law and have what most on both the left and right would consider a lack of reasonable positions on what is morally correct."

You could have just said they they have a lack of reasonable positions, period. There is nothing so ... disheartening ... as the fresh-faced, slightly confused zeal of the college student. 🙂

I agree with you in pretty much every thing here. I think that there are other, additional causes (what we used to call "helicopter parenting" is now so common it doesn't even warrant a name) but in general, universities can (and should) do a better job at inculcating some basic concepts like "respect for other people" into the students.

....then again, I think we sometimes forget how things used to be as well. For good portions of the 20th Century, it was a truism that "There is a time and a place for everything, and it's called college." It's hardly a new thing that colleges have traditionally sheltered their students in a myriad of ways from the harsh realities of "the real world."

[Jimmy the Dane]

That is some really nice free speech you got there....be a shame if some violent protesters cancelled it.....

[ragebot]

Most of us know the term 'broken window enforcement' which claims if you deal harshly with minor infractions the number of major infractions will decrease. Disruption is one thing but according to the facts in the case the disruption in this instance started with a guy using a megaphone to disrupt, something I view as more serious than simply booing or yelling. To make matters worse the LEOs let this go on for two minutes before removing him while also allowing him to pass the megaphone to a fellow disrupter. It should have taken seconds, not minutes for LEOs to remove the guy with the megaphone and confiscate it, or even prohibit megaphones inside the room where a speaker is.

I would bet discovery will want to know things like why megaphones were allowed in the room, why the delay in dealing with the first time one was used, and why it was allowed to be passed around. Maybe more important who made the rules of engagement to slow down dealing with the disruptions. If it was the university it seems they may be on the hook for 1A violations.

[loki13]

So based on the order, it seems that the facts alleged are that:
1. One person stood up and began shouting accusations from the second row.
2. This protestor was met with applause.
3. At some point during the applause, the protesting student was handed a microphone and urged to continue.
4. The College GOP in the front row rose and displayed "Free Speech" signs.
5. After two minutes of megaphone protests, the University PD moved to restrain the protesting student.
6. At some point, the protesting student was removed, but had handed off the microphone to others.
7. Finally, at some time "during these events" (what I listed as 1-5), Laffer was escorted out.

In addition, it is helpful to know that the lecture hall was overpacked, and that people were standing in rows, aisles, and around the back of the lecture hall. Which can explain the two-minute response time.

Finally, I think that this isn't as bad as some of the other issues; again, this is only based on one side of the story, but the real issue IMO isn't the so-called heckler's veto; arguably, that's a tough call. But it's also pretty standard FA law that you don't PUNISH the speaker for removing them. The allegations that the University went after the College GOP after this, if true, seems more consequential from a purely legal standpoint.

[ragebot]

As much as this may shock some peeps when I was a freshman way back in 1964 one of the first classes you were required to take was English 101 which was known as a 'flunk out class'. Even if a student showed up for class every day and did everything they were told they could still flunk out if they did not pass the tests. Now a days fully 1/3 of the students entering FSU and UF, the flagship universities in Florida are required to take remedial English. Talking about sheltering students from the harsh realities of the world.

[loki13]

"As much as this may shock some peeps when I was a freshman way back in 1964"

That you were a freshman in 1964 does not, in fact, shock people. 🙂

"Now a days fully 1/3 of the students entering FSU and UF, the flagship universities in Florida are required to take remedial English."

On the one hand, flagship universities. On the other hand ... Florida.

Checks out.

[ragebot]

You really missed the point. Remedial English is not something that should be taught at the university level.

FSU has the largest magnet in the world and draws scholars from all over the world who use the Dirac Library named after a former FSU prof who won the Nobel Prize among other things. Even though I am no UF fanboy they get props for AAU membership and Shands Hospital.

So you can go fuck yourself.

[loki13]

The one thing you can always depend on is someone with the name Ragebot having a great sense of humor!

Hey- did you know that the library at FSU burned down? The real tragedy is that half the books hadn't been colored in yet.

[ReaderY]

The lawsuit here is entirely against the university and related officials under Section 1983. Why isn’t there any claim against the disrioting students and the officials who conspired with them under Section 1985 and 1986?

The complaint might be appropriate for acts made by officials on their own. But it doesn’t really even address what’s being alleged here, which is that state officials actively conspired with a mob which acted, in this case not just in their own right but as agents of state policy.

It’s almost as if the Supreme Court had never reversed the indictments in United States v. Price and United States v. Guest and state officials and mobs remained free to wink and nod at each other, string ‘em up, and warm their hands by the fire as long as they have decent legal advice on how to do it and aren’t so foolish as to make a formal agreement.

[ragebot]

The students and out side agitators are likely suit proof and not likely able to pay off any judgement against them.

[DaivdBehar]

Soros is not judgment proof.

[ReaderY]

I suspect a number of students will turn out to have rich parents who are concerned about their children’s future if they become identified with publicity for violating others’ civil rights. I suspect some might be willing to settle. Moreover, suing the students, at least where evidence of what they did is clear and uncontrovwrtible, has deterence value that goes beyond the amount of money that can be collected in a judgment.

After all, college officials, as state enployees, are generally immune from money damages. So the best the plaintiffs could get from them would be declaratory and injunctive relief (plus, of course, legal fees).

[ReaderY]

One very obvious reason why you need to sue the students and people in unofficial capacities in a aituation like this is that private individuals who conspire with the state are considered state actors, yet don’t get qualified immunity. That’s important. The state-action analog of the deep pocket theory is you need to find defendants not protected by QI.

In addition, suing the university alone won’t deter the students, who will remain free to act the same way next time, even if they get less overt help from the university.

[ragebot]

There was mention of plenty of disruption from non students, what use to be called outside agitators back in the day. Also mentioned was College Progressives and PLOT who I doubt have QI and might actually have resources to pay off a judgement.

[Titus PUllo]

Well if SUNY Binghamton would just do two things this would not have occured..first do NOT lower standards for "social outcomes"..it is supposdly one of the more competitive schools but allows in all sorts of "angry" wokes to meet certain quotas. And to drastically lower the % of kids accepted from the NYC area. These tend to be the instigators. Just focus on smart kids from Central, Western, and Northern NY State..let the NYC kids go to CCNY and plot global revolution..

[David Emami]

Note that Laffer was giving a talk trade and tariffs, something he is at odds with Trump on. And yet, it was not Trump supporters who tried to shout him down.

[ragebot]

I would bet dollars to donuts that the protestors could not explain Laffer's position on any macro or micro economic issue, less yet why they did not agree with it. They were simply showing up to protest 'orange man bad'.