Cass Sunstein Guest-Blogging About "Campus Free Speech: A Pocket Guide"

I'm delighted to report that Prof. Cass Sunstein (Harvard) will be guest-blogging this week about this new book. Here's the publisher's summary:

From renowned legal scholar Cass R. Sunstein, a concise, case-by-case guide to resolving free-speech dilemmas at colleges and universities.

Free speech is indispensable on college campuses: allowing varied views and frank exchanges of opinion is a core component of the educational enterprise and the pursuit of truth. But free speech does not mean a free-for-all. The First Amendment prohibits "abridging the freedom of speech," yet laws against perjury or bribery, for example, are still constitutional. In the same way, valuing freedom of speech does not stop a university from regulating speech when doing so is necessary for its educational mission. So where is the dividing line? How can we distinguish reasonable restrictions from impermissible infringement?

In this pragmatic, no-nonsense explainer, Cass Sunstein takes us through a wide range of scenarios involving students, professors, and administrators. He discusses why it's consistent with the First Amendment to punish students who shout down a speaker, but not those who chant offensive slogans; why a professor cannot be fired for writing a politically charged op-ed, yet a university might legitimately consider an applicant's political views when deciding whether to hire her. He explains why private universities are not legally bound by the First Amendment yet should, in most cases, look to follow it. And he addresses the thorny question of whether a university should officially take sides on public issues or deliberately keep the institution outside the fray.

At a time when universities are assailed on free-speech grounds from both left and right, Campus Free Speech: A Pocket Guide is an indispensable resource for cutting through the noise and understanding the key issues animating the debates.

And the jacket blurbs:

"Campus free speech has suddenly become an issue on everyone's mind, featured in headlines about campus disruptions, controversial congressional testimony, and loss of trust in our institutions of higher education. Yet few people can articulate a coherent policy about free speech at colleges and universities. To the rescue comes Cass Sunstein, with a succinct and comprehensive primer. Clear, erudite, and to the point, Campus Free Speech lays out the underlying principles and the easy and hard cases. Read this book and you'll know what you're talking about when you talk about free speech and academic freedom."―Steven Pinker, author of Rationality and Enlightenment Now

"A thoughtful, fair-minded, and concise analysis by one of America's top legal scholars. Highly recommended for anyone interested in today's campus free speech controversies."―Eugene Volokh, cofounder of The Volokh Conspiracy

"At a time of national crisis regarding free speech on college and university campuses, Cass Sunstein's Campus Free Speech offers a truly brilliant and readily accessible analysis of how academic administrators, faculty, students, alumni, legislators, and others should think about these deeply troubling issues. No one interested in these challenges to our nation and its future should fail to read this book."―Geoffrey R. Stone, author of Perilous Times

"With this brilliant little volume, Cass Sunstein has achieved the near impossible: taking an extraordinarily complex area of First Amendment law and synthesizing it into a crisp, useful, and intellectually stimulating set of answers to free speech issues we see daily on America's college and university campuses. By any standard, a tour de force."―Lee C. Bollinger, author of Uninhibited, Robust, and Wide-Open

Comments

[Dr. Ed 2]

Along similar lines is this: https://indianapublicmedia.org/news/aclu-sues-iu-again-for-expressive-activity-policy.php

What the hell is wrong with saying “no protesting between 11 PM and 6 AM?!?

Maybe you need to tighten the wording a bit, it shouldn’t cover clothing or an individual walking somewhere, but if this is unconstitutional, then what about all the noise ordinances covering late night parties? That’s speech too…

[David Nieporent]

What the hell is wrong with saying “no protesting between 11 PM and 6 AM?!?

The fact that the First Amendment doesn’t say “no law abridging the freedom of speech during daylight hours.”

then what about all the noise ordinances covering late night parties? That’s speech too…

Do noise ordinances ban late night speech? They do not. Noise ordinances fall under what’s called a “time, place, and manner” restriction. For a TPM restriction to be constitutional, it must satisfy all of the following:

1. It must be content neutral. An ordinance banning loud noise does not restrict based on what the message is; it bans bsaed solely on volume. In contrast, a ban on “protests” does depend on what the message is.

2. It must be narrowly tailored to serve a significant governmental interest. A ban on loud noise at night is narrowly targeted at addressing a specific concern. A ban on all protests does not.

3. It must leave open ample alternative channels for the speech.

[Bruce Hayden]

I expect that a strictly enforced noise ordinance would be sufficient for most. That said, why shouldn’t your TPM apply to all speech restrictions? What’s wrong with, say, limiting protesting to specific areas, from 9 am to maybe 6 pm daily?

[Josh R]

It’s not content neutral.

[Bruce Hayden]

It is content neutral, esp if you broaden it to any camping, occupying, demonstrating, etc during off hours – say between 6 pm and 9 am. They wouldn’t be banning just Hamas/antisemitic protests, etc, but everyone’s.

[Bored Lawyer]

I was thinking of rock concerts — those would have to be banned during those times. Which I think would not be controversial.

[Purple Martin]

As I recall from the last quarter of the 20th century, rock concerts I went to tended to continue past 6pm.

Seems like government bans on that practice might be controversial. Did something change while I wasn’t watching?

[Bored Lawyer]

We are talking about a university campus. Rock concerts generally take place in other locations, no?

[Malika]

Concerts on university property are quite common.

[Bruce Hayden]

Sure, but rock concerts are Typically not held during the week or by the dorms where students are sleeping and studying. At homecomings/reunions we would have bands in the middle of campus – on Saturday nights. Once a year with months of warning. But mostly concerts were across campus as far from the dorms as possible.

[Josh R]

A blanket ban on being present would be content neutral. A ban on protesting or rock concerts would not be.

[Drewski]

Time, place, and manner restrictions are generally allowed for protests, but are evaluated under heightened intermediate scrutiny, which means the government needs to be able to show a compelling interest on the restrictions. Restrictions on protesting at night have been almost universally upheld by federal courts but “place” restrictions are a lot dicier (or, from another perspective, are more often abused by permitting authorities).

If IU wants to restrict protests at night, it shouldn’t be an issue. Instead they made a rule that bars all “expressive activity” at night, using a definition that would encompass a private conversation or Facebook post. While IU would be unlikely to enforce it to that extreme (and would lose a civil right suit if they did), there’s a lot of ambiguity as to what activity is covered or not.

IU’s goal is reasonable one but their rule is bad. It shouldn’t have reached litigation IMO. A university of all places should be able to see and correct the issue, if perhaps not fully to the satisfaction of the student challengers.

[Bruce Hayden]

And it’s that ambiguity, that discretion, that pushes it towards unreasonable TPM restrictions.

[David Nieporent]

What’s wrong with, say, limiting protesting to specific areas, from 9 am to maybe 6 pm daily?

“Only unemployed people should be allowed to protest.”

Setting aside that a ban on protests isn’t content neutral, how is a ban on all protests after 6 pm, or outside “specific areas,” narrowly tailored to an important government interest? It’s easy to articulate an interest served by banning overly loud noises late at night. (Or even during the day, for that matter, though the appropriate decibel level would reasonably be different.) But what’s the interest served by banning all protests?

[Bored Lawyer]

Blocking public areas? If a dorm faces a quadrangle where a protest is taking place, then dorm residents can’t reach their dorms. Although that might not apply in other public areas.

[David Nieporent]

A ban on blocking access to buildings would be both content neutral and narrowly tailored (and thus perfectly constitutional).

[Stephen Lathrop]

Hypothetical for you, Nieporent:

The FAA, with a range of choices available, establishes flight routes for final approach operations which systematically discriminate against poorer neighborhoods. In one newly-affected neighborhood, nighttime noise is projected by the FAA to exceed its own standards for residential use of affected areas.

An aviation noise activist in an affected neighborhood organizes a protest. He arranges for nighttime recording of each arriving flight. Taking care to calibrate sound levels for accuracy, he transmits each noise event in real time, to high-powered sound trucks parked outside the residences of various FAA bureaucrats, and airport authority officials, who thus get the same nighttime experience their policies inflict on the activist and his neighbors.

The intent is to do that all night, every night. And to continue doing it as long as neighborhood noise remains louder than the FAA’s standards for residences which the aircraft actually fly over.

TPM restrictions for that, or 1A protection?

[Josh R]

TPM restrictions for that, or 1A protection?

What is the “that” which is illegal, and what is the wording of the statute that made it illegal?

[Bored Lawyer]

What the hell is wrong with saying “no protesting between 11 PM and 6 AM?!?

The fact that the First Amendment doesn’t say “no law abridging the freedom of speech during daylight hours.”

Protesting is not the same as any type of expression. It tends to be noisier and invasive of public space. While that formulation is too broad, such a law could be drafted better to pass Constitutional review.

[Social Justice is neither]

The 1A also does not specify non-commercial speech, harrassment or exclude lies but I don’t see you jumping to remove restrictions on advertising, compelled menu statements, defamation or fraud in general. Odd that your free reading comprehension doesn’t recognize these similar restrictions on theis form of harrassment.

[Malika]

“The 1A also does not specify non-commercial speech, harrassment or exclude lies but I don’t see you jumping to remove restrictions on advertising, compelled menu statements, defamation or fraud in general.”

Maybe because that wasn’t in the comment responded to?

[Dr. Ed 2]

Then how is this constitutional?

269 MGL Section 1. “If five or more persons, being armed with clubs or other dangerous weapons, or if ten or more persons, whether armed or not, are unlawfully, riotously or tumultuously assembled in a city or town, the mayor and each of the aldermen of such city, each of the selectmen of such town, every justice of the peace living in any such city or town, any member of the city, town, or state police and the sheriff of the county and his deputies shall go among the persons so assembled, or as near to them as may be with safety, and in the name of the commonwealth command all persons so assembled immediately and peaceably to disperse; and if they do not thereupon immediately and peaceably disperse, each of said magistrates and officers shall command the assistance of all persons there present in suppressing such riot or unlawful assembly and arresting such persons. For the purposes of this section, the University of Massachusetts at Amherst shall be considered to be a town.”

[Bruce Hayden]

Good timing, with school starting again. Too many colleges and universities seem to listen only to their more radical faculty. I expect that Sunstein will impart some well thought out reality to those willing to listen, and has a significant enough reputation that many, hopefully, will listen.

[Bored Lawyer]

Query: a student approaches a Jewish student at a lunch table and tells her: “You Jews are scum, I hope you all die. Heil Hitler.”

Or, mutatis mutandis, a student approaches a black student and says: “You blacks are all monkeys tearing down this country. Go back to Africa or we’ll lynch you all.”

What, if anything, should the college/university do about it?

[Josh R]

Even Eugene thinks that’s punishable as harassment (either by a public university or by statute at any university).

[David Nieporent]

Right; that’s an easy question under existing doctrine. The harder part comes when someone is saying those things all over campus generally, but not aimed at specific individuals.

[Bruce Hayden]

Then you get into unsafe or toxic environmental issues. If they are doing it across campus, then those getting the brunt of it will (intentionally) feel unsafe. If this applies to transgendered, then why shouldn’t it apply for Jews and evangelical Christians?

[Bored Lawyer]

Ok. So what if someone puts up posters, or publishes a blog, or carries signs, saying the same thing(s)?

A strict application of the First Amendment is that nothing can be done, other than counter-speech. Is that the right policy for a university, public or private?

[Josh R]

Eugene argues it’s protected speech. It clearly is if you carry the sign in a public park and Eugene finds no distinction at a university setting. His reasoning is you can’t draw a principled line between what is and is not protected once you go beyond statements directed at an individual target.

[Bored Lawyer]

That’s a position. Which means a university has to allow a Klan or Nazi rally, so long as it’s not directed at an individual and otherwise peaceful. Whether that’s good policy is debatable.

[David Nieporent]

A public university has to. Or a private one in a place like California.

[Bored Lawyer]

What is being advocated for here is that universities, even private ones, adopt the First Amendment as their standard. (And if they do so, they may then be contractually bound to their students to do so.)

[Dr. Ed 2]

I would pursue the “I hope you all die” and definitely “or we’ll lynch you all.” Threats of violence, implicit and definitely explicit, are not protected.

As to the rest, it’s the third time that becomes harassment — same thing with “I love you.” Three times, unwanted, is actionable.