The Volokh Conspiracy
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On Punishing Speech vs. Punishing Conduct
A university president provides a helpful explanation of the difference.
Cornell University recently sanctioned students who were involved in a protest that disrupted a university job fair. At least fifteen students have been suspended, according to this report.
After the sanctions were announced, a student asked "Why are you punishing students for free speech?" a student asked interim president Michael Kotlikoff after the sanctions were announced. No one is being punished for speech, he explained. Rather, some students are being punished for disruptive conduct. The distinction is important.
This week, Kotlikoff wrote an op-ed for the Cornell Daily Sun explaining the distinction and the reasons for the university's approach. After explaining university policies, he writes:
no one has been referred for their speech, and free expression remains fully protected at Cornell. But we must understand the difference between protected speech and speech or actions that are designed to suppress the speech and rights of others. Recent Sun letters similarly appear to confuse this issue. Shouting or writing "f*ck you Boeing" is free speech and fully protected; preventing Boeing from discussing jobs with students is not. Calling someone a "kapo" is offensive, but protected speech; breaking through a police line is not.
When I quickly tried to point out this distinction to my questioner, she responded that "Boeing kills babies." That is not a free speech argument, but rather one that asserts a moral justification for violating the rights of others; that assumes the right to decide what activities other students may pursue, what conversations they may have and with whom they may have them. Whatever their argument, whatever the grounds on which they see their actions as justified, we need to be cleareyed about what those actions are: not the assertion of the right of free speech, but the presumption of the right to suppress the speech of others. Jefferson, the flawed individual, but great political theorist and proponent of free speech, asked when arguing against censorship and for religious freedom: "Whose foot is to be the measure against which ours are all to be cut or stretched?" Indeed, who gets to decide which university activities are acceptable and which are not?
No student at Cornell has been punished for expressing their beliefs. Neither will any student be permitted, whatever their feelings of moral righteousness, to forcibly deny others the rights that are central to our mission at Cornell: the rights to freely speak, converse and learn, with whomever and about whatever they choose.
Universities should endeavor to provide broad protection for speech, including offensive or uncomfortable speech, but this does not require excusing or ignoring disruptive conduct. Indeed, a particularly ill-advised approach would be to water down protections for offensive speech while failing to meaningfully punish (and thereby discourage) disruptive and destructive conduct, such as defacing university property, interrupting classes, or disrupting university operations, such as a job fair. Unfortunately, some universities seem intent on making that mistake.
