Do free speech and free assembly matter anymore?
During the 2019 ABA Annual Meeting in San Francisco I participated on a panel "Suppressing Public Protests in America: Do Free Speech and Free Assembly Matter Anymore?"
Below you can find my full remarks from the August 9 meeting:
Free Speech on College Campuses
Free speech has long been an issue on the nation’s university campuses. The Free Speech Movement across the Bay at UC Berkeley in the 1960s made international news. Revered in many corners, the movement today holds iconic status in the national imagination. In essence, students challenging the Vietnam War took to the streets en masse and demanded respect for their First Amendment rights. In Berkeley, that literally meant resistance to tanks on Telegraph Avenue.
Free speech again is a hot issue on college campuses today. The most controversial speakers on campuses today – at least those attracting national attention – often, but not always, have been conservative. Violence, including recently in Berkeley, has resulted in a number of instances as conflict between warring political ideologies hit a fever pitch. Protests and counter protests in Charlottesville in 2017 in response to the removal of statues honoring Confederate soldiers show the potential for violence, tragedy, and chaos.
Today, the costs of ensuring safety of the campus community – of facilitating free speech – can be formidable. For example in 2017, UC Berkeley was to be the site of a conservative Free Speech Week, featuring among others, Milo Yiannopoulos, a controversial and to many offensive, conservative speaker. A student group organized the event.
Although the students ultimately decided to cancel this week of conservative speakers, UC President Janet Napolitano promised that the central Office of the President would help UC Berkeley with the costs of security, which would likely have amounted to hundreds of thousands of dollars. As Napolitano emphasized, “It’s a cost that the university is bearing to protect the speakers but also to protect the value of free speech.” Some object to public monies being spent in this way or at least think that there should be limits on the expenditures.
As this event suggests, free speech on campus raises a complicated set of issues. Erwin Chemerinsky and Howard Gillman’s book Free Speech on Campus (2017) speaks to these issues, falling squarely on the side of a robust conception of free speech and a narrow view of what kind of expression can be restricted.
College administrators, especially at a public university, have a variety of practical issues to consider when it comes to free speech, public protest, and conflict between angry students and members of the community. I can speak with some experience on those issues, having chaired two campus committees of faculty, staff, students, and campus leaders seeking to address freedom of expression issues on the UC Davis campus. Much of the time was spent on educating the committee on the speech protections of the First Amendment, as interpreted and applied by the U.S. Supreme Court. The education included discussing the constitutional protections for speech, the obligation of the prohibition of the university as a public entity to not discriminate based on the content of speech, and the university having the authority under Supreme Court decisions to engage in reasonable time, place, and manner regulations of speech. Two of the recurring issues of discussion on those committees were (1) opponents of a speaker disrupting events involving people whose ideas they oppose; and (2) a desire to regulate “hate speech” directed at people of color.
To give an idea of the complexities, consider some of the players in the free speech debates:
Free Speech Advocates encourage free expression and create places for the robust exchange of ideas. In my experience, few campus administrators would disagree. Many of the administrators are children of the 1960s and experienced a time when government and universities sought to stifle dissent.
Proponents of Hate Speech: A group of students, including many students of color, on campuses call for bans on “hate speech.” Such regulations face formidable First Amendment challenges, including, most fundamentally, how to objectively and clearly define “hate speech.” As a result, enforcement of some kind of hate speech code would be challenging. At the same time, universities have an obligation to ensure a supportive learning environment for all students, including minority students who are underrepresented at the university.
University Administrators: Besides protecting freedom of expression, Universities have an obligation to ensure the safety and security of the students. Parents of our students understand and take this obligation most seriously. Whether we like it or not, in the political climate in which we live today, some speakers may spur violent resistance. Preparation to protect student safety is critically important.
I tend to see campuses as more tolerant of free speech than critics proclaiming that free speech at our universities is in “crisis” and that conservative voices are stifled. Still, we have seen, and will see, sporadic free speech controversies.
To this point, I have not talked about academic freedom for professors. But such freedom can at times generate controversy. The latest academic freedom fracas involves Professor Amy Wax of the University of Pennsylvania Law School. More than 1,000 people, including many Penn Law students and alumni, signed a petition calling for Professor Wax to be relieved of her teaching duties or fired. The outcry comes after she reportedly told attendees at the National Conservatism Conference that the United States should favor immigration from Western nations over all others. (She previously sparked controversy by claiming that she never saw an African American student at Penn Law who excelled academically.). Although Professor Wax is not an immigration scholar, she attributed an increase in litter to immigrants and opined that the country would be “better off” with more white immigrants. President Trump at various times has said basically the same things.
In addition to the demand that Professor Wax no longer teach at Penn, the petitioners demanded the school to denounce her comments and hire more minority professors. The dean of Penn Law released a statement saying that Professor Wax did not speak for the school and criticized her views.
Free Expression in Immigration
Another area in which free expression has recently arisen is immigration. One of the most exciting social justice movements in recent years has been the immigrant rights movement. Undocumented immigrants, particularly young people, have become increasingly politically active. The recent spate of activity could be seen as beginning in 2006, with mass marches in cities across the country protesting a tough immigration bill passed by the House of Representatives.
The DREAMer movement has grabbed the national imagination and transformed the nature of the current debate over immigration. Rather than residing “in the shadows,” many young Dreamers have been active in protests and political activity for immigration reform.
There long has been debate about the free speech rights of immigrants. Do undocumented immigrants have the same free speech rights as U.S. citizens? Can they be removed from the United States for political speech? We have a history of deporting politically unpopular legal immigrants, such as communists, anarchists, and today “terrorists,” which can include noncitizens who provide money to certain designated political groups. The immigration laws broadly define “terrorist activity.” More generally, parts of our immigration laws continue to be in tension with the First Amendment.
There also have been claims of selective enforcement of the immigration laws to punish political dissidents. Last year, after being taken into custody by Immigration and Customs Enforcement (ICE), Ravi Ragbir was ordered released by the courts, following an outcry from elected officials, advocacy groups, and others. The U.S. Court of Appeals for the Second Circuit ruled that Ragbir cannot be deported for now because it is possible ICE tried to silence his immigration advocacy by deporting him.
Claims have been made that the Trump administration has more generally used the deportation laws to remove politically active immigrants, including DACA activists. The Supreme Court has held that the U.S. government has broad discretion in deciding which immigrants to remove from the United States. In Reno v. Am.-Arab Anti-Discrimination Comm. (1999), the Court rejected a claim that the INS was selectively enforcing the immigration laws against them in violation of their First and Fifth Amendment rights. The noncitizens had given money and distributed leaflets endorsing “terrorist organizations” and leafletting. The Court would “not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous” that it might appropriately be considered. However, “[w]hen an alien’s continuing presence in this country is in violation of the immigration laws, the Government does not offend the Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity.”
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On college campuses and in our political sphere, free speech is a subject of fervent debate and controversy. That long has been the case in U.S. history and will not likely change anytime soon.