Friday, February 26, 2016

Lessons From Milbank's Non-Censorship of Harvard Student Speech

by Michael Dorf

An "Open Letter to the Law School Community" from various law students and legal scholars expresses concern about the Milbank law firm's withdrawal of funding for student activities at Harvard Law School following complaints to the firm that the firm's name appeared as a funder of an event at which controversial positions were going to be espoused. I share the view of the signers of the Open Letter that outside funders should not be able to use financial leverage to stifle free speech on campus. I also have great respect for many of the Open Letter's signers, including various of my current and former distinguished colleagues. Nonetheless, I think the letter incorrectly describes Milbank's actions as tantamount to censorship.

I'll begin with a very brief summary of the facts as described in stories in the Harvard Crimson and New York Times. In 2012, Milbank pledged to give HLS $200k/year for five years to support various student activities, with the particular allocations to be decided by the law school. A condition on the gift was that student events underwritten by Milbank funding would acknowledge that funding publicly. Last fall, a student group called Justice for Palestine hosted an event addressing the concern that pro-Palestinian viewpoints on the Israel/Palestine conflict are systematically disadvantaged. As per the conditions of the grant, the promotional materials acknowledged Milbank's support ($500, which was used for pizza). An outside pro-Israel group saw the promotion on Facebook and complained to Milbank, which, through the law school, requested that the firm name be taken off of the promotional material and then decided that it would not fulfill the original terms of the pledge for the remaining years, agreeing with HLS that Milbank funds would instead be used to support other HLS activities. For the balance of this academic year, and presumably for future years, HLS is replacing the Milbank funds with other funds at the same total level--although according to the Crimson story, the allocations differ somewhat. The current-year funding for Justice for Palestine was not diminished.

The Open Letter makes the following declaration:
It is unacceptable for a law firm to provide a general gift to a law school to support student events – intended to be administered by law school staff - and then seek to exercise control over the content or viewpoints being expressed by students that seek funding from that general fund.
I agree, but I see no evidence, and the Open Letter cites no evidence, that Milbank in fact sought to control the views expressed by students at fund-supported events. Milbank did not initially exercise any control over which groups were funded or at what levels. And when Milbank redirected its future HLS funding, it did not redirect its funding away from Justice for Palestine in particular or only from student groups whose viewpoints it did not share. It redirected funding away from all student groups. Because Milbank had no legal or other obligation to fund student activities at HLS, its failure to fund them in the future can hardly be called censorship. Indeed, because of the fungibility of money, it is hardly obvious that the redirection of Milbank funds (presumably to activities that would have cost HLS money otherwise) and their replacement with other funds even amounts to a withdrawal of Milbank funding.

Indeed, despite the reporting in the Crimson and the New York Times, it is not even clear that Milbank sought the re-directing of funding for the current year. A letter from Milbank partner Thomas Arena (graciously posted by Prof. Brian Leiter, who signed the Open Letter) states that Milbank did not even request that its current-year funding for any student group be replaced by HLS funds, while its funds went elsewhere. Arena argues--seemingly without contradiction--that Milbank's only concern has been that it does not want the public to get the false impression that it is taking a position in favor of student speech its grant to HLS was supporting, given the wide variety of viewpoints that students will inevitably espouse.

Thus, to my mind, there is no issue of censorship or even of chilling speech presented by the actual facts of this dispute. The Open Letter does, however, raise interesting and important questions more broadly.

Note the qualifier in the language I quoted above from the Open Letter: It is unacceptable for a law firm (and presumably any outside funder) to exercise content or viewpoint control in granting funds "intended to be administered by law school staff." Why that qualifier? Presumably because the authors and signers of the Open Letter recognize that it is acceptable--or at least widely accepted--for outside funders to exercise content or viewpoint control in granting funds that are not administered by law school staff. For example, the national Federalist Society and American Constitution Society provide funding to their respective student chapters but not to other organizations expressing different viewpoints.

To be sure, both Fed Soc and ACS frequently sponsor debates and other events at which diverse viewpoints are expressed, but no one thinks that they are obligated to do so, and their events typically have a dominant perspective. If a Native tribe wanted to donate to Harvard's Native American Law Student Association, the fact that it wasn't donating money to other student organizations would raise no free speech issues. If a union-side labor law firm donated to Harvard's Labor & Employment Action Project--whose activities include "activism where we see a need to lend our voices to local or national struggles"--that would not be censorship of anti-union student speech. So I agree with the Open Letter's tacit acceptance of the proposition that outside groups, including law firms, can choose which student activities to fund based in part on the content and viewpoint of the student groups.

Now to a somewhat harder question. I said above that I agree with the Open Letter's claim that outside funders shouldn't be able to exercise control over the content and viewpoint of student groups where the funds are administered by the law school. That's why I might have signed the Open Letter if it had been based on an accurate account of what actually happened at Harvard. But I want to be clear why I agree that outside groups shouldn't be able to control the content and viewpoint of student speech subsidized by funds administered by the law school: It's because they are outside groups, not because student groups have a right to receive law school funding without any regard to the content or viewpoint of their speech. I do not think there is such a right, at least not an absolute one.

Harvard is not a state actor, and so the First Amendment does not limit its actions. If Harvard were a state actor, and if its student activities fund were deemed to be a limited public forum it had created, then it would be permitted to select which activities to fund based on the purpose of the forum (content lines) but not based on the viewpoint of the students. That's the holding of the Rosenberger case. I'm not sure the SCOTUS would really follow this rule in an extreme case. Would the Justices really say that a public university cannot deny funding to, say, a student chapter of the Ku Klux Klan? In Christian Legal Society v. Martinez, the majority avoided this kind of question by characterizing UC-Hastings Law School's "all-comers" policy (under which student groups had to be open to any student who wanted to join) as viewpoint-neutral, and thus only incidentally burdening the expressive association of the plaintiff group. But, in any event, these precedents are only relevant insofar as they are persuasive, because, as noted, Harvard is a private actor.

As a matter of their own institutional values, should private universities adopt a rule of viewpoint-neutrality in funding student organizations? My view is "yes, up to a point." On matters of remotely reasonable contestation, commitments to free speech and academic freedom should translate into the university promoting broad debate. However, universities also aim to be inclusive communities, and the expression of some viewpoints that are protected by the First Amendment against government censorship need not be subsidized by a private university (and in an extreme case might even be the basis for discipline). A student group that cannot plausibly be characterized as promoting anything other than racial or ethnic hatred could be denied funding by a private university committed to both free speech and inclusion.

But that exception really ought to be reserved for extreme cases. Thus, although pro-Palestinian groups frequently equate Zionism with racism, and pro-Israel groups frequently accuse Israel's critics of anti-Semitism, nearly all speech on the Israel/Palestine conflict should fall comfortably within the heartland of remotely reasonable contestation. At least based on their self-descriptions on the Student Organizations at HLS webpage, both Justice for Palestine and Alliance for Israel would merit funding under an appropriate policy that forbids funding for what we might loosely call hate-speech.