Campus Intellectual Debate and the Heckler's Veto: Who Gets to Decide What is Unreasonable?

by Neil H. Buchanan
Late last week, Erwin Chemerinsky and Howard Gillman co-authored an important opinion column in The Washington Post: "Free speech doesn’t mean hecklers get to shut down campus debate."  As the law dean at UC Berkeley and the chancellor of UC Irvine, respectively, Chemerinsky and Gillman speak from the position of administrators.  But as respected scholars, they also speak from the viewpoint of professors, and they do so with great authority.
I thus was not surprised to find myself agreeing with their essential point, which is that "[f]reedom of speech does not include a right to shout down others so they cannot be heard."  Noting that some people defend those who shout down others by saying that the hecklers are themselves engaged in free speech, Chemerinsky and Gillman conclude that "[t]hat is wrong in terms of both the law and appropriate campus policy."
Again, I agree with the principle that there can be no heckler's veto in the context of discussions of ideas.  I do, however, see this as an opportunity to further clarify some points that I made in two columns last week, first on Verdict and then here on Dorf on Law.  In those columns, I argued that people are allowed to be disagreeable in the public square, and (in response to a fatuous formulation offered by the editors of the New York Times), I noted that there is nothing wrong with people being "shamed and shunned" for saying things with which others disagree.  That, I said, is precisely what Brandeis's "the response to bad speech is more speech" concept is all about -- because the right to speak does not include the right to be agreed with, or even to be listened to.

But wait.  Is that not what worries Chemerinsky and Gillman?  No, and it is useful to explore why there is no inconsistency here.

I should start by observing that the world was recently given a great example of what is absolutely not acceptable in civilized society.  As nearly everyone now knows, this past Sunday night's Oscars ceremony was ruined by a shocking display of violence, in which the actor Will Smith attacked the comedian and actor Chris Rock, responding to Rock's words by committing assault and battery.  That some people are defending Smith by arguing that he "slapped" Rock rather than punching him is depressing (and completely misguided, given how damaging a hard hit with an open hand can be), and it is worse when they justify it by saying that Smith was merely defending his wife.  Talk about toxic masculinity!

And it is even more ridiculous when one considers what Smith was defending his wife from: a weak, dated joke about a movie in which a female character shaves her head.  Jada Pinkett Smith's head is currently shaved because of a medical condition, which means that the joke was unfunny to her (even though the tape shows that it was initially funny to her husband), and that makes the situation very sad and unfortunate.  But Smith's "defense" of his wife in response to what was at worst a tasteless joke certainly should not have involved physical contact.

That much should be obvious (but apparently is not).  Even so, where does that fit into the campus context, where the argument in favor of open discussion hinges in large part on the nature of the educational enterprise?  That is, it would be bad in general if people in entertainment venues were prevented from speaking their minds and making their own creative choices (and it would be a violation of the First Amendment if the government infringed upon those rights), but we in the academy affirmatively want people to be exposed to ideas with which they disagree.

In either context, we should all at least be able to agree up front that physical attacks are unacceptable.
Indeed, when a controversy erupted five years ago after students at Middlebury College disrupted a guest speech by Charles Murray, my partial defense of the students' actions in a column here on Dorf on Law in no way involved a defense of violence but only of their right to protest the speech peacefully.
My primary goal in that column was to confront the idea that refusing to listen to a disagreeable person is proof of a closed mind.  That claim is superficially appealing, but it is utterly simplistic -- even on a college campus that is supposed to be devoted to the exchange of ideas.
In part, that is because it is far too easy to claim that everything that happens on a college campus must adhere to the highest standards of open debate and earnest engagement with ideas.  In particular, scolds become quite exercised about students who protest commencement speakers, as if a celebration of a rite of passage is the time and place where students and their families should be forced to listen to a potentially toxic speaker.  Universities that want to bring in politicians or others are free to try, but there is nothing "anti-free speech" about stakeholders saying: "Wait a minute, you invited him?!  Why are you ruining our day?  Please get someone else."

The Middlebury event was not a commencement ceremony, but it was most definitely a special event that involved extra efforts by the college to give a platform to a speaker who -- to put it kindly -- has an embarrassing record of intellectual laziness and outright hackery.  The tut-tutting response is to say that "these kids should have been willing to listen, engage, try to persuade, and possibly learn from the guest speaker," which sounds very nice.  It would be more convincing if there were any reason to believe that Murray has anything of intellectual value to contribute, or that he was willing to engage in good-faith debate.

Even with a less embarrassing guest speaker, however, there is nothing unusual or wrong about people responding negatively to an invitation being extended to someone whose views are unwelcome.  Indeed, any process that winnows down the list of thousands of potential guest speakers at any event is going to include substantive judgments about whether any given speaker is "worth" bringing onto campus.  If a college were, for example, to poll its students about whether a particular speaker should be invited, few would argue that it was an "attack on free speech" for students at a Christian college to refuse to invite anti-religion provocateur Bill Maher, or even someone from the Freedom From Religion Foundation who does not mimic Maher's sneering affect.

In a followup to my Middlebury piece, I discussed an email that I had received from Professor Dorf, who pointed out that the Middlebury students had at the very least gone too far:
Protesting outside a speech is surely fine, and a protest—even a temporarily disruptive protest—inside a speech can be justified. But even when the university has made a terrible choice to bestow what is in effect an honor on a terrible person saying bullsh*t, I think a commitment to free speech means that after the short disruption concludes, the protesters should permit people who want to hear the speaker do so—by marching out or even by getting arrested if that is their preference.
I agreed with that statement then, and I agree with it now.  This distinction, however, makes it obvious that there is a very blurry line here.  When is it too late to protest?  While the invitation committee is meeting, students (or faculty or staff) should be able to show up and say who should not be invited.  After a person is selected for an invitation, it should be permissible to protest or otherwise try to persuade decision-makers to change course.  After an invitation is extended, I see nothing wrong with continued protests.  When is it too late?  When the person books his plane ticket?  When he arrives on campus?  The second that he opens his mouth to speak?

I will emphasize again here that I am presuming that the protests and objections are peaceful.  Violence is categorically different from picketing, protesting, chanting, marching, and so on.  Even there, however, things are not as clean as they might seem.  If Will Smith had swung at Chris Rock but stopped his hand one millimeter away from Rock's face, that would still be intimidating as hell.  If a student protest begins to seem out of hand, the threat of violence can cause people to change course out of fear rather than having been persuaded.  I am thus not saying that anything short of actual contact is acceptable.  These are old arguments, but they are still difficult calls to make.

Chemerinsky and Gillman refer to "[t]wo recent incidents at law schools where protesting students sought to keep invited speakers from addressing their audiences," calling this "deeply troubling."  In one incident, at UC Hastings, students protested when Ilya Shapiro -- he of "lesser black woman" infamy -- tried to speak, and the event was ultimately shut down.  In the other, at Yale Law School, students protested but the event went forward.

Chemerinsky and Gillman seem equally concerned about both incidents, but there is the rather important distinction that one event went forward while the other did not.  Per Professor Dorf's formulation, the students can do things like turn their backs, make their point of view clear, and even make it necessary to arrest them.
I should add that it would be a bit easier to share the concern that this is an affront to free academic inquiry if the events were not so obviously contrived by conservative organizers to generate exactly the pushback that we saw.  This is, in other words, not a matter of conservative students and professors honestly wishing to spark lively debate on campus.  It is a matter of "owning the libs," deliberately triggering the responses that the liberal students were not able to stop themselves from providing.  One could be forgiven for thinking, at this point, that inviting Shapiro to any law school event is not about listening to Shapiro but about deliberately provoking the "snowflakes."

Even in cases where that is not happening, however, the essence of the problem is not that there is a reasonable argument in favor of a heckler's veto but that even labeling something a heckler's veto itself ends up being a surprisingly difficult line-drawing problem.  If Will Smith had walked up on stage and stood (non-menacingly) next to Rock and said, "Hey Chris, maybe you should try telling jokes that are actually funny," is he engaging in a heckler's veto?  What if he starts to tell a bunch of very funny jokes at Rock's expense?  What if Denzel Washington had tried to get him to return to his seat, but Smith replied: "Nah, Chris wants to have fun, so I'm here to have fun"?
In all of those instances, Smith without question would have hijacked the proceedings, stopping Rock from saying what he had originally planned to say.  What if Smith had stayed in his seat and literally heckled Rock?  When would enough be too much?  I am keenly aware that line-drawing arguments can be abused, but my point here is not to say that anything goes whenever there is no clear stopping point on a slippery slope.  I am, however, saying that the statements from Chemerinsky and Gillman with which everyone can agree are not clear, self-executing principles.

Ultimately, it strikes me that many of these "deeply troubling" incidents are not in fact examples of unacceptable heckling but are instead revelations about our differences in viewing different speakers as more or less objectionable.  A professor who invited a neo-Nazi to speak to his class and admonished his students to listen respectfully while that speaker called for their families to be exterminated would rightly be condemned, even by people who think that robust debate on campus is a good thing.  Some things are "too far," even for most (all?) committed civil libertarians.
I happen to agree that protesting Shapiro needs to be kept within bounds, but that is in large part because I do not feel any personal sting from his mindless assumption that black women are per se inferior.  To be clear, I absolutely disagree with him, but I cannot know what it is like to be othered in that way.  I am, however, trying to expand my ability to put myself in another person's shoes and imagine how othered people feel.

I do not mean to point the finger at Chemerinsky and Gillman specifically, but I do have the nagging sense that old guys have the feeling that "kids today" have become too sensitive, which is because the old guys draw lines at different places.  Get off my lawn!
A female colleague told me that her crim law class at one point became very contentious when a male student responded to a spousal abuse case by saying (obviously to be obnoxious, but still quite seriously): "Well, the b-tch deserved it."  It is far too easy for someone like me to say to the students who were horrified by this: "Hey, you'll hear worse in court.  Grow up and thicken your skin!"  But even though my position in a literal sense makes me the arbiter of what people need to "get over" and what they do not need to waste their time studying, I ought to try to remember that different people can reasonably view things in very different ways.  After all, they might someday also be in court listening to someone approvingly quote a Ku Klux Klan manual, but I doubt that any of my colleagues would invite a Klansman to advocate White Christian supremacy "respectfully" in class.

Far from devolving into radical self-doubt, however, I think the bottom line here is that we like to think that things like heckler's vetoes are much simpler, more clear-cut concepts than they actually are.  I do agree that students need to be exposed to uncomfortable and disagreeable ideas, but I am not as confident as others seem to be that we know what it means to be overly sensitive.  We will continue to draw lines, but we should admit that they are much more arbitrary than we might like to believe.