Coercive Speech

Much of the public attention recently paid to the campus protests seeking divestment from Israel-linked businesses (and, at some universities, the abolition of joint academic programs with Israeli institutions) has focused on the sometimes-realized potential for conflict between the protesters’ right to free expression—which generally includes a right to say provocatively offensive things—and the Title VI obligation of colleges to avoid permitting their campuses to become a hostile environment for Jewish students. In a Verdict column on that topic last month, I offered some preliminary thoughts. I’ll expand on them in an essay I’m currently writing for a festschrift issue of Constitutional Commentary in honor of Professor Eugene Volokh, whose (extraordinarily large and high quality) volume of work includes substantial attention to the tensions between free speech and anti-discrimination law.

In addition to the Constitutional Commentary essay, I shall no doubt revisit the speech/equality question in additional writing here and/or on Verdict, but for now I want to pivot to a different set of issues that relates to the current campus encampments. I do so partly to clarify my own thought process, as I am now serving on a university-wide committee tasked with recommending clarifications of and/or changes to Cornell’s policies. Because that work will extend at least into the early fall, it is forward-looking. The encampments currently on university campuses are relevant to the discussion but only as one potential instance of a phenomenon I’ll call coercive speech.

Much speech aims to change the behavior of people with power. It can do so in a number of different ways. It could provide them with facts. (E.g., one might seek legislation curbing greenhouse gas emissions by pointing to the overwhelming evidence of human-caused global warming.) It can make an argument. (E.g., a lawyer might ask a court to overturn an outdated precedent by pointing to inconsistencies with other, more recent precedents.) It can appeal to empathy. (E.g., protesters against Israel’s war in Gaza could display pictures of orphaned Palestinian children suffering malnutrition; counter-protesters could display pictures of hostages held by Hamas.)

In each of the foregoing examples, the speech is effective, if it is, through a process mediated by persuasion. Responding to facts, arguments, emotions, or some combination thereof, some members of the audience for the speech change their minds about something and thus change how they think about how they should act. Whether a lawyer is trying to persuade a judge to rule for the lawyer's client or an animal rights activist is trying to persuade someone who has come by the activist's table at the farmers' market, in each case the route to changes in action goes through changes in beliefs about what is normatively appropriate. That is essentially what we mean by persuasive speech.

Not all speech aims to change anybody's mind or conduct. Sometimes people engage in speech for its entertainment value or simply for speech's sake. Other times people speak in ways that aim to change other people's conduct but through a kind of coercion, albeit coercion typically combined with speech.

The factory owner who agrees to raise striking workers' wages or provide them with improved working conditions need not be convinced that they're in any normative sense entitled to those things; rather, the owner comes to realize that refusing the workers' demands indefinitely will be more costly than giving in. To be clear, in saying that a strike is coercive, I am not saying that workers should not have a right to strike. The ability to strike gives workers bargaining power, which I support.

A strike, as a refusal to engage in a form of economic activity, is not itself a form of expression--although strikes are very frequently accompanied by speech that aims to persuade third parties of the justice of the strikers' cause and thus increase pressure on the strike's target enterprise (perhaps because some of those third parties are customers of the strike's target enterprise). So what I'm calling coercive speech might really be thought of as a combination of speech that aims to persuade some people and coerce some people.

It's possible for there to be overlap between the targets of coercion and the targets of persuasion. The encampments are a useful illustration. Occupying space on a college campus is not inherently expressive, although it is usually done for expressive purposes in what the free speech case law calls expressive conduct. Students have erected tents to express solidarity with Gazans displaced from their homes. There is also a leading Supreme Court case involving an encampment on the Washington Mall in which the protesters sought to call attention to the plight of unhoused people. Presumably the students organizing the campus encampments hope to persuade university administrators of the justice of their cause, and the people camped on the Mall hoped to persuade the Reagan administration of theirs. But persuading the authorities directly is not essential to the project. Protesters and strikers can accomplish their goal by generating public sympathy that in turn generates political pressure on the people with the power to grant the protesters what they want.

Is there anything problematic about that kind of coercion? To my mind, much pure speech is coercive in the sense I've just described. If the organizers of a completely legal rally turn out huge throngs of supporters for their cause, the rally can have its impact through "coercive" rather than persuasive means.  A member of Congress who thinks that, all things considered, she should take a vote for some measure--to authorize a war, cut the budget of some agency, confirm a Supreme Court nominee, whatever--could change her mind after seeing a mass of constituents in the street demonstrating that they are on the other side of the issue and care deeply about it. The member of Congress would be coerced in the sense that she was not persuaded, but that seems perfectly acceptable, indeed, even essential, in a representative democracy.

To be clear, the Washington Mall protesters lost their SCOTUS case because the Court found that the government was entitled to enforce a content-neutral camping regulation that the protesters were violating. So too, administrators at public universities bound by the First Amendment of its own force or at private ones that abide First Amendment norms are also entitled to enforce reasonable content-neutral rules governing use of public spaces. Whether that's what they're doing in clearing the pro-Palestinian encampments is a separate question to which the answer may differ on different campuses.

It's useful to distinguish the question whether there is a free speech right to engage in any particular expressive action from the question whether that action is problematically coercive. If protesters occupy a museum and threaten to destroy priceless works of art if the authorities don't meet their demands, that would be direct coercion that cannot be redeemed in virtue of the fact that the protesters are also trying to make a point. By contrast, some cost is a likely side effect of any large-scale protest. Marches lead to litter. Encampments damage the grass. Etc. But those are not the main pressure point, as it is with the hypothetical museum protesters.

Therefore, my tentative conclusion is that the term "coercive speech" should be reserved for what are essentially threats to cause harm. So long as peaceful protesters aim to achieve change by growing or demonstrating the number of people who hold their views, they are engaged in speech that is unproblematic--at least from the perspective of coercion (even if authorities have grounds to regulate it through reasonable time, place, and manner rules).