If recent events at Stanford have taught us one thing, it’s that shouting down a speaker is a great way to have your objections to the speaker’s views become an afterthought to the disruption. Wayne State University Professor Steven Shaviro had the same thought and took to Facebook to share his views in a controversial post.
Then his university suspended him.
On March 24, Shaviro used his personal Facebook account to criticize protestors who shout down speakers with purportedly bigoted views, writing “it is far more admirable to kill a racist, homophobic, or transphobic speaker than it is to shout them down.”
He mused about the media circus that follows when campus protestors shout down a high-profile speaker, ultimately distracting from the protestors’ cause. He concluded the post with a reference to Sholem Schwarzbard who Shaviro said exemplified this idea. Rather than shouting down the man Schwarzbard blamed for his family’s death, Schwarzbard shot him instead.
Whether taken at face value or read as oblique commentary on shouting down speakers, Shaviro’s post is squarely within the scope of the First Amendment.
On March 27, Wayne State University President M. Roy Wilson sent a university-wide email condemning Shaviro’s post, writing that the post “far exceeds the bounds of reasonable or protected speech,” and that it is “at best, morally reprehensible, and, at worst, criminal.” The university immediately placed Shaviro on paid suspension and referred his post to law enforcement.
FIRE wrote Wilson the next day, informing him that Shaviro’s post, while provocative, is not unlawful. We also connected Shaviro with attorney Matt Hoffer of Shafer & Associates, P.C., through our Faculty Legal Defense Fund.
Shaviro’s post is not a true threat. This narrow category of unprotected speech, described by the Supreme Court in Virginia v. Black, includes only speech where “the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”
In Watts v. United States, the Supreme Court explicitly exempted heated political rhetoric from this definition. Although Watts, an anti-war protester, used violent themes to criticize then-President Lyndon B. Johnson (“If they ever make me carry a rifle the first man I want to get in my sights is L.B. J.”), his speech did not fall within the definition of a true threat.
Shaviro’s commentary similarly fails to meet this definition. As we wrote in our letter:
Shaviro’s post, likewise, may have been “crude [or] offensive” to some. Yet his statement that it is more admirable to kill “a racist, homophobic, or transphobic speaker” than shout them down is hypothetical and not directed at any person in particular, nor does it constitute a sincere expression of intent to undertake violence.
Nor can his post be considered unlawful incitement, which, per the Supreme Court held in Brandenburg v. Ohio, is limited to speech “directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action.” As our letter clarified:
Shaviro’s post, while musing on when violence might be more justifiable than censorship, was not “directed to” calling for others to take unlawful action, or likely to result in imminent unlawful action. And even if he could be said to be encouraging others to act violently in certain scenarios, the “mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment
We understand universities like Wayne State must take concerns of violence seriously, whether related to protests and shout downs, or in the context of campus safety at large. However, Shaviro’s post was clearly hyperbolic.
With his post, Shaviro joins a legacy of public figures who have used political speech to weigh the merits of violence, including the likes of Thomas Jefferson and Malcom X. Discussing the use of violence — or even advocating it — without more, does not strip speech of its First Amendment protections.
Whether taken at face value or read as oblique commentary on shouting down speakers, Shaviro’s post is squarely within the scope of the First Amendment. FIRE calls on Wayne State to reverse Shaviro’s suspension.
FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re a faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533). If you’re a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).
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