Say it again for the people in the back: Freedom to speak includes the freedom to hear

July 19, 2017

On April 6, 2017, conservative author and Manhattan Institute scholar Heather Mac Donald arrived to speak at Claremont McKenna College, a small liberal arts school that is a member of the Claremont Colleges in Claremont, California. Her speech did not go as planned. One hundred seventy people — CMC-ers, students from other Claremont schools, and some outsiders — blockaded the Marian Miner Cook Athenaeum, where Mac Donald was scheduled to give her talk, banging on the windows and preventing the students and faculty who signed up to attend the talk from entering. College administrators determined that the situation was too volatile to allow the speech to go on as scheduled, and fell back on a contingency plan to livestream the talk. Protesters also occupied the fourth floor of the Kravis Center, where the Rose Institute of State and Local Government, which brought Mac Donald to campus, is located.

CMC president Hiram Chodosh published a statement the next day expressing his disappointment with the reactions of the protesters and promising to hold accountable those who prevented Mac Donald from being heard. As we wrote yesterday, CMC did just that when it sanctioned seven of the students involved, suspending five of them.

Not everyone was satisfied with that result, including Nana Gyamfi, an attorney for the punished students. In an interview with Inside Higher Ed, she described the protest as “warranted” because of Mac Donald’s views, and boldly proclaimed that “there is no right to hear someone speak.”

FIRE takes no position on whether the protest was “warranted.” Students have a right to nonviolently protest a speaker, so long as the speaker is still allowed to be heard. The answer to bad speech is more speech, and a peaceful protest is the quintessential example of more. But Gyamfi is dead wrong about the lack of a right to listen.

Dissenting in Kleindienst v. Mandel (1972), United States Supreme Court Justice Thurgood Marshall observed that “[t]he freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin.” Justice Marshall was defending the right of American social science professors to hear the speech of Belgian academic Ernest E. Mandel, who been scheduled to appear at several academic conferences in the United States. Mandel had written books about Marxist economic theory and described himself as a “revolutionary Marxist.” Those views were not widely popular in the late 60s and early 70s, and were a statutorily sanctioned reason to deny someone admission to the United States, so Mandel was told he could not enter the country.

The majority in Kleindienst recognized that there was well-established legal support for the “right to receive” ideas. Many cases — Stanley v. Georgia (1969) (“It is now well established that the Constitution protects the right to receive information and ideas.”); Thomas v. Collins (1945) (“That there was restriction upon Thomas’ right to speak and the rights of the workers to hear what he had to say, there can be no doubt.”); Red Lion Broadcasting Co. v. FCC (1969) (“It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.”) — were cited to support this proposition.

Where the majority diverged from Justice Marshall’s pithy statement in his dissent was what bearing the First Amendment should have on Mandel’s right to enter the country. The majority held that the executive should have broad authority to deny admission to those seeking to enter; Justice Marshall saw the First Amendment as being more important than that broad executive authority. Justice Marshall’s statement about “two sides of the same coin” draws support from the legal and philosophical reasoning behind the First Amendment. I quoted Frederick Douglass yesterday: “To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker. It is just as criminal to rob a man of his right to speak and hear as it would be to rob him of his money.”

The legal maxim recognized by Justice Marshall in his dissent and by Justice Blackmun writing for the majority of the Court holds true: the freedom to speak requires the freedom to hear.

Accordingly, Gyamfi is wrong to argue that there was no problem with the students’ actions. She asked rhetorically: “What free speech rights did the students prevent? Did they jump up in her speech? Did they grab her and pull her aside?” These questions are answered easily. The students tried as hard as they could to prevent Mac Donald from being heard when they blockaded the Athenaeum, broke past police, and forced the speech to be livestreamed. That is the free speech right the students prevented. By preventing the audience from getting to the speech in the first place, the protesters didn’t need to “jump up in her speech” or “grab her and pull her aside.” By Gyamfi’s logic, no restriction imposed in anticipation of a speech could ever be a problem. That reasoning just doesn’t square with established First Amendment precedent.

Returning to Kleindienst, the government actually advanced a similar argument: because academics interested in hearing Mandel’s ideas could easily listen to a tape recording or read his books, there was no First Amendment violation by denying him entry. But the Court shot that argument down, saying it “overlooks what may be particular qualities inherent in sustained, face-to-face debate, discussion and questioning.” The Court continued: “[W]e are loath to hold on this record that existence of other alternatives extinguishes altogether any constitutional interest on the part of the [academics interested in hearing Mandel] in this particular form of access.”

Gyamfi is at least partially correct that Mac Donald’s First Amendment rights were not technically violated by the students — they are not government actors, and the First Amendment constrains only the government. But if we’re talking about the principles undergirding the First Amendment, and we are, expressive rights were violated by the students’ blockade. It prevented the students, faculty, and staff who signed up to hear Mac Donald from being able to listen and engage with her ideas in person, an opportunity the Supreme Court has recognized to be of utmost importance.

When you block a speaker from being heard, you prevent people from being able to thoughtfully engage with that person and work toward finding truth. Such action is an outright denial of basic free speech principles, and an outright rejection of the purpose of higher education.