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Thoughts on the Senate Committee on the Judiciary hearing on campus free speech

By June 23, 2017

This has been a big week for freedom of speech. On Monday, the Supreme Court of the United States unanimously ruled in Matal v. Tam that the First Amendment prohibits the U.S. Patent and Trademark Office from denying trademark registration for the name of Simon Tam’s rock band, The Slants, on the basis that it allegedly “disparages” Asians. Then, on Tuesday, the Senate Committee on the Judiciary held a hearing titled “Free Speech 101: The Assault on the First Amendment on College Campuses,” to put a spotlight on campus censorship.

The hearing featured an impressive list of witnesses, including Isaac Smith, a law student at the University of Cincinnati College of Law who is interning with us this summer; Williams College student Zach Wood, who is a member of FIRE’s Prometheus Society; UCLA School of Law professor Eugene Volokh; and famed First Amendment attorney Floyd Abrams, who delivered remarks at FIRE’s 15th anniversary dinner in 2014. We were delighted to see that the room was packed and the line to get in went out the door and around the hall.

If you didn’t get a seat at the hearing or watch it streaming live, you can check out the video of the full hearing here:

FIRE was pleased that there was broad consensus amongst the witnesses and the senators on the committee that freedom of speech on college campuses is of utmost importance. For example, in Chairman Chuck Grassley’s opening remarks, he powerfully explained:

Higher education rests on the free flow of ideas. Education requires that positions be held tentatively, tested by opposing arguments that are rationally considered and evaluated. All colleges therefore must protect free speech. Public institutions must adhere to the various guarantees of the First Amendment.

Too often, all of these fundamental principles have been under assault. Even worse, some people who have exercised their First Amendment rights have been themselves assaulted. As a result, those who would curtail free speech have been emboldened and those who disagree with the prevailing orthodoxy have been censored or chilled from speaking freely. There is no point in having a student body on campus if competing ideas are not exchanged and analyzed.

Sen. Richard Blumenthal emphasized that when evaluating the recent disruptions of speakers on campus that have in some instances turned violent, we would all benefit from returning to the rule of law. And Sen. Amy Klobuchar dedicated some of her time to focusing on the need to protect a free press.

The case for the importance of free speech on campus was also made by Sen. Ted Cruz:

Free speech matters. Diversity matters. Diversity of people’s backgrounds, but also diversity of thought, diversity of ideas. Universities are meant to be a challenging environment for young people to encounter ideas they’ve never seen, they’ve never imagined, and that they might passionately disagree with.

[…]

I’m one who agrees with John Stuart Mill: The best solution for bad ideas, for bad speech, is more speech and better ideas.

While there was broad agreement that free speech on campus is crucial, much of the conversation focused on a more difficult question of how institutions are to protect free speech on campus against threats of violence from some students and outside groups that might engage in criminal actions intended to prevent speakers with whom they disagree from delivering their remarks.

Here is a transcript of a key exchange between Sen. Dianne Feinstein, the ranking member of the committee, and Professor Volokh:

Feinstein: One of the problems that I have is that there is an expectation that the university handles it. The handling of it means that you have resources to be able to send, and those resources know what to do. Particularly for a public university, and particularly for the University of California, there is a constant battle with the legislature over money, so the resources are not always what they might be. Does anyone on the panel have an idea, if you accept what Mr. Cohen has said, how should a university handle this?

Volokh: If I can speak briefly to that, I appreciate the resource constraints. I teach at UC, we’re aware of the resource constraints. This having been said, while we’re fortunate to have [the] UC police department, we are also in a city, and perhaps . . .

Feinstein: But that’s Berkeley.

Volokh: Yes, and I would think that Berkeley police department would also be able and should be willing to lend police officers to help out. If we are in a position where our police departments are unable to protect free speech whether it’s universities or otherwise, then yes, indeed, we are in a very bad position. But my sense is …

Feinstein: Professor, let me just understand what you are saying. No matter who comes, no matter what disturbance, the university has to be prepared to handle it. It’s the problem for the university. That’s the argument you’re making. You’re making the argument that a speaker that might fulminate a big problem should never be refused. They ought to be able to come whatever the problem is, it ought to be handled.

Volokh: Senator, I’m always hesitant to say “should never.” There are extraordinary circumstances. What if somebody has planted a bomb?

Feinstein: To me the extraordinary circumstance is when people come in black uniforms and hit other people over the head. That’s an extraordinary circumstance.

Volokh: Right, and that cannot be enough to justify suppression of those who they came to try to suppress. It’s not just the university; it’s the government. It’s the job of the government — I’m not a big believer of large jobs for the government — but one important job for the government is to prevent violence. And to prevent violence without suppressing free speech. So, I do think that between the, let’s say my own UCLA, between the UC police …

Feinstein: You don’t think we learned a lesson at Kent State way back when?

Although some have pointed to this exchange as an indication that Sen. Feinstein does not understand the dynamic behind the heckler’s veto,  we disagree. Instead, we believe that this exchange highlights difficult questions in our  national conversation on effectively putting an end to substantial disruptions of protected speech without endangering anyone’s safety.

FIRE agrees with Professor Volokh that those who create substantial and material disruptions to the functioning of the institution or to someone else’s expressive activities must face proportional consequences. If institutions simply yield to those who threaten disruptions, they effectively reward that behavior, which will embolden it further. But we also agree with Sen. Feinstein that these situations need to be evaluated by law enforcement professionals on a case-by-case basis because there are some instances where proceeding with an event may pose too great a danger, and escalation of the use of police force may compound rather than alleviate the problem.

The good news is that federal courts have grappled with this issue and provided thoughtful guidance. For example, in Bible Believers v. Wayne County, the U.S. Court of Appeals for the Sixth Circuit held that before the government can stop those from lawfully engaging in expressive activity because of safety concerns created by those who threaten violence against the speaker, the government must exhaust reasonable actions to protect the speakers from the violence. This framework accounts for Senator Feinstein’s concerns and those that FIRE shares with Professor Volokh.  

What a court might consider reasonable in any particular situation will, of course, be very fact- and context-specific. The nature of the threat should be taken into account as well as the resources at the institution or government’s disposal available to respond to those threats.

Institutions that, in advance, cancel speeches in the face of threats instead of taking obvious protective steps would fail the Bible Believers test, as would institutions that cancel a speech in progress that sparks protests, instead of taking protective measures. But institutions that work to protect speakers in good faith will not be held liable if they have to cancel a particular event after those efforts have proven inadequate. It’s worth remembering that institutions and governments can also demonstrate their good faith by imposing reasonable, proportional sanctions on those who create material and substantial disruptions.  

Another important discussion during the hearing was initiated by Sen. Dick Durbin, who emphasized the importance of protecting unpopular speech in the context of a previously proposed amendment to the Constitution that would have created a flag burning exception to the First Amendment. Durbin noted that while he and others find flag burning deeply offensive, it is important that the First Amendment continues to protect speech, particularly when it is unpopular. Turning his attention to free speech on campus, the senator approached the issue as follows:

Should I be able to stop a speaker because I am offended? No. Mr. Lawrence, [a witness before the committee,] because I’m intimidated? I think yes. Should I be able to stop someone from speaking because he is unpopular? No. Because I find him menacing? Yes. Should I be able to stop someone who makes me uncomfortable? No. But should I be able to stop someone who I find threatening, menacing, intimidating? Where do you draw the line?  

These are of course important questions. And luckily, courts have provided the answers. In Healy v. James, the Supreme Court held that the First Amendment applies in full force on college campuses. The exceptions to the First Amendment also apply on public college campuses. When speech satisfies one of the narrow exceptions to the First Amendment set forth by the Supreme Court, like true threats (defined in Virginia v. Black) or incitement (defined in Brandenburg v. Ohio), or constitutes misconduct like student-on-student harassment (defined in Davis v. Monroe County Board of Education), institutions can take action. The problem that FIRE commonly sees is that institutions too often ignore the definitions provided by the Supreme Court, and instead improvise their own, ad hoc definitions in their own policies. Congress and state legislatures can, and hopefully will, fix this by requiring institutions to employ the precise legal definitions provided by courts once and for all.

To close the hearing, Sen. Ben Sasse offered these thoughts, which went beyond the legal importance of free speech to explain why it is a particularly crucial aspect of a quality higher education:

[It is] incumbent upon university administrators to actually go out and offer a full-throated defense of the First Amendment, not just in legal particularity — though that — but also in terms of the spirit of a liberal arts education, where one of the things that happens is you grow as an adult, is that you actually encounter ideas you didn’t already believe and you didn’t already agree with. One of two things happens then. Sometimes you’re persuaded. Sometimes you actually get converted. That’s called education. That’s growth. . . . Sometimes though, you find that your ideas were good and were strong and were made stronger by having to encounter people who didn’t already agree with you and you have to respect their viewpoints and have a real debate. It is both the essence and part and parcel of First Amendment culture and the beating heart of American belief in discourse. But it’s also fundamentally what’s supposed to be happening on our college campuses.

It was gratifying to see the Senate Judiciary Committee put the spotlight on campus free speech. We look forward to working with the committee on this important issue.