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Opinion | How to Reboot Free Speech on Campus

BusinessOpinion | How to Reboot Free Speech on Campus

I had my head in a law book when I heard the drums. That was the sound of the first campus protest I ever experienced. I’d come to Harvard Law School in the fall of 1991 as a graduate of a small, very conservative Christian college in Nashville. Many of my college classmates had passionate religious and political commitments, but street protest was utterly alien to the Christian culture of the school. We were rule followers, and public protest looked a bit too much like anarchy for our tastes.

But Harvard was different. The law school was every bit as progressive as my college was conservative, and protest was part of the fabric of student life, especially then. This is the era when a writer for GQ magazine, John Sedgwick, called the law school “Beirut on the Charles” because it was torn apart by disputes over race and sex. There were days when campus protests were festive, almost celebratory. There were other days when the campus was seething with rage and fury.

That first protest was in support of faculty diversity, and it was relatively benign. I walked outside and followed the sound of the drums. A group of roughly 100 protesters was marching in front of the law school library, and soon they were joined by an allied group of similar size from Harvard’s John F. Kennedy School of Government. I watched as they danced, sang and listened to speeches by student activists and sympathetic professors. That first protest had an angry edge, but it was also completely peaceful and endlessly fascinating to a kid from a small town in Kentucky who’d never seen a drum circle before.

But things soon got worse, much worse. Protests got more unruly, and student activists got more aggressive. The entire campus was in a state of conflict. In Sedgwick’s words, students were “waging holy war on one another.” Small groups of students occupied administrative offices, and angry activists shouted down their political opponents in class and often attempted to intimidate them outside class. I was shouted down repeatedly, and twice I received disturbing handwritten notes in my campus mailbox in response to my anti-abortion advocacy. My student peers told me to “go die.”

Watching the protests and experiencing the shout-downs changed the course of my career. I was both enthralled by the power of protest and repulsed by the efforts to silence dissenters. Given the immense cultural influence of American higher education, I agreed with the Supreme Court’s famous words in the 1957 case Sweezy v. New Hampshire: “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die.” Those words, combined with my own negative encounters at Harvard, helped define my legal career. From that point forward, I would defend free speech.

It’s been more than 30 years since that first campus protest, and over that time I’ve seen countless protests, I’ve defended countless protesters — and I’ve even been protested against at several schools. In the course of those cases and confrontations, I’ve learned that the issue of campus protest is remarkably complex and that campus culture is at least as important as law and policy in setting the boundaries of debate.

There is profound confusion on campus right now around the distinctions among free speech, civil disobedience and lawlessness. At the same time, some schools also seem confused about their fundamental academic mission. Does the university believe it should be neutral toward campus activism — protecting it as an exercise of the students’ constitutional rights and academic freedoms but not cooperating with student activists to advance shared goals — or does it incorporate activism as part of the educational process itself, including by coordinating with the protesters and encouraging their activism?

The simplest way of outlining the ideal university policy toward protest is to say that it should protect free speech, respect civil disobedience and uphold the rule of law. That means universities should protect the rights of students and faculty members on a viewpoint-neutral basis, and they should endeavor to make sure that every member of the campus community has the same access to campus facilities and resources.

That also means showing no favoritism among competing ideological groups in access to classrooms, in the imposition of campus penalties and in access to educational opportunities. All groups should have equal rights to engage in the full range of protected speech, including by engaging in rhetoric that’s hateful to express and painful to hear. Public chants like “Globalize the intifada” may be repugnant to many ears, but they’re clearly protected by the First Amendment at public universities and by policies protecting free speech and academic freedom at most private universities.

Still, reasonable time, place and manner restrictions are indispensable in this context. Time, place and manner restrictions are content-neutral legal rules that enable a diverse community to share the same space and enjoy equal rights.

Noise limits can protect the ability of students to study and sleep. Restricting the amount of time any one group can demonstrate on the limited open spaces on campus permits other groups to use the same space. If one group is permitted to occupy a quad indefinitely, for example, then that action by necessity excludes other organizations from the same ground. In that sense, indefinitely occupying a university quad isn’t simply a form of expression; it also functions as a form of exclusion. Put most simply, student groups should be able to take turns using public spaces, for an equal amount of time and during a roughly similar portion of the day.

Civil disobedience is distinct from First Amendment-protected speech. It involves both breaking an unjust law and accepting the consequences. There is a long and honorable history of civil disobedience in the United States, but true civil disobedience ultimately honors and respects the rule of law. In a 1965 appearance on “Meet the Press,” the Rev. Dr. Martin Luther King Jr. described the principle perfectly: “When one breaks the law that conscience tells him is unjust, he must do it openly, he must do it cheerfully, he must do it lovingly, he must do it civilly — not uncivilly — and he must do it with a willingness to accept the penalty.”

But what we’re seeing on a number of campuses isn’t free expression, nor is it civil disobedience. It’s outright lawlessness. No matter the frustration of campus activists or their desire to be heard, true civil disobedience shouldn’t violate the rights of others. Indefinitely occupying a quad violates the rights of other speakers to use the same space. Relentless, loud protest violates the rights of students to sleep or study in peace. And when protests become truly threatening or intimidating, they can violate the civil rights of other students, especially if those students are targeted on the basis of their race, sex, color or national origin.

The result of lawlessness is chaos and injustice. Other students can’t speak. Other students can’t learn. Teachers and administrators can’t do their jobs.

In my experience as a litigator, campus chaos is frequently the result of a specific campus culture. Administrators and faculty members will often abandon any pretense of institutional neutrality and either cooperate with their most intense activist students or impose double standards that grant favored constituencies extraordinary privileges. For many administrators, the very idea of neutrality is repugnant. It represents a form of complicity in injustice that they simply can’t and won’t stomach. So they nurture and support one side. They scorn the opposition, adopting a de facto posture that says, “To my friends, everything; for my enemies, the law.”

I’ve experienced this firsthand. I vividly remember representing a campus Christian group in a dispute at Tufts University in 2000. The group had been derecognized for requiring that student leaders of their group share that group’s traditional sexual ethic, which reserves sex for heterosexual marriage. You might disagree strongly with that view, but granting religious groups the flexibility to impose faith-based requirements on religious leaders fits squarely within the American tradition of free exercise of religion.

Tufts is a private university, so it has some flexibility in suppressing religious expression on campus, but it had no excuse for attempting to toss a Christian group from campus at the same time that it permitted acts of intimidation against those Christian students. For example, at the most contentious moment of the dispute, Tufts officials prevented my student clients and me from entering the hearing room where their appeal was being heard, while a crowd of protesters gathered in a darkened hallway, pressed up around us and herded us into a corner of the hall. There was no campus outrage at this act of intimidation. We saw no administrative response.

University complicity in chaos isn’t unusual. In a case I worked on when I was president of the Foundation for Individual Rights and Expression, we discovered that administrators at Washington State University’s Pullman campus had actually helped plan a disruptive protest against a play put on by a student director, an intentionally provocative show that mocked virtually every group on campus.

University or faculty participation in unlawful protest isn’t confined to the cases I worked on. At Oberlin College, administrative facilitation of ugly and defamatory student protests outside a local business ultimately cost the school $36 million in damages. At Columbia, hundreds of sympathetic faculty members staged their own protest in support of the student encampment on the quad, and there are reports that other faculty members have attempted to block members of the media from access to the student encampment.

None of this is new. All of it creates a culture of impunity for the most radical students. Disruptive protesters are rarely disciplined, or they get mere slaps on the wrist. They’re hailed as heroes by many of their professors. Administrators look the other way as protesters pitch their tents on the quad — despite clear violations of university policy. Then, days later, the same administrators look at the tent city on campus, wring their hands, and ask, “How did this spiral out of control?”

There is a better way. When universities can actually recognize and enforce the distinctions among free speech, civil disobedience and lawlessness, they can protect both the right of students to protest and the rights of students to study and learn in peace.

In March a small band of pro-Palestinian students at Vanderbilt University in Nashville pushed past a security guard so aggressively that they injured him, walked into a university facility that was closed to protest and briefly occupied the building. The university had provided ample space for protest, and both pro-Israel and pro-Palestinian students had been speaking and protesting peacefully on campus since Oct. 7.

But these students weren’t engaged in free speech. Nor were they engaged in true civil disobedience. Civil disobedience does not include assault, and within hours the university shut them down. Three students were arrested in the assault on the security guard, and one was arrested on charges of vandalism. More than 20 students were subjected to university discipline, three were expelled, and one was suspended.

The message was clear: Every student can protest, but protest has to be peaceful and lawful. In taking this action, Vanderbilt was empowered by its posture of institutional neutrality. It does not take sides in matters of public dispute. Its fundamental role is to maintain a forum for speech, not to set the terms of the debate and certainly not to permit one side to break reasonable rules that protect education and safety on campus.

Vanderbilt is not alone in its commitment to neutrality. The University of Chicago has long adhered to the Kalven principles, a statement of university neutrality articulated in 1967 by a committee led by one of the most respected legal scholars of the last century, Harry Kalven Jr. At their heart, the Kalven principles articulate the view that “the instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars.”

Contrast Vanderbilt’s precise response with the opposing extremes. In response to the chaos at Columbia, the school is finishing the semester with hybrid classes, pushing thousands of students online. The University of Southern California canceled its main stage commencement ceremony, claiming that the need for additional safety measures made the ceremony impractical. At both schools the inability to guarantee safety and order has diminished the educational experience of their students.

While U.S.C. and Columbia capitulate, other schools have taken an excessively draconian approach. Gov. Greg Abbott of Texas posted on X, “Students joining in hate-filled, antisemitic protests at any public college or university in Texas should be expelled.” On April 25 the Foundation for Individual Rights and Expression sent a forceful letter to the president of the University of Texas at Austin condemning the display of force on campus. “U.T. Austin,” it wrote, “at the direction of Gov. Greg Abbott, appears to have pre-emptively banned peaceful pro-Palestinian protesters due solely to their views rather than for any actionable misconduct.”

At Emory University, footage emerged of police tackling a female professor who posed no obvious danger to the police or anyone else. Protests are almost always tense, and there is often no easy way to physically remove protesters from campus, but the video footage of the confrontation with the professor was shocking. It’s hard to conceive of a justification for the violent police response.

At this moment, one has the impression that university presidents at several universities are simply hanging on, hoping against hope that they can manage the crisis well enough to survive the school year and close the dorms and praying that passions cool over the summer.

That is a vain hope. There is no indication that the war in Gaza — or certainly the region — will be over by the fall. It’s quite possible that Israel will be engaged in full-scale war on its northern border against Hezbollah. And the United States will be in the midst of a presidential election that could be every bit as contentious as the 2020 contest.

But the summer does give space for a reboot. It allows universities to declare unequivocally that they will protect free speech, respect peaceful civil disobedience and uphold the rule of law by protecting the campus community from violence and chaos. Universities should not protect students from hurtful ideas, but they must protect their ability to peacefully live and learn in a community of scholars. There is no other viable alternative.

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