Policing the Heckler's Veto: Toward a Heightened Duty of Speech Protection on College Campuses

• Publication year: 2022

52 Creighton L. Rev. 29. POLICING THE HECKLER'S VETO: TOWARD A HEIGHTENED DUTY OF SPEECH PROTECTION ON COLLEGE CAMPUSES

POLICING THE HECKLER'S VETO: TOWARD A HEIGHTENED DUTY OF SPEECH PROTECTION ON COLLEGE CAMPUSES

NOAH C. CHAUVIN ^[*]

ABSTRACT

In the wake of high-profile incidents on college campuses across the nation over the past several years, free speech protections on campus have become a hot-button issue. Colleges have been forced to balance the ideals of First Amendment free speech protections with the need to ensure a learning environment that is welcoming to all students. For the first time, calls to suppress speech are coming on behalf of (and frequently from) students who traditionally have been under-represented on college campuses.

Students are not merely calling for change, they are also taking action. Over the past several years, there has been a drastic increase in the use of the "heckler's veto"-the use of violence or disruption to prevent a speaker from delivering her message. Students have protested, shouted down speakers, and in some instances even rioted to prevent controversial figures from speaking on their campus. Colleges and universities have incurred enormous costs in an effort to combat these protests and protect free speech.

Colleges cannot arbitrarily shut out speakers, and must work to deter and prevent a heckler's veto. However, at some point, security costs become too high, and colleges must shut down controversial events to ensure safety. What remains unclear is precisely where that point lies. This Article details a five-part standard for colleges and universities to use to determine when they can appropriately prevent someone from speaking to promote safety, and when they must find a way to ensure safety without effectuating the heckler's veto.

I. INTRODUCTION ................................... 30

II. LEGAL AND HISTORICAL BACKGROUND ........ 36

A. THE BERKELEY FREE SPEECH MOVEMENT ......... 36

B. NO CONTENT-BASED RESTRICTIONS ON CAMPUS .... 38

1. Recognition of Student Organizations ........ 38

2. Student Fees ................................. 41

3. Hate Speech Codes ........................... 42

C. CONFRONTING THE HECKLER'S VETO .............. 43

D. WHEN SPEECH THREATENS SAFETY ............... 47

III. THE PROPOSED SOLUTION ....................... 49

A. WHAT OTHERS HAVE PROPOSED .................. 49

1. Refusing to Effectuate a Heckler's Veto ....... 50

2. Appropriating Brandenburg .................. 52

B. THE PROPOSED STANDARD ........................ 54

1. Whether the Speaker was Invited by a Registered Student Organization ............. 55

2. Whether There is Broad Community Interest in the Speaker ....................... 56

3. The Amount of Time the College Has to Prepare for the Event ........................ 58

4. The Proposed Venue for the Event ............ 59

5. The Cost and Feasibility of Securing the Event, Proportional to the College's Annual Budget ...................................... 60

IV. COUNTERARGUMENTS ........................... 61

A. THE PROPOSED FACTORS ARE TOO INDETERMINATE .................................. 62

B. THE PROPOSED STANDARD FAILS TO ACCOUNT FOR THE LONG-TERM HARM CAUSED BY HATEFUL AND INFLAMMATORY SPEECH ...................... 63

C. THE PROPOSED STANDARD DOES NOT APPROPRIATELY WEIGH THE ENORMOUS COSTS THAT COLLEGES COULD INCUR TO PROTECT FREE SPEECH ......................................... 65

D. COLLEGE ADMINISTRATORS MAY NOT HAVE SUFFICIENT INFORMATION TO DECIDE WHETHER THEY CAN ENSURE SAFETY BEFORE A SPEAKER REACHES CAMPUS ................................ 67

V. CONCLUSION ..................................... 68

I. INTRODUCTION

On February 1, 2017, "150 masked agitators" led violent protests at the University of California, Berkeley in response to a planned speech by conservative provocateur Milo Yiannopoulos. ^[1] The protestors threw rocks and fireworks at police, attacked bystanders, smashed windows, flung Molotov cocktails, and lit campus buildings on fire. ^[2] University officials cancelled the event and escorted Yianno-poulos from campus, "out of concern for public safety." ^[3] In all, the protestors "caused $100,000 worth of damage to the campus." ^[4] Yian-nopoulos took to Facebook to decry the violence, declaring "the Left is absolutely terrified of free speech and will do literally anything to shut it down." ^[5] In response, conservative student organizations planned free speech events and invited conservative speakers to Berkeley's campus, and the university spent millions of dollars providing security for those events. ^[6] In total, "Berkeley spent close to $4 million on [security for] free speech events in the span of one month in 2017," largely on "reinforcements from outside law enforcement agencies." ^[7]

On October 19, 2017, seven months after the Yiannopoulos riots at Berkeley, white supremacist Richard Spencer ^[8] gave a speech at the University of Florida. ^[9] University President Kent Fuchs warned that Spencer and his supporters hoped, by their presence, to provoke violent clashes. ^[10] In response, the organizers of the event insisted that security was the responsibility of the police, not Spencer or his supporters. ^[11] To ensure safety, the University spent $500,000 on security for the event, ^[12] and Governor Rick Scott declared a state of emergency in Alachua County to allow the local sheriff to bring in security teams from across the state. ^[13] Hundreds of police officers patrolled Gainesville and shut down key roads in preparation for the speech. ^[14] Ultimately, Spencer's talk concluded without violence, though he was repeatedly shouted down and heckled by the "boisterous" audience. ^[15] Eli Mosley, a white nationalist ^[16] who joined Spencer on stage told hecklers, "[t]his right here, what you're doing, is the best recruiting tool for us that you could possibly ever give us." ^[17]

Colleges and university events have been plagued by disruptive protests absent a threat of violence, as well, and it is not just controversial ultra-conservative speakers who are at risk. ^[18] On September 27, 2017, students at the College of William & Mary shouted down Claire Guthrie Gastanaga, the Executive Director of the American Civil Liberties Union (ACLU) of Virginia. ^[19] Gastanaga was slated to talk, ironically, about the importance of the First Amendment, but students yelled over her, preventing her from speaking. ^[20] The students were protesting the ACLU of Virginia's work defending the free speech rights of white supremacist groups in the buildup to the deadly white supremacist rally in Charlottesville in August of 2017. ^[21] They chanted slogans like "'ACLU, you protect Hitler, too,' 'ACLU, free speech for who?' and 'the oppressed are not impressed,'" while Gastanaga tried to speak. ^[22] In a statement condemning the incident, William & Mary President Taylor Reveley criticized students for shouting over Gastanaga, rather than engaging her in thoughtful debate. ^[23] Reveley wrote that:

Silencing certain voices in order to advance the cause of others is not acceptable in our community. This stifles debate and prevents those who've come to hear a speaker, our students in particular, from asking questions, often hard questions, and from engaging in debate where the strength of ideas, not the power of shouting, is the currency. ^[24]

Campus officials confirmed that the protesting students had violated the College's Code of Conduct, but would not say whether the offending students would be disciplined. ^[25]

The so-called "heckler's veto," where someone opposed to a speaker's message is able to disrupt the speaker and prevent the message from being delivered, is not a new concept. ^[26] Indeed, it is not even particularly new on college campuses. ^[27] What is new is the highly volatile relationship between controversial speakers intentionally trying to provoke their detractors and the protestors committed to stopping them by any means necessary. ^[28] It is part of an emerging pattern of unprecedented levels of student protest. ^[29] Today, ten percent of all incoming college students expect that they will participate in a protest sometime during their college career. ^[30] Those numbers are increasingly borne out of the increase in large, high-profile student protests on campuses across the country. ^[31]

This Article begins from the standpoint that protecting free speech is not just a constitutional duty for public colleges and universities; it should also be a pedagogical goal. In a recent book about the state of free speech on college campuses, Erwin Chemerinsky and Howard Gillman describe the ideal modern western university:

[A place] dedicate[d] . . . to the creation of disciplined free thinkers who seek new knowledge and are willing to challenge received wisdom if that's where facts and reason take them. Such a community . . . value[s] expert training and rigorous thinking, [along with] curiosity, discovery, skepticism, and dissenting viewpoints. Ideas that seem[] wrong [are not] censored or shouted down but engaged and exposed through argumentation. People who advocate[] such ideas with rigor and expertise [are not] ignored or denied a chance to be heard; rather, they [are] permitted, and even encouraged, to challenge authorities with whom they disagree[]. ^[32]

Chemerinsky and Gillman note that to protect this ideal, colleges and universities (both...