Harvard Law School Administration Enables, Assists Students in Censoring Peers

The 2015–2016 academic year has undoubtedly been one of the busiest for student activism in recent memory, and with that has come free speech triumphs as well as free speech follies. Unfortunately, news from Harvard Law School (HLS) this morning falls squarely in the latter category.

In Fall 2015, a group of students calling themselves “Reclaim Harvard Law” (Reclaim) issued a list of demands intended to address race relations on campus to the HLS administration. In mid-February, unsatisfied with HLS’s response, Reclaim began to occupy the lounge in Harvard Law School’s Caspersen Student Center, calling it “Belinda Hall,” until its demands for institutional change are met.

As with any campus debate, not everyone agreed with Reclaim’s tactics and demands. One student, Bill Barlow, was concerned that the demands would infringe on academic freedom and freedom of expression at HLS. To make his point, he created posters equating Reclaim with presidential candidate Donald Trump, in part due to Barlow’s perception that both Trump and Reclaim have a dim view of free speech.  On March 27, Barlow put his first series of posters up in “Belinda Hall,” reading:

RECLAIM = TRUMP. Both Support Racist Ideologies Both Support Censorship of Dissent

According to Barlow, later that afternoon, he learned that segments of his posters had been removed. He also received an email asking him to meet with HLS Dean of Students Marcia Sells that day. At this meeting, Sells reportedly told Barlow that his posters could be offensive to some students, just as a sign with the word “Hitler” might be offensive to Jews. As the Harvard Law Record reports, Sells further informed Barlow that because they mentioned Donald Trump, the posters were forbidden due to HLS’s obligations as a tax-exempt entity under Section 501(c)(3) of the Internal Revenue Code. Sells reportedly informed Barlow that he could put up posters as long as they made no reference to Trump.

That evening, however, the members of Reclaim determined amongst themselves that only postings approved by Reclaim would be allowed in the lounge, and all others would be removed. When Barlow arrived on the morning of March 28 to put up another set of posters (this time without reference to Trump), a member of Reclaim confronted him and informed him of the new “rule.” Barlow insisted that Reclaim had no right to institute such a rule, and continued to put up his posters. Again, Reclaim removed his posters, as they did again on March 29. In total, Barlow alleges that Reclaim removed 56 of his posters. When Barlow emailed Dean Sells and Dean of HLS Martha Minow about what had happened, Minow reportedly responded that Barlow’s report was “very troubling,” but offered no assistance.

As FIRE repeatedly stated during last fall’s protests on campuses around the country, students must be able to exercise their expressive rights to bring awareness to issues and injustices they perceive as important. But what students may not do is prevent their classmates and colleagues from engaging in those same expressive rights—and administrators at public universities and private universities (like Harvard) that promise free speech must not countenance any such infringement. As the Supreme Court of the United States noted in Red Lion Broadcasting Co. v. FCC (1969), “The right of free speech … does not embrace a right to snuff out the free speech of others.” And as we often remind, contrary to what others may argue, vandalism is not a legitimate exercise of expressive rights.

Put simply, Reclaim may not declare that the expressive rights of other HLS students are subject to their control, which has—perhaps unsurprisingly—been imposed in a viewpoint-discriminatory manner to suppress criticism of the movement. Participation in public protest carries with it the concomitant understanding that one may well be criticized by one’s peers. By allowing a segment of the student body to implement a regime of viewpoint-based censorship in an area that belongs to all HLS students, the administration is abandoning, at least in part, its stated commitment to “free expression and inquiry.” That commitment must be afforded to all, and subjected to the whims of none.

Still more baffling is the HLS administration’s active participation in censorship in the name of the Internal Revenue Code. Already this election season, FIRE has had to remind several colleges and universities that student political activity does not jeopardize an institution’s tax-exempt status. The confusion has become so pervasive that the Oversight Subcommittee of the Committee on Ways and Means of the House of Representatives held a hearing—at which FIRE testified—about the scope of the problem. But truly, this is a new low. Whereas the majority of political activity cases we’ve seen actually involved student campaigning or other direct political advocacy, Barlow simply compared the demands and tactics of Reclaim to the beliefs of Donald Trump. There is simply no conceivable way that this comparison, made by a student, could be construed as HLS participation or intervention in a political campaign. The Internal Revenue Code does not prohibit all mentions of a candidate on campus, and administrators at one of the country’s top-ranked law schools surely ought to know as much. Of course, given the lecture Barlow received on the “offensiveness” of his posters, one could rightly wonder whether the 501(c)(3) concern was merely pretext for silencing unpopular speech. In any event, we invite HLS administrators to peruse our newly-updated Policy Statement on Political Speech on Campus for more information.