University of Oregon Divided over Free Speech Controversy

The University of Oregon student body has been learning some useful lessons in liberty as the campus debates what to do about an extremely controversial group's presence on campus. Last week, the student government narrowly voted to defend free expression when it voted down a resolution designed to push the group off campus for good.

The organization is the Pacifica Forum, a discussion group hosted on campus by an emeritus professor, as permitted by university rules. The group is so controversial, it appears, because every so often it discusses topics that a lot of people on campus find extremely offensive—such as the swastika or Nazism—well, not just because of the topics, but because some of the participants appear to the critics to be voicing far too much sympathy for ideas of white supremacy. You can find this criticism of the Pacifica Forum in full force on the Facebook.com group "UofO students and community members against the Pacifica Forum," and you can find defenses of the group's right to free expression in reasonably good order on the website of student publication the Oregon Commentator.

The most recent ten discussion topics that are posted as of today on the Pacifica Forum's website are these:

• Neo-Communism and the Anti-Hate Task Force
• Symbolism of the Swastika — A debate between Billy Rojas and Jimmy Marr
• Everything You Wanted to Know about Pacifica Forum but were Afraid to Ask
• Power Laws in Highway Construction and Finance
• An Insider's View of America's Radical Right
• Coal Strip Mining: America's Worst Environmental Problem
• Free Speech for Me - But Not for Thee: The Marcusean Assault on the First Amendment
• Amending the Amendment: Historical overview of Supreme Court cases affecting the First Amendment
• Hindu Holocaust: How Islam nearly Destroyed Indian Civilization
• Islam, Religion of Peace or Holy Horror?

The group met at the university's Erb Memorial Student Union until a few weeks ago, when it met in a larger space than usual because of the expectation of hundreds of protesters for the discussion of the swastika on January 15. The protesters came and disrupted the event.

The disruption appears to have been organized by student government president Emma Kallaway, and Vice President Getachew Kassa who, according to the Oregon Commentator's January 25 issue, helped to coordinate a rally prior to the disruption:

"We wanted to create fear and anger in the forum, and we accomplished that today," said Kassa.

According to campus newspaper the Oregon Daily Emerald, the disruption was severe enough that law enforcement officers had to remove several protesters from the room.

Rather than decry the disruption of an event on campus, however, University of Oregon President Richard Lariviere reportedly praised the action, according to The Register-Guard (Eugene, Oregon):

"I am intensely proud of the students and the community and the way they stood up to that hateful speech," he said.

This response reminds me of another FIRE case out in the Pacific Northwest, where Washington State University officials actually trained student protesters to disrupt the performance of a play billed by its student playwright as "offensive to all audiences" and then paid for their tickets so that they could disrupt it. The protests included threats of violence. Afterward, the university's president praised the protesters because they "exercised their rights of free speech in a very responsible manner by letting the writer and players know exactly how they felt."

At Oregon, however, it is the students who are now playing the "safety" card, with some students confusing what they call "hate speech" with realistic threats. In fact, one of the most outspoken critics of the Pacifica Forum from the local community of Eugene, Michael Williams, a member of Eugene's Anti-Hate Task Force—and who "has monitored the [F]orum since 2003"—has himself acknowledged that there is no safety issue on campus, as the Commentator reports:

"I have attended every meeting, and made sure I was the most informed person in the room, including the speaker," Williams said in an interview ... "I don't know of any threats that have gone to the legal level, but there have been implied threats, and there has been intimidation," he remarked when asked about the safety issue.

The Commentator similarly reports Dean of Students Paul Shang saying that "the group is consistently close to language that sounds threatening, but isn't legally threatening." (The Commentator did not quote Shang directly.)

Nevertheless, now that students have played the "safety" card, the group is no longer going to be allowed to meet in the student union building this academic year but will be provided space elsewhere on campus. Here's the university's announcement, excerpted below:

Student leaders are concerned about personal safety and the well-being of our campus. We take these concerns very seriously.

In response, the Pacifica Forum's reservation in the Erb Memorial Union (EMU) will be transferred to a different location for the remainder of this academic year. The alternative location, currently Agate Hall, will provide better security options for the campus, recognize the community rather than student nature of the Pacifica Forum, and provide a larger venue when necessary. We will continue to monitor and review this decision.

[...]

As a public institution, we value free speech and academic freedom. As an academic enterprise, it is appropriate for us to debate the boundaries and expectations of free speech. Our primary mission is the advancement of student learning, research and service. Activities that occur on our campus should emanate from these core goals and must not jeopardize safety or disrupt our educational and workplace environments. When they do, it is our responsibility to respond.

Armed with this victory, the leading student protesters are now working on getting the group banned from the rest of the campus—hence last week's failed student government resolution. It is heartening that so many students still see this issue for what it is: a free speech issue. As the Emerald reports:

The resolution's opponents said they were nervous that passing the measure would violate Pacifica Forum members' First Amendment rights. Some said they had changed their minds since the Senate unanimously put the resolution up for a vote at its Jan. 20 meeting. 

"I voted 'yes' last week and had a very emotional moment," said Sen. Demic Tipitino, adding, "I realized my conscience would not let me vote against free speech."

The meeting grew more and more emotional as debate raged. Senators speaking against the resolution were frequently interrupted by audience members, and two senators began crying during the meeting.

The Senate's first attempt to vote on the resolution failed, and the meeting appeared to have reached a breaking point when Anti-Hate Task Force member Michael Williams, a longtime Pacifica Forum opponent, stood up and began speaking while a senator was talking. However, Williams' speech implored audience members to remain quiet and allow the Senate to vote.

Shortly thereafter, just before midnight, the Senate was able to vote on the subject, rejecting the resolution by a vote of seven for, 11 against and one abstaining.

Student Senator Demic Tipitino should be commended for his change of heart. The First Amendment and the principles of free speech are so important because, for one thing, they protect minority views. The more of a minority the view, the more it needs protection, and the more it needs people like Demic Tipitino. A person might thoroughly despise the speech that the First Amendment protects today, but the same person might feel tremendous appreciation when the same principles protect his or her own minority views tomorrow.

Meanwhile, the university appears to be trying to figure out how to change its policies just enough to be able to ban the Pacifica Forum without violating academic freedom or freedom of expression. That's going to be hard to do. Here are a few ideas that I've seen so far, none of which is going to be acceptable to free speech advocates or to the First Amendment. 

1. The "safety" rationale fails in the absence of truly proscribed speech, such as true threats (and even then, it would be unclear whether an individual threat would be enough to discipline the entire group). I've also seen some incorrect statements of the exceedingly rare "fighting words" exception to First Amendment protection in the Facebook group I mentioned above. In Tinker v. Des Moines Independent School District, the Supreme Court determined that, even in high schools, "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." (Emphasis added.) Tinker is binding on public colleges like University of Oregon as a minimum requirement—colleges must tolerate much more freedom of speech than must high schools.

2. If the protesters think that they can create enough trouble that their disruption of the group can get the group banned, they have the situation exactly backwards. According to the student who appears to be the leader of the protesters, Devon Schlotterbeck, on the Facebook group on January 25:

The administration has also drafted a change of policy that will hopefully be enacted sometime in the coming weeks, however this policy will only make the Forum pay for the rooms they rent, but it doesn't stop them from meeting in the EMU necessarily. When that policy is enacted, we must continue to show up in large numbers because the Forum will have to pay for the room rental fee as well as a fee for the police presence (which will have to be brought in for large numbers of protesters) and that will hopefully be expensive enough to force the Forum off campus ...

Just as before, however, law enforcement will protect the rights of the group being disrupted, no matter how proud of the disruptive students the president feels.

Furthermore, it is unconstitutional to require the group to pay for its own protection, as FIRE has pointed out successfully time after time, for instance at the University of Colorado at Boulder; University of Massachusetts Amherst; University of California, Berkeley; and University of Arizona—all of which abandoned such security fees in FIRE cases just last year. The key point is this, as stated by the Supreme Court in Forsyth County v. Nationalist Movement (1992): "Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob." (Emphasis added.)

3. If the university will attempt to argue that the Pacifica Forum is not sufficiently "academic" to be allowed on campus, this is going to be an impossible standard to enforce across the board. Will the university start to monitor all events in order to step in when someone makes an insufficiently academic comment? Will certain topics simply be declared not acceptable for discussion at the university? The list of recent Pacifica Forum events makes clear that this group discusses issues of public concern—core protected speech under the First Amendment. The fact that some of the members seem to hold what might charitably be called "controversial" views does not invalidate the group's right to discuss these topics. Besides, how is the university going to evade unconstitutional prior review and unconstitutional prior restraint on groups that apply to hold events on campus following regular procedures?

4. Likewise, the university is not going to be able to ban the group because it or its members have violated—or might one day violate—the university's unconstitutional speech code or similar "anti-hate" rules. There's no First Amendment exception to permit the banning of "hate speech," and what seems hateful to one person is often a sincere view (or even a pointed satire) to another person.

I will close with a couple of things for the protesters to think about. First, is it better to know who your enemies are, or to drive them underground? Second, getting the group banned from campus will not be enough if you really want to avoid the people you claim to fear—the next step will be to ban all individuals with the views you hate from the whole campus. And history shows that few people wish to live the consequences of a regime that has developed a taste for kicking unpopular people out of the community.

Update: It was discovered that someone over the weekend spray painted a swastika on the floor in the office of the student group Lesbian Gay Bisexual Trans Queer Alliance, and damaged other property in the office, although there was no sign of forced entry. Vandalism is, of course, illegal, and the perpetrator(s) must be brought to justice—including anyone who conspired with the offender(s) or incited someone to commit the illegal act by a legally applicable definition of incitement. At present, however, there appears to be no suspect. 

Nevertheless, according to the Feb. 3 Oregon Daily Emerald, student government president Emma Kallaway said that "she would pursue removing the [F]orum regardless of the [student government] Senate's decision" on whether to pursue kicking the group off campus. The Senate will be considering a new resolution that does not ask the Pacifica Forum to leave campus:

[Senate Vice President Nick] Schultz said senators told him they would support the resolution "as long as there isn't any attempt to remove the Pacifica Forum from campus."

Not all senators said they would support the new resolution, however. Sen. Tyler Griffin, who voted against the original, said he won't support any resolution that mentions the Pacifica Forum. He said the incident in the LGBTQA increased the need to act, but he said a resolution against the Pacifica Forum specifically would be misplaced.

"We should pass a resolution that makes our campus safe and brings our campus together," he said. "But this is not the way we unite - by ousting a group." Not all senators said they would support the new resolution, however. Sen. Tyler Griffin, who voted against the original, said he won't support any resolution that mentions the Pacifica Forum. He said the incident in the LGBTQA increased the need to act, but he said a resolution against the Pacifica Forum specifically would be misplaced.

"We should pass a resolution that makes our campus safe and brings our campus together," he said. "But this is not the way we unite — by ousting a group."