So to Speak podcast transcript: Campus unrest - live webinar

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Will, can I ask you to maybe do the impossible, which is one of the questions we've got here?

Will Creeley: Oh boy.

Nico Perrino: John asks, how would a FIRE-informed university president have answered Congresswoman Elise Stefanik's question, does calling for the genocide of Jews violate your university's rules on bullying and harassment? Is it possible to answer a question about unprotected speech in one word?

Will Creeley: Yeah, I mean, the answer would be maybe.

Recording: Freedom of speech. Fundamental rights. Freedom of conscience. Academic freedom. Freedom of press. And the right to listen. You're listening to So To Speak, the free speech podcast, brought to you by FIRE, the Foundation for Individual Rights and Expression.

Nico Perrino: I think we have a bunch of new folks to FIRE probably participating in this live webinar. So, for those who are new to FIRE and the work that we do, we are the Foundation for Individual Rights and Expression. For 23 years, we were focused on campus civil liberties issues, free speech, due process, academic freedom, and religious liberty. In 2022, we expanded our free speech mission off campus. Now we defend the free speech rights of all Americans. The conversation that we're gonna have today, however, is focused on campus. This is where our expertise has been for 25 years, and this is our moment. For those who are new to this format, we are going to get the conversation started by doing a deep dive into the campus unrest, the various issues at play, and the cases that we are seeing. But I want to take your all's questions. That's probably the best way to have this conversation, the most interesting way to have this conversation.

So, please in the chat feature at the bottom of your screen, ask questions throughout the conversation, and we will address them throughout the conversation. If you end up liking this format, we do what we call member-only conversations every month where we address all sorts of issues related to FIRE's mission. You can become a FIRE member by going to thefire.org and donating $25. If you become an annual member $25 a year gives you access to those conversations. It also gives you access to other benefits, such as FIRE events, early tickets to FIRE-sponsored events, the FIRE Quarterly, and many other goodies. So, I think we're gonna get started. Very quickly introduce my colleagues on this call, Will Creeley, FIRE's Legal Director. Will, welcome.

Will Creeley: Howdy. Thanks for having me.

Nico Perrino: And Alex Morey, our Vice President of Campus Advocacy, was recently promoted, formerly the director of our Campus Rights Advocacy Department. Alex, welcome.

Alex Morey: Thanks so much.

Nico Perrino: So, Alex, I imagine that you have been quite busy within the campus vertical at FIRE these past couple of weeks. We have hundreds of protests on college campuses, and more than 50 encampments, according to Bloomberg News as of Friday. There are more than 800 arrests, according to the New York Times. We checked this morning. So, things have been hot on campus. What are you seeing in your departments?

Alex Morey: Well, we think that peaceful protest, that can be a good sign of a healthy and habitable campus climate. We never wanna see protests devolve into violence. We don't wanna see peaceful protests preemptively shut down, a lot of the things that we have seen on campuses in the last week or two. Of course, it's been really difficult for us at FIRE because for decades now, we've been trying to explain to people the kinds of policies, practices, and mindsets that we think and have seen play out on some campuses. We think it could prevent a lot of these kinds of devolutions of peaceful protest into something that we don't wanna see. So, practically, we have been trying to analyze various situations that we're seeing play out in real-time on X or in the media. We're trying to analyze it as fast as we can. We’re trying to figure out is this protected? Is there a student or faculty rights violation at issue?

If there is, we're urgently writing letters, we're providing commentary, and we're filing public records requests. This is a team of like 10, or 12 people plus with assists from broader FIRE. So, yeah, we've been really busy. And this is one of those situations where you can speak in broad platitudes about like free speech on campus is good. However, when it comes down to the nitty-gritty of what is protected in a given situation, it is gonna be a fact-intensive analysis every single time. That's what we tell college administrators that they have to do every single time. And that's what we have to do every single time when we're looking at each given situation. So, definitely a lot of hard work. We've got hard-working, caring, lovely people on our staff and we're, you know, busting our butts to try to get everything tackled as fast as we possibly can.

Will Creeley: That's the term of art. That is the correct term.

Alex Morey: That is the legal, Chemerinsky came up with that one, yes.

Nico Perrino: I wanna remind our participants to put any questions they have in the chat and we will get to them throughout the conversation. Yeah, Alex, that's one of the challenges, right? When you're having a situation like the one we're seeing unfold at hundreds of campuses across the country is that it's easy to paint all of the protests with a broad brush, all of it being protected free speech or assembly. All of it being civil disobedience. All of it being a violation of content-neutral time, place, and manner restrictions, all of it being violence. But Will, it's a little bit more complicated than that, as we might expect.

Will Creeley: Yeah.

Nico Perrino: What are the broad principles at play that folks should be mindful of when they're assessing and that we're mindful of when we're assessing any given protest on any specific campus?

Will Creeley: Well, Alex alluded to a couple of them. I'll just start with the basics. First of all, peaceful protest is protected. You have the right as a student to speak your mind on campus and that is especially true at public university campuses which are bound by the First Amendment. You don't check your First Amendment rights at the door as a student or faculty member with one exception. You do check them at the classroom door. Folks, let me just preempt those comments. Wait a second, you tell me I have a First Amendment right to say whatever I want in class? No, you will be graded appropriately. But on the generally accessible public areas of campus, we consider those, and the law considers those traditional public forums. Or at the very least designated public forums for students and faculty who have a right to be there. So, that means that you can engage in a wide variety of expressive activity subject to reasonable time, place, and manner regulations.

Here, you can tell where I'm earning that adjective before a director, or legal director, right? This is where I'm gonna get a little jargony and I'm gonna try and keep it very simple. The time, place, and manner regulations basically govern what means you use, and how you say something, right? If I say, no amplified sound on campus after 2:00 a.m. because people are sleeping, well, that's a reasonable time, place, and manner restriction. Now note here, very importantly, those reasonable restrictions have to be viewpoint and content-neutral. So, if I say, no amplified sound on campus after 2:00 a.m., unless you're a member of the College Democrats, in which case go nuts, right, now we're not viewpoint and content-neutral anymore. We are discriminated against for every view that's not a College Democrat or a College Republican, and vice versa. So, that's when you start running into problems. The reasonable time, place, and manner restrictions also have to allow for ample alternative means of expression, right? So, you can't just shut down expression on campus completely. You also can't have rules that are just wildly unreasonable, even if they are view-pointed content-neutral.

If you say that every protest or every expressive activity on campus has to be registered two weeks in advance, that might be view-pointed content-neutral, but it's not reasonable. So, that's kind of the broad outlines of what's going on here. That's the first step. I should note here that there are some types of expression or expressive conduct that are never protected by the First Amendment. Violence is never protected. Happily, incidents of violence appear to have been isolated here. True threats and intimidation are also not protected. Discriminatory harassment, properly defined, is also not protected. These are very narrow, very specific definitions that do require context-based appraisals of what's going on here. So, to your point, Nico, and to your point, Alex and it's an excellent one, each situation has to be evaluated in context. That's part of the work we do here every day, around the clock lately.

Nico Perrino: We have a question from Richard who asks if we can explain the differences between free speech in private versus public campuses. Maybe we'll pitch that one over to Alex.

Will Creeley: Go for it, Alex.

Alex Morey: Sure. This one I can handle. For the more detailed ones, maybe we get Will here.

Will Creeley: You can handle all of them, to be clear.

Alex Morey: So, in public, this is like the most common question that we get, back to basics. Okay, so in public spaces, on public college campuses, these are government property on the open outdoor areas of public campuses, these are typically open for protest. There can be some, like Will said reasonable time, place, and manner, regulations imposed. Then we've got some states give extra protection to these open, outdoor areas of campuses, like Texas, that have codified in state law that these areas are open for public protest. On private campuses, private campuses can choose whether or not they elevate other values above freedom of expression. However, the vast majority, particularly the big names, the Harvards and the Yales but the vast majority of private college campuses make First Amendment-like protections, including the right to protest on their campuses. That's why at Columbia, we've been holding them to a similar standard when we're saying, “Hey, you can't cut off the open outdoor area of your campus to peaceful protests because at the opening of your policy document, even though you're a private entity, you've got this First Amendment-like promise that opens all your policy documents that say we are not going to censor speech on our campus, even if it's controversial.”

It looks a lot like the First Amendment. They make these carve-outs for we're only gonna censor speech that might constitute violence or misconduct, and we're only going to impose content and viewpoint-neutral time, place, and manner regulations. Now, there is a subset of schools that do elevate other values above free expression. You know, your very religious schools, your BYUs, your military academies, but we don't hassle them because they have the right to do that as a private entity and they're very clear in their policy documentation. You know, when you sign up to go to BYU, you know you don't have the same kind of free expression rights that you might at a public campus or a private campus that makes First Amendment-like promises.

Nico Perrino: We have a question now about the encampment so I want to turn now to Columbia Will. Alex mentioned that at private schools that adopt First Amendment free speech standards that they're not required to do, but do so voluntarily, that in most cases the outdoor areas of campus are free for student expression. Anyone who's been to Columbia knows there's this giant quad sitting right in the middle of campus where students are often engaging in expressive activities. But in recent weeks, they've set up an encampment 24 hours a day. The other encampments that you're seeing around campus have largely come in response to Columbia sending in the police to break that one down. So, what is the free speech analysis surrounding encampments and what can colleges, private and public, do in response to that?

Will Creeley: Yeah, that's a great question. It's really kind of the crux of the whole matter at the moment. Colleges can regulate overnight camping on their publicly accessible grounds. We were talking about reasonable time, place, and manner restrictions. I think a restriction against having students camp out in a public area if it's applied even-handedly and it's published and on the books indefinite, that can be enforced. Now, how that enforcement happens is crucial. I think using law enforcement or force has to be an absolute last resort before moving students. Students have to be given notice that they're in violation of this rule. Any student who is disciplined for violating the rule, of course, has to be afforded procedural rights, due process, and a fair hearing. Those are just the basics, again, of any kind of disciplinary proceeding.

That's really the crux of the matter here for us is that you can have a restriction on camping overnight for any number of reasons. First of all, the college's interest is in maintaining open access to its campus for all students. The college's interest in providing for the safety of students who are outside on its grounds after hours. Also, you can imagine those kind of operational interests and those are significant enough that I think you could have a narrowly tailored viewpoint and content-neutral restriction on camping. It certainly does allow for alternative means of protest. You can just protest during the day. But how those restrictions have been enforced or not enforced in the past has proven to be a flashpoint here.

Nico Perrino: Yeah. At Indiana University, for example, it sounds like their administration passed a policy banning encampments on Dunn Meadow. I'm a former Indiana University student, so I'm pretty familiar with that campus as a way to forestall these sorts of encampments. Whereas previously if our research is correct, for example, there was an encampment in Dunn Meadow for 45 days protesting, I believe, the first Iraq war. So, what can college and university administrators do in response to real-time protests to implement those sorts of time, place, and manner restrictions? How must they consider their past actions, which as we know, anyone who follows FIRE, are often not great with regard to free speech in moving forward if they, for example, want to start using time, place and manner restrictions now?

Will Creeley: Well, let me be clear. I think any change to university policy that's motivated by a desire to preempt or silence a particular viewpoint is inherently suspect and should be guarded with great suspicion.

Nico Perrino: Well, can you talk about Greg Abbott's social media post in that regard?

Will Creeley: Well, absolutely, but also Indiana University. Governor Abbott in Texas has singled out two pro-Palestinian student groups by name. He has made clear his distaste for pro-Palestinian viewpoints and some of the protesting on campus and dispatched a shockingly large law enforcement response to campus to apparently preempt student protests. That does not strike me as a reasonable response designed to protect the marketplace of ideas that is uniquely a public university campus. In fact, it strikes me as contrary to that idea. Rather, it seems like a chilling threat to students who might voice viewpoints unpopular with the governor's office that they better stay home and shut up. That's the kind of thing that as free speech advocates here at FIRE, we can't abide. But with regard to Indiana University, again, I think kind of passing a last-ditch, quiet all but off the books change to the university policy to forestall protest.

Again, I think that's problematic as well. Ideally, what you would have are well-established, even-handedly enforced viewpoint and content-neutral restrictions that are reasonable, that are narrowly tailored, and that allow ample alternative means of protest. Those should be on the books. Everybody should know about them. Everybody should be certain about their enforcement. It shouldn't be sometimes they're enforced and sometimes they're not. If you're coming into a situation where they haven't been enforced in the past, as was apparently the case at Columbia and other universities, you have to be very clear about why you're enforcing them now and give students notice so that they can react appropriately. That's just what fundamental fairness here demands.

Nico Perrino: Will, you mentioned open access to campus for all students is one of the reasons that you can enforce content-neutral time, place, and manner restrictions. Some of the allegations are that these encampments or these pro-Palestinian protest groups are interrogating folks based on viewpoint before they can access or journalists aren't able to come onto campus and report on them. What's the analysis there?

Will Creeley: Yeah, that's unacceptable. I think blocking access to campus for other students who don't share the viewpoint of a group that's occupying campus is itself restrictive. I don't think that is in keeping with the university's role as a marketplace for ideas. I think that's a real problem. I think blocking physical access to parts of campus or conditioning access to parts of campus on agreeing with the viewpoint of a group that's holding a protest is a real problem and universities have to be able to allow for the free movement of all students around campus.

Nico Perrino: Alex we have a question about the exceptions to the First Amendment for things like fighting words and incitement. These words are often getting thrown around a lot surrounding these campus conversations as ways to say that any given speech falls outside First Amendment protection or private schools’ free speech standards. I just saw an interview with Mitch McConnell on Face the Nation this past week where he said you can't shout fire in a crowded theater. This is a common mantra often used by folks to justify censorship in any given context. So, what are the standards for determining whether speech falls outside of First Amendment protection? What is the standard for incitement? What is the standard for fighting words to the extent that it's still good doctrine? And what is or is not protected under this kind of banner of hate speech?

Alex Morey: Sure. So I guess I can start –

Nico Perrino: Compound question. Good luck, Alex.

Will Creeley: We can tag team on this one, Alex, if you want.

Alex Morey: Yes. Okay. I'll start. So, the First Amendment does a really good job of setting the bar pretty high for unprotected speech. That's because in the US we really want the space for political discourse, even when it's, you know, unmeasured, even offensive, even hateful to be wide open because this is America. That's what we do here. However, the First Amendment does set the bar at some conduct that can include speech that is unprotected and for good reason. So, for example, you cannot make a true threat, a serious expression of an intent to commit unlawful violence. We see, however, people say like, this feels threatening, or he said that, or these protesters are saying that, and that's a threat. Ninety-five percent of the time, we are seeing speech that is not going to meet that standard, the serious expression of an intent to commit unlawful violence.

Yet people are calling it a threat. Lots of concept creep there. Another one we see thrown around a lot are our claims of harassment. This is harassing. The fact of protesters on Columbia's campus that are pro-Palestinian are harassing to Jewish students. In the educational context, there is a Supreme Court standard for discriminatory harassment. It can include speech, but it needs to be unwelcome speech that is so severe, pervasive, and subjectively offensive.

Will Creeley: Objectively offensive.

Alex Morey: Objectively offensive. I've said this too many times. Objectively offensive, not subjectively. That's very important. Typically, this is a pattern of conduct that effectively prohibits the victim student from availing themselves of an educational opportunity or benefit. So, this is a high bar. It's not insurmountable. But again, we need these clear, objective standards so that we don't have people saying, somebody said something on X or Twitter, that's harassment. Or somebody is protesting about something I find subjectively offensive, that is harassment. No, it needs to meet this standard, which is from 1999, Davis versus Monroe. The Supreme Court has said this is the standard and unless you are gonna meet that bar, it's not discriminatory harassment in the educational context.

Nico Perrino: Some of the justices worried that it wouldn't be speech protective enough if I recall correctly.

Alex Morey: But you know, we again, we see Davis harassment, you know, we see that bar met. It happens. It's not to say that discriminatory harassment doesn't happen in the educational context. It does. I think the Supreme Court did a good job of setting that bar high, but not insurmountable. Again, especially on public college campuses, private ones that make free speech promises, we want to see political discourse be as wide open as possible. With those rights, it comes the responsibility of sometimes having to hear viewpoints that you disagree with or that are upsetting to you, but that might not hit that bar. Other categories of unprotected speech, maybe I'll toss these over to Will, things like, you know, obscenity, libel, incitement to imminent lawless action. We've got our fighting words. These are things we see less in maybe the incitement thing we've seen pop up a few times in the last week or so, questions about incitement. But typically it's the true threats, the harassment, and then things like vandalism that we are seeing pop up right now on certain college campuses.

Will Creeley: I wanted to say thank you right now to everybody that we have not seen an obscenity angle in current protests. I'm quite relieved by that. There's been enough going on. Incitement is speech that is both directed to inciting or producing imminent lawless action and is likely to incite or produce such action. So, we have this question and we thought about this a lot with the congressional hearings and the three university presidents back in, what, 6 million years ago of –

Nico Perrino: December.

Will Creeley: -- November, December, with regard to “calls for genocide.” If I am a student and another student says, “From the river to the sea, Palestine shall be free,” I may find that speech repulsive and distasteful. But that does not yet, standing alone, cross the line into discriminatory harassment and incitement. Now, again, context matters here. That was an unpopular thing to say in that congressional hearing, but it is absolutely the case if that same student says, “From the river to the sea, Palestine will be free,” and is holding a weapon of some kind. We haven't seen that happen, just to be clear, but if that was the situation, then yes, that starts looking more like a true threat. If that same phrase is next followed by, okay, you know what to do, let's get this student, okay, now we're talking about incitement, again, or a true threat, or again, discriminatory harassment. Context really does matter here. The baseline from both the First Amendment standpoint and for FIRE, a free speech advocate, is that the vast majority of speech is protected. These exceptions are narrow, they're carefully defined, and for universities to fulfill their role in producing tomorrow's leaders in our pluralistic democracy, it has to stay that way.

Nico Perrino: Can one-off remarks meet the harassment standard articulated in Davis?

Will Creeley: That's a very good question. I tend to think no. I don't think, I mean, this is why, to borrow a quick page from our Title IX Sex-Based Discrimination discussions which are also going on at the moment, like we haven't had enough to do over here lately. In that situation just to get in the weeds for a second Department of Education is arguing that in fact now mandating that the harassment standard be speech that is severe or pervasive before it can produce what's known as a hostile environment and constitute actionable hostile environment harassment. Severe or pervasive is different than severe, pervasive, and objectively offensive. I think under severe or pervasive a particular one-off expression might constitute harassment.

I don't think that should be the result under the First Amendment. I think the First Amendment requires more. I think the speech has to be, and this is exactly what the justices were debating in Davis v. Monroe County Board of Education, Nico, which you alluded to before, a 5-4 decision with Justice Kennedy leading the dissent saying this isn't really speech protective enough. He was worried about exactly those kinds of one-off expressions. That's why we have the standard that's severe, pervasive, and objectively offensive, not just subjectively offensive, but a speech that a reasonable person would find offensive. That's a higher standard. I think free speech demands a higher standard.

Nico Perrino: I would ask also folks who are more sympathetic to one-off remarks meeting that standard to think about how that standard might be used against speech that they like, right?

Will Creeley: Absolutely.

Nico Perrino: If we give administrators the power to determine what is a severe statement and therefore punishable as harassment it will often be used against minorities on campus. It'll be wielded against conservatives. If you are a Jewish student or a pro-Israel student, it will be wielded against you. In fact, FIRE was founded in the wake of the Water Buffalo case at the University of Pennsylvania in the ‘90s, where a hate speech code was essentially used against a Hebrew-speaking Israeli student who shouted, “Shut up, you water buffalo,” out of his dorm room window. Water buffalo roughly translates to a Tabbahimah, essentially. So, he was making a rough translation in his head, which is used often, I think, in Yiddish as a loud or unruly person. That was one remark and he was punished under the University of Pennsylvania's codes. So, we need to be careful when we're deciding to give the government or college administrators at a private school the power to determine what is hateful or what is harassment based on a single remark. But then the question becomes, Will, is what if you have a bunch of individuals saying things one-off, can that then in the aggregate create a hostile environment?

Will Creeley: Yeah, this is a big question for us lately. I am very concerned about this theory. Someone smart called it to me, just a distributed theory of harassment where each individual speaker says something that on its own would be and is properly protected by the First Amendment. But then in the aggregate, and they snowball and create a kind of a larger hostile environment or harassment. I think that's a real problem. I think that in a situation like that, there's no appropriate remedy for the school. They can't punish each individual speaker for saying something that's protected. That would just silence a great deal of protected political expression. I think in that situation, what the school must do is ensure the safety of students who feel as though they are being singled out. They must ensure that no action crosses that line, but they can't silence individual instances of protected speech simply for contributing to a larger environment. I don't think that that remedy can be allowable because it would essentially eliminate the right to speak. No one speaker can be cognizant of all the other speeches happening on the campus and then adjust their behavior accordingly. That's just untenable.

Nico Perrino: Alex, I wanna ask you, we have a question from William. What are administrators allowed to do regarding non-student or faculty organizing on campus? If you think about Columbia, this is a campus in the middle of New York City. Although, Will, you're an NYU grad, correct me if I'm wrong, NYU didn't have any gates on its campus.

Will Creeley: No, it sure as hell didn't. In fact, I may be misremembering, but I think at one point, maybe I'm conflating, but somebody, somewhere there is a rattling around my head, there's a slogan, a university without walls. Is that NYU, or is it somewhere else? I think it's NYU. But yeah, there are no gates.

Nico Perrino: Yeah, at Fordham, you have a wall. My brother went to Fordham. And at Columbia, you have gates if I'm not mistaken, surrounding part of the campus. So, how do we think about access to campus by non-students or faculty members at some of these schools? Also, do their past practices or just how their campus is set up with a gate or not, lend insight into how they should respond?

Alex Morey: Yeah, well, I mean, private campuses can limit access. We've seen that happen at Columbia, having people show their IDs and the students that are interim suspended and some faculty who they're saying, we can't guarantee your safety because you're so outspoken. We're shutting off your ID so you can't come into campus as a private entity. This is private property and Columbia can do that. That said, it comes with consequences. There's a certain, it's not a great look. Of course, Columbia does have to ensure that students and faculty have access to campus before members of the public. On public college campuses, it can look a little different.

Again, it can depend on if there's state law saying these open outdoor areas of campuses are open to the public. Public college campuses should typically be open for all kinds of protests. You see, we've got street preachers often that will come onto public college campuses. That's an important part of being on a public college campus, seeing all the different speech that there is. It can be an important part of an education. So, I think broadly, we want to see as long as administrators can ensure student and faculty safety and the fact that the campus can run. We wanna see campuses be as open as possible to a variety of speech. That can be an important aspect of a college education. Will, I can let you jump in. You went to NYU, the cooler, hipper Columbia. That's how I always imagined it. It's like Columbia for hipsters.

Nico Perrino: You spent some time at Columbia though, didn't you, Alex?

Alex Morey: I spent a summer at Columbia at their journalism school. So, I know right where, you know, I was like right there where I've, you know, all those students are in that encampment. You know, it was definitely open to a variety of speech when I was spending some time there. Yeah.

Will Creeley: Yeah, I'm pretty sure Columbia rejected me for undergrad. So, I was very happy to go to NYU. Yeah, we just quickly on, I think there's an element of co-sponsorship in your statement, Nico, pardon me, that's NYU right now calling to say what? I think FIRE has fought rules against student groups interacting with larger national groups. There was a case in Texas at Tarrant County College where students wanted to have what they called an empty holster protest that they had worked out with a gun rights advocacy group where they would attend classes wearing an empty holster to protect against the rules regarding concealed carry on campus. They wanted to wear empty holsters and they cleared it with the police chief at a time as I recall that was signified that they were defenseless if something were to happen on campus. The school quashed the demonstration in part because it had been coordinated with an outside group.

FIRE worked with, I want to say the ACLU of Texas at that time, it was about 2010, so a while ago, to fight back. The federal district court agreed with us and said you can't restrict what students do. They have an associational right to work with groups off campus and that that kind of restriction is untenable. So, yeah, there's that and there's also the itinerant preacher cases that Alex mentioned. There's a case of the Sixth Circuit that says in some cases the public sidewalks outside of a public university campus, especially in an urban setting, are indistinguishable from just a regular old city sidewalk, so you can't have one rule that applies to one and not the other. I think that a university can make some distinctions as to who can access parts of campus with regard to their status, but FIRE has argued against that. We think that university campuses should be open, particularly public university campuses.

Nico Perrino: Well, you're seeing a little bit of the shade of co-sponsorship with some of the bans on Students for Justice in Palestine. The argument is that they're supporting the actions of Hamas by organizing these protests. I think they had one document that said that they're in common cause. Is this constitutional? I mean, is –

Will Creeley: No.

Nico Perrino: Yeah, go ahead.

Will Creeley: One of the foundational First Amendment student speech cases, Healy v. James involved a prospective group of students for a democratic society at what was then Central Connecticut State College. The university president of Central Connecticut State said, well, we've seen what SDS has done on other campuses, that they've been involved with violence and we're not gonna have that on our watch. So, they denied official recognition to this group and the Supreme Court says absolutely not. They have an association right that absent some kind of clearly stated intent to violate Central Connecticut rules, you can't deny them recognition just based on affiliation or some kind of action on behalf of folks who aren't on campus, that are members of the national group or other groups.

I think that same principle holds and that actually, interestingly, let me say this, all this feels intensely of the moment and immediate. However, it's worth recalling that these kinds of protests, even with encampments and arrests, have happened before. I was looking at newspaper reports from the 1980s at Cornell University where in the spring of 1985, over 1,000 students and faculty were arrested for setting up shantytowns, as they called it, to protest apartheid in South Africa on campus. So, really, all that's old is new again, to some extent. I don't know if that has any kind of predictive value, but it is useful just for thinking through the current problems, is that there has been historical analog.

Nico Perrino: Yeah. We have so far 82 questions. So, we're going to do our best to get through as many of them as possible. The next one I want to tee up is for you, Alex. It comes from Elise. And also, John had a question along similar lines. Were the students on the UT Campus doing anything illegal? This University of Texas of Austin. What led to the kind of large police presence descending on that campus?

Alex Morey: Yeah, as far as we can tell, no, this looks like a preemption of peaceful protest before it even began. This is a useful juxtaposition when it comes to the kind of analysis that we do. So, on Columbia's campus, you know, there's the right to peaceful protest, but these students looked like they were violating reasonable time, place, and manner regulations by camping out all day and all night. They had, I think at least 24 hours’ notice that they were going to be interim suspended. They were going to be arrested. Then ultimately Columbia sent the cops in. Never a good look to have cops in riot gear, but that's what happened there. Then we have a very different situation at UT Austin where it appears there was nobody in violation of, they hadn't even had the chance to violate reasonably implemented time, place, and manner regulations. They simply had said, “We are gonna have a walkout for Gaza. We are gonna have a protest,” and the police were sent in preemptively. We have this statement from Governor Greg Abbott saying, “This particular protest, expressing these particular views, I don't like. And I'm not gonna allow them on our campus.”

So, a very different situation, the latter at UT Austin, appearing to be very clearly viewpoint discriminatory to us and we were not happy to see it. But yeah, as far as we could tell, there was no violence that would warrant police showing up. That said, when we have big protests on campus, we do frequently ask college and university administrators, hey, you guys are institutions with billion-dollar endowments. Don't tell me you can't get the police to be on the scene just in case something goes wrong, to make sure that violence doesn't erupt amidst a peaceful protest. Then you can pluck out the disruptor or disruptors so that the peaceful protest can go on because that's the school's obligation as a public institution to honor peaceful protest. What we saw at UT Austin was a totally different situation. They were not honoring peaceful protest. They were shutting it down before it began.

Nico Perrino: We saw a lot of those sorts of arguments that you're alluding to there, Alex, in 2016, 2017, for example, where colleges and universities saying, “We can't allow Ben Shapiro to appear on campus because we can't secure the premises.” Well, no, that's the duty of a public institution, which is to protect constitutional rights and to have the right amount of security on hand so constitutional rights can be exercised.

Will Creeley: Yeah, this is an old saw. Nico, I'm old enough to remember, I've worked here long enough to remember. Bill Ayers, education professor, and former member of the Weather Underground during then-candidate Senator Barack Obama's presidential campaign. Bill Ayers was going around giving speeches on campus. I remember I think it was the University of Nebraska. You can check out our website, thefire.org for more details here. But the University of Nebraska, I want to say shut him down because of safety concerns. They said they couldn't keep him safe were he to come to campus. That struck us then and as I recall, I think struck a judge. I think it was challenged as being pretty ridiculous. As Alex says, these are serious entities, really kind of like small nation states that if they can't keep a willing audience safe to hear Bill Ayers speak, then they've really got a problem. So, you want law enforcement sufficient to allow for expressive activity and not law enforcement coming in to end expressive activity.

Nico Perrino: The concern and the implication in many cases is that these justifications are used as pretexts to discriminate based on viewpoint. In fact, where colleges and universities have claimed threats, we've sometimes filed public records requests and found that there was no legitimate threat actually levied against the school that would have justified shutting down the expression of constitutionally protected speech. I want to turn now to something that's somewhat similar, Sheldon asks, “Does the valedictorian of USC have any grounds to pursue actions against the university for not allowing her to speak?” Alex, maybe you wanna set that up and Will, you can piggyback on it.

Will Creeley: Yeah, sure, I can.

Nico Perrino: With the story behind the USC valedictorian.

Alex Morey: Yeah, no, but it's a big bummer for free speech at USC and it's a bummer for the opening of commencement season, which we have historically seen be a time when controversial speakers are, you know, disinvited or de-platformed. I don't know that we've ever seen a school effectively cancel its own valedictorian before. So, this is new and worse territory. So, nobody has the right to be the valedictorian. That is an honor bestowed by the college. You know, every college is going to be different. At USC, they basically say, you know, you got to have a high GPA and we have to take a holistic look at you as a student and who is gonna be the best student to represent our university. They chose Asna Tabassum and then the complaints about her viewpoints began. USC pulled one of what we think is the oldest tricks in the book, saying, okay, well, we're gonna just not let you speak at graduation.

We're not taking away your valedictorian status. We're not openly criticizing your views, but we're just gonna say, we can't guarantee your safety. Again, coming back to these safety rationales that are really transparent and we see that kind of thing all the time. Now it's spiraled into then a week later, USC is canceling all commencement speakers. Now they've canceled commencement for, I think, like 65,000 students or 65,000 people that are showing up to commencement every year. So, a really bad precedent to set at the outset of commencement season, which we have historically seen is pretty dicey. But yeah, she doesn't have any kind of legal recourse.

Again, USC is a private school, but they promise free expression. Another of these schools that makes First Amendment-like free speech promises. Once they canceled this speech, it definitely raised the specter of viewpoint discrimination. It raises questions about how USC values its expressive atmosphere on campus. It would raise concerns for me if I was a student or faculty member who had views similar to this valedictorian if USC was going to find ways to silence me in the future. Lots of questions there. Yeah, I guess I'll stop there and let Will jump in if he wants to add anything.

Will Creeley: I don't know, you got most of it. I'll just note that in California, uniquely, there's a law called the Leonard Law, which prohibits private nonsectarian universities from punishing students for speech that would be protected by the First Amendment at a public campus. But as Alex says, we looked into this one. There's a faculty committee that recommends students for valedictorian addresses. Had this been some kind of non-discretionary function that the university was performing we might have more grounds to be able to argue this is a punishment for protected speech rather than a retraction of an invitation offered at the university's discretion. However, that's not what we have here. But we did look into it.

Alex Morey: Yeah. One more thing I will point out is by censoring her, they really elevated her viewpoint beyond the attention that would have ever been paid to her valedictorian speech. You know, she's on Late Night, she's on, you know, every cable news network. She's writing op-eds, you know, if they wanted to silence her viewpoint here, we've got the Streisand effect. They're amplifying it more than ever. So, if they wanted to silence her, we see this time and again, you know, don't censor people. It backfires quite frequently.

Will Creeley: You could make the same argument, there's not quite the, you know, it's not a one-on-one comparison, but you can make the same argument with the response to the mass arrests at Columbia.

Alex Morey: Yep.

Nico Perrino: We've got just a clarification question from Eric when we're talking about the Davis standard for peer-on-peer harassment, severe, pervasive, and objectively offensive. What does objectively offensive even mean?

Will Creeley: It's what a reasonable person in that circumstance would think, and that is a, as you know, there's some wiggle room in there, right? It's not science. It's a holistic, contextual determination.

Nico Perrino: Yeah. Also on Davis, Israel asks, “But Davis was about elementary school. Would the same standard apply to college?”

Will Creeley: Yes, the same standard is applied to colleges and it's also applied in the Title VI context. Title VI is the federal anti-discrimination law. Davis involved Title IX, which is sex-based discrimination but Title VI is a federal anti-discrimination law that prohibits discrimination on the basis of race, color, and national origin. For the past four presidential administrations, Bush, Obama, Trump, and Biden, the Department of Education's Office for Civil Rights has interpreted that prohibition on discrimination in race, color, and national origin to include discrimination on a student's actual or perceived shared ancestry or ethnic characteristics or citizenship or residency in a country with a dominant religion or religious identity. So, anti-Semitic speech or speech that is directed towards somebody because of their shared ancestry or ethnic characteristics can also qualify. The Department of Education's Office for Civil Rights has a number of investigations right now into campuses and K-12 schools across the country for failure to address allegedly anti-Semitic hostile environment harassment. There's also private lawsuits ongoing on that front right now. So, stay tuned.

Nico Perrino: Yeah, thanks for answering that. That was the next question I was gonna go to from Richard who asked about Title VI and race and religion. We also have a question from Anne. Comment on supporting free speech in a polling meaningful environment for academic education, studying for finals, noise level, walking through demonstration to get to housing or classes. This is a concern that many people have that these protests have become so disruptive that you can't have a class, for example, that's a classroom that's on the quad without it being disrupted by amplified sound or loud chanting.

Will Creeley: Yeah. I think John McWhorter made reference to this in his New York Times column last week. I mean, that's right, if you have a protest, let's just say that doesn't involve the encampment issue, let's put that to the side. And the protest makes it impossible for classes to continue. Again, the university does have a substantial interest in allowing its educational operations to function and continue. The ways you might deal with that again are to require students to not use amplified sound, etc. If you're dealing with something where classes can no longer continue, the university has a stronger case about regulating that expression in some way. Now, again, that's got to be a high bar. I remember when we saw at Yale last year, I think it was last year when the head of the American Humanist Association and an attorney from, I think, the head of the Alliance Defending Freedom, an evangelical organization, were giving a speech on a Uzuegbunam Supreme Court decision at Yale Law, and the protest was such that the event could no longer go on. Well, that's a shout-down. I mean, that is preventing others from speaking.

So, that raises different and competing interests. So, to the questioners, the thrust of the question the university has to be able to continue, right? You have to be able to attend class. That's one of the kind of, I think, one of the many very depressing things about the past couple weeks here, in addition to the USC commencement and being outright canceled. Now you've got classes at Columbia having to go full remote. I remember I think it was somebody was a professor or involved in the synagogue, somebody said that if you're a Jewish student, just don't go to campus.

Alex Morey: Yeah, one of the rabbis and there was some conflicting information about like, the Rabbi LL is saying this and somebody else is saying, you know, but you never wanna have to get to that point.

Will Creeley: No, you absolutely don't and you need to be able to ensure that students can attend class and feel safe doing so. Again, I just, the focus of the university's response, setting aside the issue of encampments for a minute. You can ensure student safety and access without silencing speech. There is a way to do it. In fact, I think universities must do it. You have to be able to allow for peaceful protest and to allow students to get their education. Those ends should not be in conflict. If they are, as the legal director of a free speech organization would argue that there's always a way to thread that needle.

Nico Perrino: We have a question from Jacqueline who asks, “What options do colleges have to 1.) Define hate speech and, 2.) Deal with it?” And I'll take the moderator's prerogative here and give my thoughts first.

Will Creeley: Yeah.

Nico Perrino: Is that hate speech exceptions to free speech standards tend to be the exception that swallow the rule because what is considered hate speech is often very subjective. I'll recall a couple of years ago when Guy Benson, a conservative commentator, was going to speak at Brown University, and students organized a petition to get the university to ban him. The argument was that he was gonna come and spew hate speech because he supported capitalism, and capitalism was a tool of White supremacy. At Emerson College a couple of years ago, for example, you had the Turning Point USA Chapter there, handing out stickers that said, “China Kinda Sus,” which is kind of young person slang for suspicious, protesting everything that was happening with the Chinese Communist Party and some of their actions surrounding COVID-19. The president of Emerson sent a campus-wide email accusing TPUSA of anti-Asian hate and bias and suspending the student group.

Half of the student group, or a large proportion of them, were themselves Asian. One of the students, who was the vice president of the student group, was herself Asian. Nadine Strossen, who's a senior fellow at FIRE, wrote a great book about hate speech. I think the title is Hate, and then there's a subtitle that's escaping me. If my arms were long enough, and I could reach to my bookshelf across the room. I would pull it down and read that subtitle. But she said that that's always the problem that you have with hate speech codes. In theory, they might be great, but there's always that definitional problem that does not then result in the censorship of those very viewpoints that you implement the hate speech or the hate speech code to protect.

When the University of Michigan in the 1980s passed the big first hate speech code to address anti-Black racism on campus, who was the first student punished under that code? It was a Black student in the School of Social Work. Ira Glasser, who's the former executive director of the American Civil Liberties Union, talks about how in the 1970s, the National Union of Students in England was set to pass a hate speech code, and the Zionist Student Organization in that country supported it. A couple of years later, guess what was determined to be hate speech? Speech supporting Zionism.

Will Creeley: Yeah. On that note, really quick, Nico, just to jump in, to make it specific to this current moment. When those presidents were being excoriated for refusing to say categorically that a “call for genocide” would violate their policies and result in punishment. One of the things that FIRE pointed out, and I certainly pointed out, was that pro-Israel students, and pro-Zionist voices would be, just as you say, some of the first to be punished. Sure enough, I forget what campus it was recently, there's been a lot going on. But there was a former IDF soldier coming to campus and instantly was contested saying, how can we invite someone who's participated in and supports genocide to this campus? So, those kinds of subjective restrictions, whether it's on hate speech or calls for genocide, they have a way of boomeranging and punishing exactly those who call for it.

Real quick, just to answer the question, because I know we're running out of time here, the best way to deal with this problem is to stick to the categories of expression that are not protected by the First Amendment, true threats, incitement, discriminatory harassment, properly defined. Those capture a great deal of speech that I think in the common parlance would be thought of as hate speech. I would say that that kind of exacting narrow viewpoint and content-neutral standard is the best way out. In fact, probably the only principled way out without falling into the problem that Nico's describing so capably.

Nico Perrino: Will, can I ask you to maybe do the impossible, which is one of the questions we've got here?

Will Creeley: Oh, boy.

Nico Perrino: John asks, how would a FIRE-informed university president have answered Congresswoman Elise Stefanik's question, does calling for the genocide of Jews violate your university's rules on bullying and harassment? I want to preface this by also saying that leading up to that question, there was a conversation around whether from the river to the sea, Palestine will be free chants of Intifada were happening and allowed on their campus, the implication being that they would be unprotected speech. And then also Elise Stefanik asked each of the university presidents, MIT, Harvard, and Penn to answer in one word. Is it possible to answer a question about unprotected speech in one word?

Will Creeley: Yeah. I mean, the answer would be maybe, right? Then the answer would be if it meets the standard for true threats, incitement, discriminatory harassment, or is accompanied by violence, then absolutely it's punishable. Otherwise, it's a context-specific determination. I think what the university presidents failed to do, and what I'm happy to do here now, I think any kind of realistic appraisal of the current moment requires it, is to recognize that students are freaked out. That is a common thread throughout all of this. Both the different “sides” on the pro-Israel or pro-Palestinian side, students are all grieving, they're feeling under siege, they are exhausted, they are freaked out in two words. So, I would acknowledge the pain that can accompany those words. Nothing in the First Amendment requires us to say these words can't be harmful.

In fact, it's because of that pain and because of the anguish that words can inspire that's the very reason they're protected because we don't trust the government to arbitrate the use of that kind of power that words have and words carry. I mean, I would refer everybody to Snyder v. Phelps, Chief Justice Roberts, we don't ignore the fact that I'm paraphrasing wildly here that words can cause great pain. It's in fact precisely because that we don't let the government regulate them. So, I would have answered like that. Representative Stefanik would not have liked it, but it is the only correct answer from a free speech advocacy point of view and it is what the First Amendment requires. I would rather train tomorrow's leaders in free speech and the value of the First Amendment and the need for principle than I would in sacrificing those values for political expediency. We know that sooner or later the shoe will be on the other foot.

Nico Perrino: Well, that's exactly the argument that Aryeh Neier made in the late 1970s. Aryeh Neier was the head of the American Civil Liberties Union, the National ACLU, during the Skokie case. This is the case in which a small band of Neo-Nazis wanted to rally in a town where 6,000 Holocaust survivors lived. Aryeh Neier was himself a Holocaust survivor. He and his family escaped Germany, Berlin, in fact, when he was 2 and they learned that their extended family all perished or murdered in the war. He said that one of the questions that he most frequently got leading the ACLU at that time was, how can you, a Jew, defend freedom for the Nazis. He would receive angry letters from supporters. One proposed a new motto for the ACLU, First Amendment Uber Alice.

And he said, and he writes in his book, Defending My Enemy, which I'd encourage everyone on this call to listen to, which is his case for why we should defend even the speech rights of those who would call for our elimination. His argument was that “The chances are best for preventing a repetition of the Holocaust in a society where every incursion on freedom is resisted.” He writes, “Freedom has its risks, but suppression of freedom, I believe, is a prescription for disaster.” He also argues that, “The lesson of Germany in the 1920s is that a free society cannot be established and maintained if it will not act vigorously and forcefully to punish political violence.” Goes on to say, “Violence is the antithesis of speech. Through speech, we try to persuade others with the use of our ideas. Violence, on the other hand, terrorizes with the force of arms. It shuts off opposing points of view.”

So, we have a reading list for folks here. Defending My Enemy by Aryeh Nair, and also Nadine Strossen's book, Hate. Alex, I wanna give you the closing word. If you can just kind of tie a bow on where things are at, and also just like the situation on college campuses for freedom of speech has been challenging for years, hasn't it? It’s not like we woke up two weeks ago and all of a sudden free speech was in crisis on these campuses. We keep waiting for the dull week at FIRE and it just hasn't come, has it?

Alex Morey: Don't say that. Yeah, you know, one of the things that initially occurred to me and the folks on our team was just, in some ways, it's not surprising that here we are at this moment. It seems in many ways like a natural consequence or coalescing of a lot of the really subpar free speech policies and free speech practices and those pro-speech mindsets that we have seen just really devolve on campuses for at least the better part of a decade. More than a decade ago, when FIRE started, students were a pretty good constituency for free speech on campus. It was the administrators that we were looking at. Now, many students care about free expression, but not too many. There are more than we would like that would prefer things like bias response type teams and hate speech restrictions for whatever side for against whatever side they disagree with ideologically.

So, we have been urging college and university administrators, particularly since October 7th, to say, look, this is a teachable moment. All the things that we've been telling you for years, decades here at FIRE, it has come to a head now that post October 7th, what side, for example, as a campus administrator can you reliably take? Can you take a political side when it comes to Israel-Palestine? Not if you don't wanna anger half of your constituency. So, here's a great example of why you should commit to things like institutional neutrality, saying we as a institution are gonna be the host and sponsor of critics, not the critic itself. We're not gonna put a thumb on the scale of the debate here. Instead, we're going to return to our viewpoint, content-neutral, free expression policies. We're gonna make sure those policies treat everyone equally. We're gonna give everybody due process. We're gonna lean into these moments when students are saying, we wanna talk about this stuff.

We're passionate about what's happening in Israel and in Gaza. And instead of just playing censorship whack-a-mole, instead saying, we are gonna marshal all our resources to make sure that you guys can have these discussions, the skills to have these discussions, the desire to talk across lines of difference in a way that is exactly the purpose of a college or university. We think universities and colleges are missing this important moment. We want them to meet the moment so we at FIRE don't have to. We don't have to start writing the letters and say, “You're doing it wrong.” We want them to know what their job is and to do it well. That's what we, we wanna go out of business still. And yet after 25 years, we would love to not be here.

Nico Perrino: I am reading the comments right now and Israel and Craig informed me that defending my enemy by Aryeh Nair costs $400 on Amazon.

Will Creeley: Is that right? I'm sure you can find it –

Nico Perrino: It might not be in print anymore. I don't know.

Will Creeley: Well, I remember I got my version on eBay maybe 10 years ago or so and this is where I like to plug a library. So, if your library doesn't have a copy you should demand it.

Nico Perrino: Yeah. Will, actually, you know, I'll take the moderator's prerogative here. Can you just kind of one minute explain what the purpose of a civil liberties organization is?

Will Creeley: Yeah, we're here no matter what, right? That's one thing I want to reinforce for everybody on the call. Over the 16 years I've now been doing this work, we have defended both sides of this question that is pro-Israel, and pro-Palestinian speech repeatedly. That's on almost every other major question I can think of, from abortion to animal rights, partisan politics, you name it. Our mission here is to defend speech if it's protected. That's it. That's the only rule. We want to be, and I would argue that our record demonstrates us to be, very consistent. We stay in the same place no matter what. That's the role of a principled, effective civil liberties organization. That's certainly what we're doing here at FIRE. So, if these answers today feel difficult or challenging, I get it. However, we will give that same defense to all speech, including some speech you like, right? If you don't like this speech, stay tuned. The weather will change. We will be there all the same. That's the work that we have in front of us. That's the work we've been doing proudly and that's the work, it's my honor to continue to do.

Nico Perrino: We'll drive this bus into the wall if that's what it takes to remain principled. When you're a free speech advocacy, organization all that you have are your principles.

Will Creeley: That's all you got.

Nico Perrino: So, I'm very honored to work both with you, Will Creeley, our Legal Director, and Alex Morey, our new Vice President of Campus Advocacy. I want to apologize. We have 93 still open questions. We only budgeted an hour for this conversation, but I would encourage you if you enjoy these conversations and want a better chance of your question being answered live during the conversation to become a FIRE member. This conversation was open to the public, but we have once-monthly FIRE member-only calls with a smaller group of people where we will do our best to get to your question. Some of the FIRE folks might be following up with you personally to the extent we can. This conversation is also gonna be hosted on the FIRE Podcast, So to Speak, the Free Speech Podcast, where I am your host, Nico Perrino. I didn't introduce myself at the top, but I suspect listeners, so to speak, are familiar with my voice.

Of course, all of you participating here on Zoom can see my name and title conversation. If you're interested in subscribing to So to Speak, where we cover all sorts of free speech topics and have done so for, it's hard to believe, I think seven years now, go on to any podcast app, and subscribe. If you enjoy what you listen to, please rate and review. Until next time, I thank you all for attending and thank you for your good questions. Will and Alex, thank you for your good answers.

Will Creeley: Thank you so much.

Alex Morey: Thanks Nico.