We have been discussing how universities and colleges often show passivity as opposed to animosity in such controversies, failing to protect events or declining to punish faculty or students who shutdown classes or speeches. Indeed, we previously discussed the shutting down of a speech by economist Arthur Laffer, an attack on free speech and academic freedom is now part of this lawsuit. The ability to litigate such questions however can be tricky and it will be interesting to see how the court treats the pre-trial motions to dismiss.
The attack on College Republicans was captured on videotape. Notably, you can see the intervention of campus police but there is no action to allow the Republican students to continue their advocacy after their tables are broken down and material scattered by activists.
The conservative YAF organization posted the videotape of the encounter that is now evidence in their complaint:
The lawsuit does raise an important question over the failure of universities to suspend or expel students (or fire faculty) who prevent others speaking or listening to opposing viewpoints. The right to protest speeches by figures like Laffer is also protected. However, entering halls or classroom to shut down speakers is itself a denial of free speech and academic freedom.
This has been an issue of contention with some academics who believe that free speech includes the right to silence others. Berkeley has been the focus of much concern over the use of a heckler’s veto on our campuses as violent protesters have succeeded in silencing speakers, even including a few speakers like an ACLU official. Both students and some faculty have maintained the position that they have a right to silence those with whom they disagree and even student newspapers have declared opposing speech to be outside of the protections of free speech. At another University of California campus, professors actually rallied around a professor who physically assaulted pro-life advocates and tore down their display. In the meantime, academics and deans have said that there is no free speech protection for offensive or “disingenuous” speech. CUNY Law Dean Mary Lu Bilek showed how far this trend has gone. When conservative law professor Josh Blackman was stopped from speaking about “the importance of free speech,” Bilek insisted that disrupting the speech on free speech was free speech.
SUNY is a state school and subject to first amendment limitations government state action against free speech. These controversies however turn not on action but inaction; the failure to guarantee the exercise of free speech. There is no question that nonfeasance can be actionable. However, it raises more difficult questions since there is an element in discretion in how police respond to potentially explosive situations on campus. You can see police at both the College Republican and Laffer incidents.
The same difficulty arises in the failure of school’s to discipline students who are clearly identifiable in these videos. Indeed, they seem eager to be identified. It is doubtful that a similar act of other groups would have been addressed with such timidity by the school.
The complaint tries to convert this pattern into an actionable case. Yet, it also raises countervailing concerns of the court interfering with the free speech rights of the liberal groups by asking for such relief as “a permanent injunction enjoining College Progressives and PLOT from unlawfully disrupting and silencing Plaintiffs’ speech and related activities.”
Notably, as the complaint below discusses, there was a consent decree in June 2017 in connection with such failure to protect free speech activities at SUNY-Buffalo. The court denied a motion to dismiss by SUNY-Buffalo defendants after finding that the “plaintiffs’ alleged loss of opportunities to express themselves in the way they preferred when the University defendants allowed counter-demonstrators to [block their expression] [was] sufficient to allege that the defendants took adverse actions against plaintiffs.” Decision and Order Denying Motion to Dismiss, Center for Bio-Ethical Reform v. Black, 1:13-cv-00581-RJA-HBS (W.D.N.Y. Feb. 10, 2017), ECF No. 23.
SUNY then decided to stipulate that it would “take all reasonable measures to enforce its policies against deliberately disrupting or preventing the freedom of any person to express his or her views.” SUNY-Binghamton committed to follow the same agreement. Stipulation of Settlement and Discontinuance Pursuant to Rule 41(A), Center for Bio-Ethical Reform v. Black, 1:13-cv-00581-RJA-HBS (W.D.N.Y. June 2, 2017), ECF No. 30.
However, the Plaintiffs now argue that the school is engaging in passive encouragement of the heckler’s veto and refusing to protect conservative students, which the Plaintiffs refer collectively as the “Speech Suppression Policy.”
The school however has objected that these groups contributed to problems by holding a public event with Laffer rather than a ticketed event to prevent hecklers.
One aspect of the Complaint that stood out to me was the move by the university after the incident with the table to suspend the College Republicans. Putting aside the alleged lack of action against those who tore down the table, the university is accused of applying a biased policy of enforcement. The group was told that it was being “suspended . . . due to [their] violation with both University and Student Association policy [sic] in regards to tabling without proper approval on Thursday November 14th.” The Plaintiffs allege that other groups have not been required to satisfy that police. That could present an issue for discovery to show that other groups regularly had tables without permits.
Given the prior agreement on supporting free speech activities, there is a credible basis for at least part of this complaint to proceed to discovery. That could produce some uncomfortable moments for the university as the plaintiffs would then have open space to run on allegations of unequal application of permitting rules and prior knowledge of planned disruptions by activists. The failure to take actions against students who block the exercise of free speech will also be a likely focus.
To be sure, these are not easy cases for courts. However, there has already been concern expressed by judges that universities are passively enabling groups to shutdown conservative voices on campuses while supporting or even amplifying liberal voices. As we have discussed, there is a pattern across of the country of universities refusing to act to prevent faculty members and students from disrupting classes, barring events, stopping job fairs, and shouting down speakers.
Such students claim the right to prevent other students from participating in classes or events — a similar complaint raised against the protests against James Comey at Howard University as well as schools like William & Mary. Likewise, the Homeland Security Secretary was prevented from speaking at Georgetown. For years, I have written about the loss of free speech protections and why universities must take action in such disruptions of classrooms like an incident at Northwestern University where the university took no action against students barring an actual class. Later students stopped former Attorney General Jeff Sessions from speaking to the community.
This violates a core defining value of our academic institutions and such students should be suspended for such conduct. There is a difference between voicing your views and preventing others from speaking, particularly inside of a classroom. When you claim the right to prevent others from hearing opposing views or speakers, you are at odds with the academic mission of these universities. When universities fail to take action, they are complicit in the misconduct.
Here is the complaint: YAF v. Stenger