As we discussed yesterday, there are different views of what occurred on 9/11 that are expressed (appropriately) on our campuses. Indeed, while some have criticized the holding of critical forums on the anniversary, it is precisely the type of diversity of viewpoints that sustains higher education. However, a student senator at Washington University in St. Louis has triggered a free speech debate after he allegedly removed American flags from a 9/11 memorial display and threw them into the trash. While condemning the action, the school has taken no action against Fadel Alkilani, vice president of finance for the student union. A common argument on campuses today is that shutting down the speech of others is itself an exercise of free speech — something I have long contested.

In a video posted by Young Americans for Freedom, a student identified as Alkilani can  be seen stuffing the 2,977 small American flags into bags and attempting to carry them away.  He reportedly attempted earlier to destroy the memorial but was stopped by campus police.

Alkilani reportedly told YAF, “I did not violate any university or legal policy. Now go away.”

Julie Flory, the university’s vice chancellor for marketing and communications, issued a statement that notably did not include any statement of intent to sanction or expel Alkilani.

“We were disappointed to learn about the disruption to the 9/11 display on Mudd Field,” the statement read. “We condemn the interference with the expression of support by the College Republicans for the victims of the national tragedy that took place 20 years ago today.”

The incident raises an ongoing debate over whether such destruction or obstruction of speech is itself protected speech. We discussed this issue recently with regard to a lawsuit against SUNY. It is also discussed in my forthcoming law review article, Jonathan Turley, Harm and Hegemony: The Decline of Free Speech in the United States, Harvard Journal of Law and Public Policy (forthcoming).

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. (Bilek later cancelled herself and resigned after she made a single analogy to acting like a “slaveholder” as a self-criticism for failing to achieve equity and reparations for black faculty and students).

We previously discussed the case of Fresno State University Public Health Professor Dr. Gregory Thatcher who recruited students to destroy pro-life messages written on the sidewalks and wrongly told the pro-life students that they had no free speech rights in the matter.  A district court has now ordered Thatcher to pay $17,000 and undergo First Amendment training.  However, Thatcher remained defiant and the university appeared complicit in his actions by the lack of disciplinary action.

The pro-life students had written messages on the sidewalk like “You CAN be pregnant & successful” and “Unborn lives matter” to “Women need love, NOT abortion.”  Thatcher got students from his 8 a.m. class to help remove the anti-abortion messages and their chalk was taken away to write pro-choice slogans on the sidewalk. The students seem entirely unconcerned that they are censoring speech and engaging in a grossly intolerant act.  Instead, they refer to their teacher as telling them that they should do so.  Thatcher then walked up.    Thatcher invoked the controversial restriction of free speech to “zones” and says that there is no free speech right for this type of writing outside of that zone.  When the students explain that they have permission, he then proceeds to rub out their messages and declared “you have permission to put it down — I have permission to get rid of it.”

A few years ago, I debated NYU Professor Jeremy Waldron who is a leading voice for speech codes. Waldron insisted that shutting down speakers through heckling is a form of free speech. I disagree. It is the antithesis of free speech and the failure of schools to protect the exercise of free speech is the antithesis of higher education.

I would support Alkilani in putting up a counter display advancing his own view of 9/11. I would also support his demonstrating against the demonstration. Unlike a speaker, he can demonstrate around the flags without destroying or obstructing the original display. When students destroy displays or enter speaking venues to prevent people from hearing opposing views, they are not engaging in free speech. They are engaging in acts of censorship, intimidation, and obstruction. I have long recommended that such students be disciplined, including expulsion for those who refuse to comply with prior warnings.

Yet, students like Alkilani believe that they have license to silence others — a view reenforced by schools which do not even fire professors who physically assault people on campus.

Update: You can read Alkilani’s statement on the incident here.