We recently discussed the controversy at Washington University in St. Louis after Student Senator Fadel Alkilani pulled up flags memorializing 9/11 and throwing them into the trash. At the time, I raised the issue of whether preventing or destroying the speech of others is itself an exercise of free speech. Now, Law Professor Gregory Magarian has gone public with his view that Alkilani was indeed engaging in free speech and criticizing the position of the school in condemning his actions without also recognizing the discomfort for many in seeing the flags as a “powerful, contestable political statement.”.
In an essay, Magarian objected to Washington U. Chancellor Andrew Martin’s statement that “the actions of this student to be reprehensible. The removal of the flags impeded the ability of individuals to commemorate the lives lost on 9/11 and to process the trauma of that day.”
That seems a fairly mild response. Indeed, as I noted in the earlier posting, I believe Alkilani should be formally sanctioned for his conduct and expelled if he continues such conduct.
Professor Magarian does recognize that what Alkilani did was wrong but views the university also at fault. Indeed, perhaps at greater fault:
“The university is correct, in my view, that Alkilani’s action – or more accurately, the form he chose for his own expression – violated free speech norms. However, other features of the university’s response to these events undermine, rather than promote, the values of free speech and open debate at Washington University.”
Magarian repeatedly emphasized that this was a display put up by Republicans and “[t]he College Republicans’ flag display was a powerful, contestable political statement.” I am not sure that I agree that this was such a “contestable political statement” in memorializing the dead of a national tragedy with small flags.
Magarian focuses on the symbol of the American flag and notes that many of the victims “would likely object to having their personhood reduced, in the service of a political message, to their national identity.” He also noted that many of the victims were not American citizens and that “the College Republicans’ flag display made a political statement by casting the significance of 9-11 as extending only to the events and deaths of that day.” I do not agree with those views but I certainly agree with Professor Magarian that the memorial was an expressive act that some opposed. Clearly, Alkilani viewed the flags in the memorial as “contestable” and even contemptible. Indeed, this week, there is a similar controversy on the Fairfax County Public School Board where Abrar Omeish opposed a 9-11 Memorial statement.
Where we part ways is how Magarian portrays the university statement as endorsing a specific political message when Martin said that “The removal of the flags impeded the ability of individuals to commemorate the lives lost on 9/11 and to process the trauma of that day.” Margarian objects that “[m]aking that statement without acknowledging how the flag display itself might have impeded other individuals’ ability to commemorate their losses and process their trauma constitutes an endorsement of the College Republicans’ contestable political portrayal of 9-11.”
I fail to see why the university statement defending the right of people to create and observe such a memorial must be accompanied by a statement that the display “impeded others” in being able to deal with their own “losses and process their trauma.” Such individuals are allowed to create their own displays or to protest this display. The speech of these students in no way impeded their own speech. What Alkilani did impeded speech.
As we previously discussed, 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 also previously discussed the case of Fresno State University Public Health Professor Dr. Gregory Thatcher 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.
Professor Margarian objects that the university has not responded to attacks and hate speech directed at Alkilani. Any such racial or religious attacks certainly should be condemned. However, Margarian seems obsessed with the fact that the memorial was created by Republicans and insists that the university publicly discuss how the memorial is offensive to some. Such statements invite bias. The University was defending the right of free speech against the denial of free speech. That was sufficient.
The most concerning aspects however is how Margarian treats the exercise of speech as potentially harmful. He also seems to question the traditional liberal value of allowing any bad speech to be countered by better speech. (“Counter-speech is not always the panacea for putative bad speech that traditional civil libertarians make it out to be.”).
In my view, the university has not gone far enough to address the destruction of this memorial. It may still do so. WashU’s Code of Conduct prohibits the “theft, attempted theft, unauthorized taking or use of any University, public, or private property,” as well as “unauthorized entry, deliberate destruction of, damage to, malicious use of, or abuse of any University, public, or private property.” Even if Alkilani argues that the flags were no longer anyone’s property when it was left in public, it was still an exercise of free speech. An attack on free speech should be treated as one of the most serious offenses that can occur on a college campus.
Again, it should be noted that Professor Margarian does not endorse the actions of Alkilani and says that he should have used counterspeech in this circumstance. However, the criticism of the university is laced with troubling notions of how the university should act to counteract the harms of free speech.