Law Professor: Tearing Down 9/11 Memorial is the Exercise of Free Speech

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.

 

 

35 thoughts on “Law Professor: Tearing Down 9/11 Memorial is the Exercise of Free Speech”

  1. These people protesting our flag and the US specifically should be sent off to live in a third world country somewhere. Or maybe Venezuela.

    1. Anonymous says:

      “These people protesting our flag and the US specifically should be sent off to live in a third world country somewhere. Or maybe Venezuela.”

      Are you outraged that Turley is adamantly opposed to your desire to deport these flag protestors?

  2. Since when is vandalism considered free speech?

    That’s the premise of the domestic terrorist group Antifa. It’s the excuse of BLM throwing bricks through shop windows and looting.

    1. Karen Says:

      “Since when is vandalism considered free speech? That’s the premise of the domestic terrorist group Antifa. It’s the excuse of BLM throwing bricks through shop windows and looting.”

      Or Trumpists “Desecrating” the Capitol as NeverTrumper Turley called it.

        1. I’ll thank you to remember my name is “Silberman,” Anonymous. Turley would not approve of your name-calling. Please make Turley proud that you are a contributor to his blog and not an embarassment.

      1. Jeff, the Jan 6th people have been charged with crimes ranging from trespassing to illegally parading. A couple of them were found with firearms in their vehicles, although not inside the Capitol. They were charged with weapons charges.

        Again, anyone who vandalizes anything is not engaging in free speech; they are committing vandalism, which is a crime. Conservatives have explicitly said that breaking or damaging private or public property is not OK, hence why we howled for a year about the Democrats rioting, looting, burning, and assaulting people, causing millions in damage, driving businesses to permanently close, driving jobs away, and killing people.

        Up until Jan 6, violence was the albatross hanging around the Democrats’ necks. They couldn’t deny that they had committed crimes on a massive scale, even seizing entire city blocks, keeping out the police which led to murder and rape. Their movement led to defending of police in areas that subsequently experienced skyrocketing crime and murder, while cops retired, quit, or transferred in record numbers. Violence and crime was the consequence of Democrat policy. Like you, they refused to admit the party had a problem with public unrest and violence. They ignored pleas from businesses and residents, afraid for their safety.

        When Jan 6 happened, Democrats suddenly cared about law and order, and trespassing. They called a bunch of people who posed for selfies and broke windows seditionists who tried to overthrow the government. After ignoring their own party’s year of violence, they greatly exaggerated what occurred on Jan 6. They ludicrously tried to paint the entire Republican party as seditionists. After calling every election they’d ever lost a stolen election, generated an avalanche of lawsuits, all of a sudden, it was sedition for anyone to question an election a Democrat won. Democrats refused to condemn BLM and Antifa riots, even bailing them out, while Republicans and Libertarians roundly condemned the law breaking on Jan 6. Democrats were mostly not charged for looting, rioting, and arson, while people who committed simple trespass were kept in solitary confinement for months.

        This is the behavior of a banana republic, not a lawful country of laws.

        But don’t let the truth get in your way.

        What you, and everyone like you, fail to understand is that conservatives are trying to prevent tyranny and human rights abuses. We’re the ones fighting to preserve individual rights, free speech, and limited government, while Democrats have eroded individual rights to create a more powerful government. Arm bands and reeducation camps are not that far off. It’s Democrats who have brought back systemic racism, judging people based on skin color. Democrats fuel the craze for castrating children. It’s not enough for gay people to get married. Now you have to custom create a cake celebrating the wedding, or a cake celebrating that a man can just decide to be a woman and beat the snot out of a woman in women’s boxing. If you don’t, you’ll be sued until you are impoverished and out of business. It’s Democrats who assault people in restaurants, demanding loyalty oaths or harassing political dissidents. It’s Democrats creating a caste society, where you can’t work in many industries unless you’re a Democrat. You can’t go to school, to many businesses, or keep your federal job unless you’re vaccinated, even if you have superior immunity from recovery from Covid.

        The Democrat Party is all about pitting people agains each other. It’s torn up E pluribus unum and replaced it with Balkanism and tribalism. It’s doing the dirty work of China and Russia, both of which want the US destroyed from within.

        You think you’re fighting for the right reasons, but what you’re actually doing is contributing to fascism and tyranny.

        1. Karen S says:

          “You think you’re fighting for the right reasons, but what you’re actually doing is contributing to fascism and tyranny.”

          And you support Trump’s lies, and Turley and I don’t.

  3. Me-thinks … Yet one more law school graduate turned professor … From clerking to a Justice to teaching in a law school ….

    Having earned a law degree in 1969, when coursework and professors trained us in the law and how to practice it in the real world to earn a good living) to today: indoctrinate students in what professors (and some students) think the law is or should be from a political or social standpoint, depend on so many using their degrees to work as something other than attorneys, etc.

    Folks such as Magarian are only law school graduates who call themselves lawyers – while their personal political opinions color all they say and write. They are not “attorneys” because that profession identifies lawyers who have clients – the real world of the practice of law. (Look to the Latin word attorn.)

  4. Well, rather than taking someone else’s property, that was on university grounds, while it may be in public, the university still approved of the display and should be respected as a sanctioned university memorial, Mr. Alkilani should of applied through the same channels as the College Republicans did.
    Then put up his own display as a counter to what he felt was a “contestable political statement.”
    And everyone should respect that display. Perhaps even generate some civil discussion or debate.

    What does Professor Turley call that?
    More free speech?

  5. Liberals used to believe “your freedom to swing your fist ends where my nose begins”.

    Fake, contemporary so called “liberals” believe “your freedom to speak ends where my feelings begin.”

  6. The flags were still property and someone’s property. The people who bought them and planted them owned them. If an organization owned them so what? The person who took them was a thief. He destroyed them when trashing them.
    Charges: theft. Destruction of property. Trespassing on public property owned by the university to do harm.
    Free speech? BS. No way Jose.
    What’s wrong with the author of this article?
    Lawyer? Jeso.

    1. Liberty2nd says:

      “Destruction of property. Trespassing on public property owned by the university to do harm.
      Free speech? BS.”

      That’s why Turley called the 1/6 riot a “Desecration” and the trespassers and rioters should be punished despite Trumpists calling them “patriots.”

  7. Was the First Amendment really meant to become an exercise in relativism, where anyone’s actions and their opponent’s reactions can both be justified as “free speech”? Puting up flags and tearing them down are both “free speech”? Is there no higher standard to judge actions?

  8. I honestly thought this was addressed in a 2019 SCOTUS ruling where Gorsuch wrote an opinion that basically said that in a country with 350 million inhabitants there is going to be significant dissent on memorials and whatnot and you don’t get to tear something down just because you disagree with it.

  9. This event is a good example of, ‘the cure for bad speech is more speech’.
    More speech requires effort to craft your message to persuade people to your opinion.
    But there in lies the problem, if your opinion lacks facts, depth, and reason. More speech that is centered on your preferred result, rather than shared care beliefs, is seldom meaningful, thus persuades no one.

  10. Speech….is verbal statements…or the use of one’s own property to display a message.

    Tearing down other’s property, stealing other’s property, preventing others from expressing their views and opinions is not Free Speech.

    Theft done in protest is just as much a crime as assault done against someone expressing their views and opinions.

    The State…by. means of the Criminal Justice system should prosecute the guy for theft and damage to property and the University should expel him from the school for his crimes.

    His was not speech…it was. criminal misconduct.

    When will the Left grasp that notion…including Professor Turley.

    The British have a place in Hyde Park called Speakers Corner….where anyone can take a stand upon a box and spout off at will….no one has removed that Box…..there is your example of how Free Speech is supposed to work.

    That Box is symbolic of the concept of the equality of all types of free speech….where ideas are challenged, defended, but all view points are safe and proponents are free to speak their mind without being assailed, assaulted, or attacked….except by words alone.

  11. Any day now Lawrence Tribe will argue that the Haitians on the US Border in Del Rio, Texas should be deported because they are not true people of color, thus it is not racist of Democrats to eject these Blacks from the USA. Jeffrey Toobin is keeping track of the hot black mamas via Zoom for his excited, breathless CNN commentary

    😜

    While the president took a long weekend relaxing at the beach in Delaware, another self-imposed crisis blew up in his face. The migrant shantytown under a concrete overpass in Del Rio, Texas, had ballooned to 15,000 souls, mainly Haitians. They were running out of food and water amid dangerously unsanitary conditions. With a pipeline of hundreds more flooding across the Rio Grande from Mexico every day, a humanitarian disaster was unfolding and the media were starting to pay attention.

    NY Post

    1. They are not politically congruent (“=”). They are not “people of color” (i.e. diversity class, color bloc, racist designation), but merely colored people… persons.

  12. Well here’s the explanation for the warped view of free speech: “Professor Magarian served as a judicial clerk for Justice John Paul Stevens of the U.S. Supreme Court and Judge Louis Oberdorfer of the U.S. District Court for the District of Columbia. He practiced law at Jenner and Block in Washington, D.C. and taught at Villanova University before joining the Washington University faculty in 2008.” Loons of a feather ….

  13. Just wait, Turley, to read the hate speech which will be directed at Alkilani and Margarian by your contributors here for which you will have no condemnation.

    This is what some here believe is “good faith argument” Wailing agains something never said. For some reason this quote comes to mind

    “‘There is a principle which is a bar against all information, which is proof against all arguments and which cannot fail to keep a man in everlasting ignorance—that principle is contempt prior to investigation.'”

  14. Turley says;

    “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.”

    Just wait, Turley, to read the hate speech which will be directed at Alkilani and Margarian by your contributors here for which you will have no condemnation.

    1. JeffSilberman wrote, “Just wait, Turley, to read the hate speech which will be directed at Alkilani and Margarian by your contributors here for which you will have no condemnation.”

      That statement is pure unbridled bigotry.

      P.S. Jonathan Turley doesn’t comment on his own blog posts and you assuming that he has no condemnation of ad hominems is itself an ad hominem.

    2. “Just wait, Turley, to read the hate speech which will be directed at Alkilani and Margarian by your contributors here for which you will have no condemnation.”
      ****************************
      Oh my… JT’s not responsible for everything someone else does? Where will the moral depravity end? Do you read the stuff you bleat?

    3. Silberman says: ‘Blah, blah blah FOX, blah blah blah TRUMP, blah, blah, blah.’. His head must be a miserable place to spend time. Get out of the ivory tower and breathe now and again, Jeff. Maybe actually talk to another human face to face.

      1. James criticizes my bad speech:

        “Silberman says: ‘Blah, blah blah FOX, blah blah blah TRUMP, blah, blah, blah.’”

        Is James’ reply what Turley had in mind when he counseled Trumpists to contest bad speech with good speech?

    4. Jeff Silberman is convinced that JT’s readers will spew “hate speech” at the “hate speech crowd.” It seems he is hoping for that to happen, so he can say “I told you so.” Unfortunately, the commenters on JT’s site, are too informed and too professional for that to occur. The real purveyors of hate speech, are generally those who use hate speech themselves, and then try to cover it up by blaming others for their own wrongs.

      1. Old Owl says:

        “Jeff Silberman is convinced that JT’s readers will spew “hate speech” at the “hate speech crowd.” It seems he is hoping for that to happen, so he can say “I told you so.”

        I was hoping my pre-emptive statement might disincline the usual Trumpist invective thrown at those who Turley holds up to criticism. It seems to have worked!

        1. I smile,- find it rather amusing to read JeffSilberman, as he criticizes others for expressing their opinions, -while he continuously engages in fake condescension and name-calling. Let’s go back and pull up his comments and see how many times he has “dismissed” others comments as coming from “Trumpists.” Quite a fragile ego, I say…

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