We have been following the controversy at Georgetown over the effort to fire conservative law professor Ilya Shapiro. Now, the campaign to cancel Shapiro has extended to other schools, including law schools where free speech should be most fervently and faithfully defended. Yet, students at the UC Hastings College of Law in San Francisco shouted down Shapiro to prevent others from hearing his views on the upcoming confirmation hearings for Judge Ketanji Brown Jackson. What is particularly chilling is to see the support of some faculty in this campaign.
Shapiro is under fire for his opposition to the pledge by President Joe Biden to limit consideration for the next Supreme Court nominee to a black female. Shapiro sent out a horrendously badly worded tweet that supported a liberal Indian-American jurist as opposed to a “lesser black woman.” He later removed the tweet and repeatedly apologized. He explained that he was referring to lesser qualifications vis-a-vis his preferred nominee, Sri Srinivasan, a liberal judge on the D.C. Circuit.
Georgetown faculty has supported the effort to fire Shapiro, including my former colleague Paul Butler whose op-ed in the Washington Post is being cited by Hastings faculty and students for barring Shapiro from speaking.
Many of us have encouraged Georgetown to resist such calls in support of free speech and academic freedom protections.
I have defended faculty who have made similarly disturbing comments including “abolishing white people,” “detonating white people,” denouncing police, calling for Republicans to suffer, strangling police officers, celebrating the death of conservatives, calling for the killing of Trump supporters, supporting the murder of conservative protesters and other outrageous statements. I also defended the free speech rights of University of Rhode Island professor Erik Loomis, who defended the murder of a conservative protester and said that he saw “nothing wrong” with such acts of violence.
Even when faculty engage in hateful acts on campus, however, there is a notable difference in how universities respond depending on the viewpoint. None of these academics calling for Shapiro’s termination called for termination of those professors. Nor should they. This is all about free speech.
Conservative sites like National Review have detailed what occurred at Hastings where Shapiro was going to debate another professor on the selection. Students came for the debate titled “The Battle Over Justice Breyer’s Seat,” but other students insisted that they should not be able to hear Shapiro’s views. The 45-minute video shows activists affiliated with the school’s Black Law Students Association (BLSA) pounding the tables and shouting to prevent Shapiro from speaking.
As Shapiro tries to speak, the students yell insults like “When did you start balding? Are you sad that you’re balding? I would be.” Another yelled “You’re a f***ing coward!” as others blocked his view from the lectern or clapped in his face. The charge of cowardice is particularly odd given Shapiro’s willingness to face such critics. It is the mob that did not want to allow his views to be heard in a free and fair debate.
Academic Dean Morris Ratner tried to remind the students that they are not allowed to block or interrupt events under the student code. Ratner explained “There’s a way to do that that’s consistent with our institutional codes and norms.”
The response was laughter with one student stating the common mantra used today to excuse anti-free speech campaigns: “It’s not a legitimate point of view!” Another yelled “Remove him off the f***ing campus, because that’s what we want.”
The students are voicing anti-free speech sentiments legitimated by professors and administrators. 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).
Some faculty take more direct action. At the 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. We also 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.
Hastings Law Professor Veena Dubal supported the BLSA campaign and objected that the law school would allow such views to be heard on campus: “Why is the voice of someone who has made overtly racist & misogynist statements being elevated? . . . I found [Georgetown Law Professor Paul Butler’s] OpEd in the Washington Post useful in drawing a sharp line between speech protected by the ideal of ‘academic freedom’ & speech that is racist & sexist.”
Such views are being readily embraced to treat free speech as inherently harmful. Polls show growing support for preventing dissenting views from being heard on our campuses. We have previously discussed the worrisome signs of a rising generation of censors in the country as leaders and writers embrace censorship and blacklisting.
The danger is not just that protesters can stop others from speaking but that school authorities can use that speech as a pretext for barring or shutting down events. The issue is not engaging in protest against such speakers, but to enter events for the purpose of preventing others from hearing such speakers. Universities create forums for the discussion of a diversity of opinions. Entering a classroom or event to prevent others from speaking is barring free speech. I would feel the same way about preventing such people from protests outside such events. However, the concern is not with outdoor events where all groups can be as loud and cantankerous as their voices will bear. Both sides have free speech rights to express. The issue on campus is the entrance into halls, or classrooms to prevent others from hearing speakers or opposing viewpoints by disrupting events.
This has been an issue of contention with some academics who believe that free speech includes the right to silence others. Berkeley and other schools have 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.
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. In most schools, people are not allowed to disrupt events. They are escorted out of such events and told that they can protest outside of the events since others have a right to listen to opposing views. These disruptions however are often planned to continually interrupt speakers until the school authorities step in to cancel the event.
Absent enforcement of school rules on such disruptions, there is little hope for the open exchange of ideas and a diversity of opinions on campus. The rules of most schools properly draw the line between protests and disruptions. Everyone is allowed to be heard. However, if you enter to disrupt it, you are disrupting free speech.
The question is whether Hastings will now sanction these students. The law school issued an important and commendable email stating that “disrupting an event to prevent a speaker from being heard is a violation of our policies and norms, including the Code of Student Conduct and Discipline, Section 107 (“Harmful Acts and Disturbances”), which the College will—indeed, must—enforce.” However, it does not state that these rules will be enforced in disciplinary actions taken against these students.
We have previously seen universities decline to do so, even when protesters disrupt actual classes at schools like Northwestern. These students were told that disruption of the events violated the student code and they continued to disrupt the event.
The only way to protect free speech is to enforce these rules against those who would block opposing views from being heard on our campuses.