For Free Speech, Today’s College Students Are Tomorrow’s Law Students, Lawyers, Politicians, and Judges

October 13th, 2015

I pay very close attention to what today’s college students think and do, because today’s college students will becomes tomorrow’s law students, the next decade’s lawyers, and the next generation’s politicians and judges. With respect to the First Amendment, I don’t pretend for a moment that today’s prevailing views of free speech and free exercise will remain constant. (See my article Collective Liberty for a discussion of how these trends will continue). Recent events at UCLA provide a microcosm of how the next generation is being inculcated with a very bizarre and dangerous conception of free speech.

Eugene Volokh reports that UCLA has suspended a fraternity and sorority that hosted a “Kanye Western”-themed party where some students worse blackface. Under controlling precedent, including Rosenberger v. Rector of UVA and CLS v. Martinez, this discipline would constitute unconstitutional viewpoint discrimination. This isn’t even a close case. Eugene writes that this is “punishment purely based on the allegedly racially offensive content of the fraternity and sorority’s expression — and the message sent to other organizations is that, if you express views (jocularly or seriously) that are seen as racially offensive, you too may be suspended.”

Was there any blowback from the students? One would hope that–of all people on campus–the members of the student newspaper would stand up as champions for the First Amendment. Not even close.

The UCLA Daily Bruin editorial board calls for “policing” of greek life.

The office of UCLA Fraternity and Sorority Relations must take action to ensure such an event doesn’t occur again on our campus, and the university must recognize the need to prevent racist incidents that don’t necessarily target, but nonetheless demeans UCLA’s black community.

Indeed, these college students are not only calling for pre-approval of party topics, but demand “raids” of the fraternities to confirm the groups are in fact throwing the parties they advertised.

While bus checks are required by the Greeks Advocating the Mature Management of Alcohol division of FSR before houses leave campus for raids, this process is informal and insufficient. GAMMA officers should patrol pre-parties such as the one that took place at Sigma Phi Epsilon Tuesday and confirm that the theme parties being registered are the ones being thrown.

Do these students have no conception of how important free speech is? Do we really want the militarization of campus police to “raid” fraternities? Do these students not remember “Don’t Taze Me Bro” and the UC Davis protestors Being pepper sprayed? Or do they only oppose the police state on campus when it further progressive policies? How ignorant can these students be? What do you think happens if students refuse to admit the campus police during a raid, or won’t let the police search their persons and effects? Out comes the pepper spray and tazers! What bizarro world do we live in that college students are calling for the police to raid fraternities to make sure they are not engaging in offensive speeches? Eugene laments, “things aren’t looking good for the First Amendment here.”

This isn’t limited to UCLA. Recently the Brown Daily Herald scrubbed two articles about “white privilege” and Columbus Day because they were not “only controversial but also deeply hurtful.” A former staff writer of the paper offered this irresponsible ignorance of the Constitution. Take a moment to read, and embrace what is now viewed as orthodoxy on college campuses.

Heft-Luthy, who served as a staff writer on The Herald his first year of college, said “I think the feelings among the people I’m associated with is a frustration with the failure to realize the harmful nature of the columns.”

However, he went out of his way to stress that he was “probably not the person to talk to about emotional investment” and that he “would feel more comfortable having a person of color talk about their reactions.”

When Heft-Luthy, who currently works on the Brown satirical publication,The Brown Noser, was asked about whether restricting columns of “harmful nature” creates freedom of speech concerns, he responded “I don’t know.”

“The idea of a publication being invested in free speech is talked about as a black-and-white issue. For me, the idea of free speech is not a helpful mode for thinking about platforms of publishing,” Heft-Luthy said.

Edd [sophomore at Brown] concurred that freedom of speech was not a sufficient reason for printing Maier’s controversial columns.

“I think freedom of speech in general has a lot of problems because of power dynamics, just racially and otherwise, so you have to be cautious,” she said.

“I think freedom of speech in general is rhetoric that supports the erasure of minority students. Voices of minorities and people of color have been silenced for so long that once there is a voice for us, there’s more backlash. If a person of privilege or higher status did the same thing [and spoke out], it would just be considered freedom of speech.”

The students didn’t make this sort of language up. They learned it one of the most elite universities of this country. It is very, very scary that the delicates snowflakes of today will become the policymakers of tomorrow.

But there is still hope. This morning I volunteered to give a lecture on the First Amendment to a group of High School Seniors, as part of South Texas College of Law’s Marshall-Brennan program. (A very worthwhile project, which I encourage other schools to adopt!). In our discussion of Brown v. EMA, a student asked me whether the government could prohibit offensive team names, like the Washington Redskins. I didn’t’ go into the trademark issues, but focused on whether the state could force a school to change their name from the Redskins, as California just did. I explained to the students, in no uncertain terms, that offensive speech is protected by the First Amendment. I told them about the Kayne-Western themed party at UCLA, and noted that the students at UCLA were calling for the university to police parties.

To my surprise, and absolute joy, the students were appalled by the call for censorship. One student told me that we need to protect offensive speech–even something patently idiotic like black face–because all viewpoints warrant protection. Another student expressed a concern that if we ban certain viewpoints, then others will soon be banned–the slippery slope argument. I couldn’t be more proud of these kids. I explained to them that next year, they will be in college, and they would serve as the last line of defense on college campuses. I meant that sincerely. I hope they can school the students from UCLA and Brown about the Constitution.

After my lecture, one student asked me why I volunteered to help at his school. I replied, for the same reason that I teach law students. Lawyers, and law professors in particular, have a very important job to ensure that we have constitutional literacy, and people understand the structures that protect our rights. This is what motivates me to do what I do. Long before anyone paid me to teach about constitutional law, I started the Harlan Institute, aimed directly at High School students. That I get paid to do what I would do for free is a blessing. Sure, I don’t expect everyone to agree on all constitutional issues, but on certain basics, even law professors on different sides of the fence must come together to defend certain values–most importantly free speech. I hope the students in the classroom today grow up to be tomorrow’s judges–and not the dolts at UCLA–and ensure that long after I’m gone, the freedom of speech is not sacrificed to social justice.

Update: This Atlantic piece by Connor Friedersdorf is a must-read.

Update: Another sharp insight from Raymond Nhan at Pacific Legal Foundation:

Before another generation of students lose the ability to speak freely on college campuses, middle and high schools must begin to protect their students’ First Amendment rights. When a student is suspended from school for wearing a T-shirt supporting our armed forces, what may students actively advocate for? There certainly may be some teachers or students who disagree with Alan’s message, but our educational system should prepare the youth to understand multiple perspectives and to critically challenge their own. When students are shielded from every uncomfortable idea, or are punished for presenting a potentially distressing statement, it is not surprising that college students expect to be protected from any mention of controversial or potentially unpleasant subject.

Update: Katie Byron, a recent graduate of Brown University, aptly explains the high stakes:

Those who want to frame this issue as an attack on free speech on college campuses are ignoring the reality of campus sexual violence. Requests for safe spaces or trigger warnings are not about hiding from ideas but about finding ways to engage without disturbing the people most directly affected. Students are not avoiding or silencing difficult conversations, they’re learning to face them in ways that are both academically rigorous as well as sensitive to the needs of everyone in the room. Through these discussions, they are becoming a generation of leaders ready to create more inclusive and just world.