December 7, 2022

Law

Hastings College of Law Bars the “Heckler’s Veto” in Defense of Free Speech

Hastings College of Law Bars the “Heckler”s Veto” in Defense of Free Speech

For years, some of us have called upon schools to impose stricter rules against students or faculty disrupting classes or events by shouting down speakers or preventing them from being heard. While some law professors and legal sites have supported such cancel tactics, the University of California Hastings College of the Law has joined those…

For years, some of us have called upon schools to impose stricter rules against students or faculty disrupting classes or events by shouting down speakers or preventing them from being heard. While some law professors and legal sites have supported such cancel tactics, the University of California Hastings College of the Law has joined those schools in barring the use of what is loosely called the “heckler’s veto.” It is now routine for protesters to prevent others from hearing opposing views and there are often allegations that some schools quietly allow the use of the heckler’s veto. The new Event Policy prohibits

“forms of protest that substantially disrupt an in-person or virtual event in a way that has the effect of silencing a speaker,” but still recognizes and protects peaceful protest such as banner holding, counter events, and engaging in question and answer periods as part of the “essential right to protest.”

Under this rule, Administrators may now hold violators “accountable for violating the UC Hastings Code of Student Conduct and Discipline.” We have seen convocations and other important events disrupted by such protesters. We recently discussed how Cornell is pledging to punish students who prevented conservative writer Ann Coulter from speaking.

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 latest chilling poll was released by 2021 College Free Speech Rankings after questioning a huge body of 37,000 students at 159 top-ranked U.S. colleges and universities. It found that sixty-six percent of college students think shouting down a speaker to stop them from speaking is a legitimate form of free speech.  Another 23 percent believe violence can be used to cancel a speech. That is roughly one out of four supporting violence.

We discussed this issue with regard to a lawsuit against SUNY. It is also discussed in my recent law review article, Jonathan Turley, Harm and Hegemony: The Decline of Free Speech in the United States, Harvard Journal of Law and Public Policy. We have seen how in universities (including state schools) this can turn into a type of “heckler’s veto” where speeches are cancelled in advance or terminated suddenly due to the disruption of protesters.

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, including a speaker from the ACLU discussing free speech.  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).

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.

Hastings has taken an important stand against these disruptive cancel campaigns. It must now carry out its pledge to protect free speech by holding students accountable when they seek to prevent others from speaking or being heard on campus. Of course, you must also invite speakers who offer alternative or dissenting views, which has become increasingly rare at law school.

More at: Jonathanturley.org


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