Does Your Campus Free Speech End at My Mob’s Power to Shout You Down?

LANSING – With a growing number of colleges refusing to sanction organized efforts to silence invited speakers and imposing restrictions on the ability of students to exercise their First Amendment right to free speech, institutions of higher education face a critical question. How should discourse at state universities be regulated, if at all?

It’s an issue being discussed and debated across the nation, and it was the focus of a panel convened by the Mackinac Center for Public Policy at recent event near the state Capitol. The expert panel included a scholar, an attorney, a former University of Michigan student and a state senator who has introduced bills designed to contain the problem.

Jim Manley, a senior attorney at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation, opened the discussion by presenting a broad history of free speech restrictions in this country. Among other things, he described how shouting “Trump” on a college campus is now regarded by activists and some administrators as akin to shouting “fire” in a crowded theatre. Manley condemned this approach as putting a damper on the college experience.

“The soul of the American university is the free exchange of ideas,” Manley said. “Colleges need to be places where you can think the unthinkable.”

Stanley Kurtz, a senior fellow at the Ethics and Public Policy Center who has also done work for the Hudson Institute, then described one of the leading methods now being used to chill campus speech, the “shout-down.”

A shout-down is when a group of individuals prohibit a speaker from being heard at an event or meeting by all shouting together in a manner intended to drown out the speaker’s words. Kurtz says the number of such incidents reported across the country has been growing.

He described a number of examples and explained that if free speech is to be protected on campus and civil society preserved, colleges must discipline students who participate in shout-downs.

“The real point of speaker shout-downs is to police the acceptable boundaries of speech,” Kurtz said. “Even a few shout-downs of speakers who challenge the reigning orthodoxies on campus suffice to send a message to the entire campus, to the entire state, and often nowadays, to the entire nation.”

Kurtz illustrated the confusion surrounding this issue by citing a recent editorial published in the University of Michigan’s main student newspaper, The Michigan Daily. The student paper criticized shout-down sanctions in recent legislation introduced by Sen. Patrick Colbeck, R-Canton.

The bill would require universities to authorize sanctions, including suspensions and expulsion, for individuals who participate in “protests and demonstrations that infringe upon the rights of others to engage in or listen to expressive activity.” Alleged violators would enjoy extensive due-process protections before any sanctions could be imposed, however.

Kurtz disagreed with the Michigan Daily’s pro-shout down views, saying there is no way that shouting down a speaker can occur without infringing the rights of both the speaker and those who want to hear. He characterized the public policy choice in these terms:

“Either the legislation passes and students begin to understand, from freshman orientation on, that shout-downs like this are not permissible, or the legislation fails and Michigan students continue to believe that they are allowed to go along with these shout-downs, and these students believe these shout-downs are not inconsistent with freedom of speech.”

In the question-and-answer segment, Kurtz was asked if disciplining shout-downs posed a threat to the freedom of speech of those who opposed campus speakers. He responded that individuals’ right to free speech ends when they “substantially and consistently make it impossible for others to speak or for others to hear who is speaking.”

Panel member Deion Kathawa is a graduate of the University of Michigan, currently on a fellowship at The Detroit News. Kathawa said he doesn’t think that students understand free speech as articulated in the U.S. Bill of Rights.

“[Students] just don’t understand what the First Amendment entails. They think that hate speech is a legal category,” he said. Kathawa also described how the concept of “hate speech” has no legal basis in America and is really a European or Canadian construct.

According to Kathawa, students who participate in shout-downs may do so because they have never been challenged by having to listen to an opposing viewpoint.

“A lot of times I’ll have conversations with peers and they’ve just never heard someone who’s 22 espousing whatever view it is that I’m espousing. It’s like I’m a unicorn; they’ve just never heard someone my age talking the way I talk.”

The final panelist was Patrick Colbeck, who is serving his second term in the Michigan Senate. Colbeck is a U-M graduate and an engineer with more than 20 years in the field, including work on the International Space Station. He characterized his “Michigan Campus Free Speech Act” proposal as “belt-and-suspenders legislation.”

“We have a First Amendment that says you have the right to free speech. So why do we have laws that say we need to have the right to free speech? We’ve already got the belt, why do we need the suspenders?”

Colbeck said he believes that this type of law, however redundant it may appear, is necessary.

The entire discussion can be found here.