Back in January, Erwin Chemerinsky, a well known legal scholar and at the time the UC-Irvine law school dean, published this opinion piece castigating UO President Mike Schill’s response to the Halloween blackface incident:
Worries about offensiveness threaten free speech on campuses
All too often campuses are forgetting one of the most basic principle of the First Amendment: Speech cannot be punished simply because it is offensive, even deeply offensive.
The most recent example of this occurred when an investigative report for the University of Oregon concluded that a professor had created a “discriminatory learning environment” by wearing blackface at a Halloween party in her own home. Earlier the professor had been suspended for doing this. No doubt many were offended by her actions, but unquestionably she was engaged in speech protected by the First Amendment and any discipline is unconstitutional.
In October 2016, University of Oregon law professor Nancy Shurtz hosted a Halloween party for about 25 students, faculty members, alumni and family members. Her costume was wearing black makeup on her face and hands, an Afro wig, and a white doctor’s lab coat. She told her guests that she was inspired by the anti-racist message of Damon Tweedy’s memoir about a black man starting his medical career, “Black Man in a White Coat.” She also had recently attended her daughter’s white coat ceremony — a tradition that begins a medical student’s first year — and she noticed an almost complete absence of black men. She said that she meant to draw attention to the lack of diversity in higher education.
Word quickly spread of Professor Shurtz’s costume and by the next day, she was condemned by students, faculty and University of Oregon President Michael Schill in a message expressing outrage to the entire university community. Shurtz was suspended from teaching pending review. Within a few days of the party, 23 law school faculty members wrote a letter urging Professor Shurtz to resign. It concluded: “If you care about our students, you will resign. If you care about our ability to educate future lawyers, you will resign. If you care about our alumni, you will resign.”
University of Oregon commissioned an investigation which concluded: “We find that Nancy Shurtz’s costume, including what constitutes ‘blackface’ through use of black makeup, constitutes a violation of the University’s policies against discrimination. We further find that the actions constitute Discriminatory Harassment.”
The report found that her costume exacerbated racial tensions on campus in a way that had a disproportionate impact on students of color, because “minority students [felt] they have become burdened with educating other students about racial issues and racial sensitivity,” and because some students used “other offensive racially based terminology during class times in the context of discussing this event and broader racial issues.”
Professor Shurtz exercised poor judgment in choosing her costume and not realizing that some would be very offended by it. But poor judgment and offending people cannot be a basis for a university punishing speech. In countless cases, the courts have been adamant that speech cannot be punished because it is offensive. The Nazi party had the right to march in Skokie, Ill., despite the offense to its largely Jewish population and the many Holocaust survivors who lived there. Members of the Westboro Baptist Church have the right to go funerals of those who died in military service and express a vile, anti-gay and anti-lesbian message. The government would have almost limitless power to censor speech if offensiveness is a sufficient ground for punishing expression.
Likewise, it cannot be that a university can punish a professor’s expression on the grounds that it offends students and thereby will make their learning more difficult. That is the primary justification for punishing Professor Shurtz.
If that is enough to justify suspending or removing a professor, it would provide a basis for doing so any time a faculty member participates in activities that make a significant number of students uncomfortable.
Under this rationale, campuses in the 1950s would have been justified in firing professors who were perceived as having communist leanings or in the 1960s could have removed professors who participated in the civil rights movement on the ground that such speech made students uncomfortable and interfered with their learning.
I, of course, am not arguing that free speech on campus is absolute. Campuses can punish speech that is incitement to illegal activity or that threatens or directly harasses others. Campuses also can engage in more speech, which long has been recognized as the best response to the speech we don’t like. There can be efforts to educate the community about the history of blackface. There should be debates about whether it is ever appropriate to use blackface even when advocating against racism in higher education.
I would have hoped a law school faculty and a university president who is a lawyer and law professor would have recognized this. Unfortunately, what happened at the University of Oregon is all too typical of what is happening on campuses across the country where the desire to create inclusive learning environments for all students has led to punishing speech protected by the First Amendment.
Chemerinsky is now dean of Berkeley’s law school, and today he and Howard Gillman of UC-Irvine have an op-ed in the Chronicle (gated if off campus), about speech that disrupts the speech of others. It uses the student protest of President Schill’s State of the University speech as an example of the sort of disruption that need not be tolerated, but perhaps should be:
Does Disruption Violate Free Speech?
When student protesters prevented President Michael H. Schill of the University of Oregon from delivering his State of the University speech this month, the group explained, “Free speech is the right of individuals and communities to express themselves without repression from the state. The students are not the state nor the repressors. Taking to the stage and using this platform was an act of free speech — not a violation of it.”
… Contrary to the view of these protesters, individuals do not have a right to prevent others from speaking. It has long been recognized in constitutional law that the “heckler’s veto” — defined as the suppression of speech in order to appease disruptive, hostile, or threatening members of the audience — can be as much a threat to rights of free expression as government censorship.
If audience members had a general right to engage in disruptive or threatening behavior by using loud, boisterous, or inciting speech, it would give any determined individual or group veto power over the expression of any idea they opposed. Only the most benign or inoffensive ideas would be expressible. It would empower people to believe, “If we can’t get the government to censor the speech, then we’ll do it ourselves.”
The only protections against the heckler’s veto are to require officials to make every effort to control the disrupters or to deter their efforts by treating the disruption as a punishable breach of the peace. Of course, it is possible that, despite best efforts, safety or public order cannot be maintained without calling an end to a controversial event. But this should be a last resort, only after exhausting all efforts to control those who are creating the threats against the lawful expression of speech.
… Importantly, however, prohibitions against disruptions also have their limits.
For example, protecting a controversial speaker assumes that the speaker has a preferred right to speak in a particular location at a particular time. When that is not the case — for example, in a true, open public forum on campus grounds, where anyone is allowed to be and to talk — no one speaker has any more rights to express a point of view than any other. If a Christian fundamentalist preacher were to use an open public space on a campus to preach against nonheterosexual activity, there is no reason why members of the campus community could not surround the preacher and enter into a boisterous back-and-forth.
… The reason recent campus controversies are different is that, in those cases, the campus has created a process whereby particular people (for example, student sponsors and their invited guests) are given a preferred right to have access to specific campus venues through a reservation process. Once the campus has followed its policies and assigned rooms for particular activities, then those who have secured the reservations have recognized claims to that space at those times.
In such a limited public forum, and in other places on campus where certain activities are assigned and recognized, those who have been given access to the space for certain purposes have the right not to be disrupted in that activity.
… Also, while opponents cannot disrupt a talk by an authorized controversial speaker, it is true that the speaker has no right to a cooperative or supportive audience.
Those who disagree are allowed to express their disagreement in ways that nevertheless allow the speakers to have their say. In the easiest case this includes the right to hold counterprotests or competing events, or distribute critical leaflets to audience members. But it also includes expressing disapproval as a member of the audience, as long as that disapproval does not undermine the rights of the speakers and their sponsors.
There are always judgment calls in cases of disruptive protests. We favor a more accommodating approach when protesters focus on administrators, for practical reasons rather than because of the First Amendment. Campus leaders have many avenues to express their views, and so an occasional tactical decision to shrug off the disruption is understandable.
But accommodation is much less appropriate when some members of the campus are attempting to prevent others from exercising their rights. In such cases, heckler’s veto principles argue in favor of strong campus rebuffs of the claims of the disrupters. Otherwise, vulnerable or controversial opinions will never be expressible on a campus. And that would represent an abandonment of foundational principles of modern American higher education.
Simply put, the right to speak does not include a right to use speech to keep others from speaking.