I was invited to speak at the City University of New York School of Law about the importance of free speech on campus. Alas, I was not able to give that lecture as I had planned. For the first eight minutes of the hour-long lecture, a dozen students surrounded me — standing inches away — and shouted at me every time I opened my mouth. They charged that I was a white supremacist and a fascist. They even shamed an African-American student who came to hear me speak: “Why aren’t you with us?” The obstruction only ended after I began to engage the protesters. When I explained that — contrary to their slanders — I support the DREAM Act, one law student could only respond by screaming “F--k the Law!” With nothing of substance to say — one student actually mumbled, “I don’t want to hear this” — the protestors exited the room.
This event was at once a microcosm for the state of campus affairs. Students are enraged at federal and states laws that they view as unjust and discriminatory. When a right-of-center speaker arrives at their campus, they feel betrayed that the University failed to protect them from ideas they deem harmful. In response, they try to deny the visitor a platform, and shut down the lecture. Despite blatant misconduct, administration officials impose no disciplinary actions. Perhaps most tragically, the students who preach the loudest against intolerance are themselves the most closed-minded.
My visit to CUNY was no different. Several minutes into the protest, the Dean of Students warned the demonstrators that they “may not keep anyone from speaking,” and that she would come back if they continued interrupting me. But she did not come back, despite persistent heckling. And, to my knowledge, the school didn’t actually consider disciplining any of the students. Mary Lu Bilek, the Dean of the Law School, defended her students. Because of the interruption’s short duration, she insisted that “limited protest was a reasonable exercise of protected free speech.”
There was nothing “reasonable” about their heckling. As a practical matter, because of the delayed start, I did not have enough time to deliver the lecture I had planned to give. There simply would not have been enough time. As a matter of course, the invited speaker, and not the demonstrators, determines the schedule. But more pressingly, I don’t think I would have been able to deliver my prepared remarks if I wanted to. Despite my apparent composure, I was quite shocked by the demonstration, which was my first ever. Invited speakers have the right to speak freely without having hecklers stand (quite literally) over their shoulders, shouting them down.
I fear that other speakers, who would be more susceptible to the demonstrators’ tactics, may have abandoned the event altogether — that, I’m sure, was the protesters’ hope. It is no surprise, then, that University policy prohibits such conduct: students “shall not intentionally obstruct and/or forcibly prevent others from the exercise of their rights.” The students did exactly that — through their heckling, they sought to prevent me from exercising my constitutional right of free speech. That the disruption did not last for the entire hour is of no moment. Is the school really adopting a rule that protesters are allowed to disrupt 10% of an event without repercussions. I suspect that if the same group of students interrupted the first ten minutes of a first-year contracts class, or a lecture by Justice Ruth Bader Ginsburg, the punishment would have been swift.
In lieu of my prepared remarks, I chose to take questions from the students who remained for over an hour. It was an enriching discourse, to be sure, but I did not cover any of the points I had been invited to discuss. Indeed, I worried that at any moment, the protesters would return, once again disrupting my talk. Dean Bilek’s breezy dismissal that “the event preceded to its conclusion without incident” blinks reality.
The CUNY protest was particularly disquieting because it was organized not merely by undergraduates, but by law students. These individuals will soon become members of the bar, and be charged with securing our most basic rights of free expression. Today, courts are generally protective of free speech. Yet, these precedents were developed by judges who came of age a generation ago, when it was widely agreed that the remedy for bad speech is more speech. However, in the era of Charlottesville and #AltRight, students are trending in the opposite direction: now the preferred remedy for bad speech is no speech. Over the last two years, a greater percentage of students believe that college campuses should restrict “language that is intentionally offensive to certain groups” (73% versus 69%) and “political viewpoints that are upsetting or offensive to certain groups” (30% versus 27%). As baby boomer judges are replaced by millennial jurists, I worry that hard-fought First Amendment victories will be eroded in the pursuit of social justice.
This trend can only be reversed if colleges reassert the primacy of free expression on campus. Public universities are funded by taxpayers and are bound by the Constitution. They have a special obligation to ensure that all viewpoints are welcome, and can be heard on campus. I am relieved by the handful of students who wanted to hear me speak — even if they disagreed with me. Yet, if the CUNY protest is the canary in the coal mine, the future of free expression in America looks bleak.
Josh Blackman is an Associate Professor of Law at the South Texas College of Law in Houston, Texas.