>> SUSAN POSER: Good afternoon.
And welcome to the campus conversation, our
fourth of this academic year, and our second
of the semester.
I think it's our first of the semester.
The goal of the campus conversation series
is to have faculty, students, and staff engage
with each other about some of the big issues
of our time going on now and affecting all
of us.
As a community dedicated to social justice
and diversity, we come together to try to
understand current events and to talk about
the issues.
Over the past three years, we've looked at
issues such as immigration, civil rights,
national and local elections, the hashtag
MeToo movement, our general education program,
and mental health among others.
And we have two more programs yet this semester,
the last of which will be a discussion of
Mayor Lightfoot's first year in office.
The next one we are still debating whether
to go ahead with climate change or change
it to something about all the stuff going
on in DC.
So we may do impeachment, we may do prosecutions,
all kinds of things.
So stay tuned for that.
Today the topic is free speech on campus,
and we are honored to have with us Erwin Chemerinsky,
the dean of the law school at the University
of California Berkeley.
And I will introduce Dean Chemerinsky in just
a moment.
Dean Chemerinsky will speak for about 30 minutes,
after which our own panel of faculty will
engage with him on the topic of free speech.
I'll remind you that this is being streamed
and it will also appear on my website after
a couple of days.
Our faculty panel consists of Dr. Zizi Papacharissi
who is the department head and professor of
communications in LAS and professor of political
science.
Dr. Jane Rhodes, department head and professor
of African‑American studies in LAS, Steve
Schwinn, who is a professor of law at the
UIC John Marshall Law School, and Benjamin
Superfine, professor and chair of the department
of educational policy studies in the challenge
of education here at UIC.
And they will come up following Dr. ‑‑ Dean
Chemerinsky's talk.
So we will follow then the panel discussion
with a Q and A session with the audience.
Paper has been provided on your chairs with
a little pencil and so as you think of questions,
write them down and Kelcie will come around
and collect them during the panel discussion,
and we will adjourn at 2 p.m.
So it's now my pleasure to introduce Erwin
Chemerinsky and this is very, very abbreviated
as you will see when he comes up here, you
can imagine the long resume he has
Erwin Chemerinsky became the 13th dean of
Berkeley law on July 1, 2017.
Prior to assuming that position, he was a
founding dean of the University of California
Irvine school of law and before that he had
distinguished professorships at Duke University
and the University of Southern California
law school.
Dean Chemerinsky is the author of 11 books.
That's probably already wrong at this point,
including leading case books and treatises
about constitutional law, criminal procedure
and federal jurisdiction.
As well as books for popular audiences including
his recent book entitled free speech on campus,
which he wrote with Howard Gilman.
He's the author of more than 200 law review
articles.
He writes a regular column for the Sacramento
bee, monthly columns for the ABA journal and
daily journal and frequent op eds in newspapers
across the country including one in the New
York Times yesterday although it was not about
free speech, it was about baseball.
He frequently argues appellate cases including
in the United States Supreme Court where last
fall he was one of the lead attorneys defending
the DACA program before the court.
In 2016 Dean Chemerinsky was named a fellow
of the American academy of arts and sciences.
In 2017, I think not for the first time, the
national jurist magazine named him the most
influential person in legal education in the
United States.
It's been my pleasure to know Erwin Chemerinsky
over the years in the legal education circles
and it's my great pride that he is now my
dean of my alma mater law school.
So please join me in welcoming Erwin Chemerinsky.
(Applause.)
>> ERWIN CHEMERINSKY: Thank you so much for
the very kind introduction.
It's truly an honor and great pleasure to
be here.
What Susan didn't mention is I grew up in
Chicago and I have to admit that today reminds
me why I live in California.
(Laughter.)
For most of us, our image of free speech on
campus might involve the free speech movement
of Berkeley in the mid 1960 that involved
students on campus demonstrating to try to
claim a right to speak about issues that were
unrelated to university administration.
However, now things are quite different when
we talk about free speech on campus.
Frequently today it's about outsiders wanting
to use the campus as a platform for expressing
their ideas.
There was an incident at Berkeley a few years
ago when Milo Yiannopoulos came to speak,
and the group Antifa demonstrated and gave
violence in a way to prevent him from being
able to talk.
We had an incident on the Berkeley campus
in November, a few months ago, it was Ann
Coulter wanting to use the campus to express
her views and outside groups wanted to agitate
to try to prevent that.
Also student attitudes have changed.
My guess is if somebody had taken a poll of
the students at Berkeley in the mid 1960s,
there would have been overwhelming support
for the free speech movement.
But now there's a much greater diversity of
views among students when it comes to free
speech.
There was a study from the Pew research institute
that found that 43 percent of the undergraduates
surveyed believed that campuses should prevent
offensive and hateful speaker being able to
appear on campus.
I've certainly seen that on my own campus.
In 2017, a campus group that calls themselves
the patriots invited Milo Yiannopoulos, Ben
Shapiro, Ann Coulter and Charles Murray to
all be there in one week.
The chancellor convened a faculty panel to
discuss the issue that we're focusing on today,
free speech on campus.
It was in a large auditorium.
Every seat was taken, every floor space was
occupied.
The first faculty member to talk was my colleague,
John Powell, and he said that the he believed
that the largest problem in our society is
white supremacy and that the chancellor should
simply exclude any hateful speaker.
There was resounding applause from the audience.
After the panelists, the faculty members spoke,
the students were able to speak and ask questions,
and one student stood up and very eloquently
said that she feels threatened when there
are hateful speakers on campus, like Milo
Yiannopoulos and Ann Coulter and she wants
the chancellor to stand up on behalf of the
students.
She says she wants the chancellor to exclude
such speakers no matter what the courts or
the First Amendment said, and then again there
was resounding applause from the audience.
I was one of the faculty members on the panel,
and I then spoke and said, ‘let's be clear
about this.
If the chancellor would exclude any of these
speakers, she would get sued, and she would
lose.’
When auburn university tried to exclude the
white supremacist Richard Spencer he and his
supporters sued and won.
At the very least the campus would have to
pay the attorney's fees for the excluded speakers
but because the law is so clear here, the
chancellor might even be liable for money
damages.
The excluded speakers would make themselves
out to be martyrs and victims.
They would get to speak anyway, so nothing
would be achieved.
No one applauded when I said that.
(Laughter.)
And so it's this context that today we can
talk about free speech on campus.
Let's try to think what I might be most useful
in doing in setting up the panel discussion
and I thought what I would do is try to summarize
my understanding of the law in four points.
First, all ideas and views can be expressed
on a college campus, period.
The very core of the First Amendment is that
the government never can prohibit or punish
speech based on the idea or the viewpoint
of the message.
Now obviously we're speaking of public college
universities, like UIC or University of California
Berkeley.
The First Amendment applies only to government
institutions.
If we're talking about private institutions,
it's a much more complicated story, but it's
not a story then about the First Amendment.
I can certainly point to many Supreme Court
cases that stand for this proposition that
all ideas and views can be expressed, no matter
how offensive.
The Supreme Court case earlier this decade,
earlier last decade, a case called Snyder
versus Phelps, and you might not be familiar
with it by name, but the facts probably are
ones you've heard of.
It involves a small church out of Topeka,
Kansas, the Westboro Baptist church.
Its members make it a practice of going to
funerals of those who died in military service
and using it as the occasion for expressing
a very vile, anti‑gay, anti‑lesbian message.
The members of the Westboro Baptist church
traveled to Maryland to the funeral of Matthew
Snyder, who was a marine who died in military
service in Iraq.
Before the funeral they asked the police where
they could lawfully stand, and the officers
pointed to an area about a thousand feet away
from the funeral home.
Before the ceremony they chanted and sang.
During the ceremony, they were silent, but
they held signs.
That night, Matthew's father Albert Snyder
was watching the news and he was able to read
the signs.
He was deeply offended.
He sued the members of the Westboro Baptist
church for invasion of privacy, and for the
intentional infliction of emotional distress.
A jury in federal court awarded him $10 million
in damages.
But the United States Supreme Court eight
to one ruled in favor of the members of the
Westboro Baptist church and against Albert
Snyder.
Chief Justice Roberts wrote the opinion for
the court.
He made clear that above all, the First Amendment
protects the right to express ideas and views,
even very offensive, even very hateful ideas
and views.
And this is true for campuses of public universities
as much as anywhere else in the country.
But this leads a me to my second point and
that’s free speech is not absolute.
You've all heard the famous words of the late
justice Oliver Wendell Holmes that there's
no right to shout fire in a crowded theater.
At least since the early 1940s the Supreme
Court has said that there are categories of
speech that are unprotected by the First Amendment.
In these instances the government could punish
prohibited speech.
There are a few of these categories that are
relevant to our discussion today of free speech
on campus.
One is incitement of illegal activity is speech
that's not protected by the First Amendment.
The Supreme Court has said this for a century
now.
But it's important in talking about these
concepts to separate the legal test that's
used in the First Amendment from the colloquial
use of the word.
The court has adopted a legal test with regard
to incitement that makes it very difficult
to be able to prove that the speech is unprotected
by the First Amendment.
In a case called Brandenburg versus Ohio in
1969, the Supreme Court said in order to be
incitement, there has to be a substantial
likelihood of imminent illegal activity, and
the speech has to cause illegal imminent activity.
To make this more concrete rather than abstract
I want to compare a couple of examples.
Imagine that there's an angry group on campus,
and the speaker talks about and exhorts them
to commit acts of vandalism, arson, lighting
a building on fire.
Could that speaker be punished for incitement?
I think so, but that's a hypothetical.
On the other hand imagine a situation where
Milo Yiannopoulos comes to campus and there's
a strong reaction against him.
Can Yiannopoulos be punished for incitement?
Not in those facts because it was the reaction
of the audience against him, not him encouraging
them to go out and commit acts of violence.
And under the First Amendment, the reaction
of an audience doesn't justify suppressing
the speaker.
A second category of unprotected speech that's
relevant to our discussion is called true
threats, a phrase that comes from the United
States Supreme Court.
The case that originated this was United States
versus Watts a half century ago.
It involves a federal law that's still on
the books that makes it a crime to threaten
the President of the United States.
The Supreme Court said if it's a true threat,
then it's speech that can be punished.
On the other hand, if it's mere hyperbole,
it's protected by the First Amendment.
The Supreme Court in other cases said the
true threats are unprotected by the First
Amendment.
But the court has never given us a clear definition
of what's a true threat.
In fact there's a split among the federal
Court of Appeals about how to define it.
My view is there's no First Amendment right
to cause a person to reasonably fear for his
or her physical safety.
If the speech is directed at somebody and
causes that person to fear for his safety,
it's not safeguarded by the First Amendment.
Again I'll contrast a couple of examples.
Imagine a student is walking across campus,
and an angry group surrounds that student,
and yells at the student in a way that he
or she feels about to be beaten.
Even if no blows are actually struck, those
who made that student fear for his or her
physical safety could be punished for a true
threat.
On the other hand, imagine a speaker comes
to campus, like Milo Yiannopoulos or Ann Coulter.
When Ann Coulter came to the Berkeley campus
in November 2019 I heard some of my students
say that they felt threatened by her very
presence on campus.
That's not enough to be a true threat.
The ideas expressed can never be the basis
for saying that somebody is threatened.
A third category of unprotected speech that's
relevant to our discussion is harassment.
The Supreme Court has been clear, especially
in the employment context, that speech that
amounts to harassment can be the basis for
liability.
Think of the easiest example.
Imagine an employer who says to an employee
sleep with me or you're fired.
It would be no defense for that employer to
say I was just engaging in speech.
In the employment context, the courts have
said that to be harassment, the speech generally
has to be directed at somebody, or it has
to be so pervasive as to materially interfere
with employment opportunities based on race,
sex, religion, or sexual orientation.
I think the same standard should apply in
educational institutions.
It could be harassment, it generally has to
be directed at somebody or so pervasive that
it materially affects educational opportunities
based on race, sex, religion, sexual orientation.
Again let me contrast a couple of examples.
Imagine that somebody tacks what appears to
be a noose on a dormitory door of a room occupied
by an African‑American student.
I think that is clearly harassment.
It rises to the level of a true threat.
On the other hand, there was an incident at
the University of California San Diego where
somebody put in the library what appeared
to be a noose.
I don't believe that single action, though
vile, could be a basis for punishment.
It wouldn't by itself be enough of harassment.
Now, for each of the categories I mentioned,
it's certainly a gray area, when does the
speech become incitement, when does it rise
to the level of a true threat, when is it
enough to be harassment, and these are things
that would need to be argued about or even
litigated.
But you'll notice what I didn't identify as
a category of unprotected speech and that's
hate speech.
And that's because generally hate speech is
protected by the First Amendment.
I have so often been asked by members of an
audience or by reporters, where is the line
drawn between free speech and hate speech?
And I have to say that's a false distinction,
because under the First Amendment, the Supreme
Court has been clear, hate speech is protected
as free speech.
You might remember an incident that occurred
here in the Chicago area in the late 1970s
where the Nazis wanted to march in Skokie,
Illinois.
At the time Skokie was predominantly Jewish
suburb, it had a significant number of Holocaust
survivors.
That's why the Nazi party chose to march there.
Skokie did everything it could to try to exclude
the Nazi demonstrators.
Every court, including the Supreme Court ruled
that the Nazis had the First Amendment to
speak in Skokie.
In 1992, the Supreme Court decided a case,
RAV versus city of St. Paul.
It involved a St. Paul, Minnesota, ordinance
that prohibited burning a cross or painting
a swastika, vile symbols of hate, in a manner
likely to anger, alarm or cause resentment.
The United States Supreme Court unanimously
declared that unconstitutional, making clear
that hateful speech is protected by the First
Amendment.
In 2003, the Supreme Court decided Virginia
versus Black.
It involved a Virginia law that prohibited
cross burning.
The Supreme Court eight to one said that cross
burning is protected by the First Amendment.
Notwithstanding its racist history.
Unless it amounts to a level of a true threat.
Why is this?
After all, almost every European country has
a law that prohibits hate speech.
Why in the United States is it so different?
In part I think the answer is the difficulty
of trying to define hate speech in a manner
that's not unconstitutionally vague or overbroad.
Any law that regulates speech has to be specific
about what's prohibited and what's outlawed.
And yet it's very difficult to formulate a
definition of hate speech that doesn't run
afoul of the First Amendment with regard to
vagueness and overbreadth.
In the early 1990s, over 360 colleges and
universities adopted hate speech codes.
They were all well‑intentioned, but every
one to be considered in a court, without exception,
was declared unconstitutional.
Most always on vagueness and overbreadth grounds.
One of the first cases to come to court involved
the University of Michigan hate speech code.
Following a series of ugly racist incidents,
the University of Michigan adopted a hate
speech code that prohibited speech that stigmatized
or demeaned on the basis of race, sex, religion,
sexual orientation.
And that uses language that's common in European
hate speech statutes.
But what does stigmatize or demean mean?
One of the plaintiffs was a sociobiology graduate
student and he said his research was about
whether or not there are inherent genetic
differences between men and women.
He said he worried that his speech might be
thought to stigmatize on the basis of sex.
In Doe versus university of Michigan, the
federal court found that this hate speech
code was unconstitutionally vague.
So the experience of these hate speech codes
and the hate speech laws in Europe should
give us some pause about embracing them.
So often they're used against the very groups
that they're meant to protect.
When England adopted its first hate speech
law, the initial prosecution under it was
against a Zionist group.
The prosecutor said that he believed that
Zionism was a form of racism, so advocacy
of it was hate speech.
At the University of Michigan, from the time
its code was adopted to when it was struck
down, every disciplinary action under it was
against an African‑American or a Latino
student.
But maybe most of all, hate speech is protected
in the United States because it expresses
an idea.
It's a vile idea, it's an offensive idea,
but still an idea.
And under the First Amendment, all ideas and
views are protected.
My third point is that colleges and universities
can have time, place, and manner restrictions
with regards to speech, so long as they open
adequate alternative places for communication.
Even when there's a right to use government
property for speech, it doesn't mean that
any piece of government property can be used
at any time for any manner.
There's certainly a right here in Chicago
to use public sidewalks and streets for speech,
but it doesn't mean that somebody can have
their protest in the middle of the Dan Ryan
Expressway at rush hour.
Colleges and universities can use time, place,
and manner restrictions to prevent disruption
of campus activities and also to protect safety.
With regard to protecting against disruption
of campus activities, colleges and universities
could say, for example, no demonstration or
protests outside of classroom buildings while
classes are in session.
There can be free speech zones, so long as
they leave adequate places for communication.
I've always believed there can be greater
restrictions of speech in and near dormitories,
because it's a place of repose for the students
who live there.
At the same time, I believe that college and
universities have a legal and an ethical obligation
to protect the safety of their students, their
staff, and their faculty and they can use
time, place, and manner restrictions to achieve
this.
When I came to Berkeley in the summer of 2017,
the chancellor, Carol Christ, was very kind
and asked my advice about the coming free
speech week activities.
And I said that my advice would be to have
the most controversial speakers in an auditorium
rather than the open area of campus, because
if it occurs in an auditorium, it's possible
if necessary to use metal detectors, IDs can
be checked, if it's necessary, the perimeter
can be secured.
But if it's an open enter like a plaza on
the Berkeley campus, it's impossible to do
that.
So when Ben Shapiro came to speak, they said
it had to be an auditorium, they had it in
the largest auditorium on campus, and he objected.
He said he wanted to be able to speak in the
middle of campus, and he spoke.
There was no incident.
But he and his supporters sued and said that
he should have had the right to speak in the
middle of campus and not speak in an auditorium.
The university won that litigation.
The courts saying as I thought they would,
this is a time, place, manner restriction.
I think one of the hardest issues that's going
to come up with regard to this is how much
must a college or university pay in order
to assure safety.
At what point could a college or university
say we just can't protect the safety and that
therefore we're not going to allow this speaker
who is likely to inspire an angry response?
I mentioned the free speech week in September
2017 at Berkeley.
The security cost the campus 4 million dollars
for just that short period of time.
Every dollar of that of course is coming from
other aspects of the educational mission of
the university.
But what if it wasn't free speech week at
Berkeley?
What if it was free speech semester?
What if the cost wasn't 4 million but 40 or
60 million dollars?
Surely there is a place for the campus to
be able to say we can't afford the security
and therefore we're not going to allow this
controversial speaker, but no court has yet
addressed that question.
Chancellor Christ asked me that question directly,
how much does a campus have to pay before
it can say it's not going to allow the speaker,
and I said I'm not your lawyer.
You have campus counsel, but if I were your
lawyer, what I would say is you have to ask
two questions: One is what's your stomach
for litigation, because there's no cases on
point, you're going to get sued if you exclude
the speaker and you might win and you might
lose and if you lose you'll have to pay the
other side's attorney's fees, do you want
to take that risk?
And second what to you want your message to
be about the Berkeley campus?
She decided I think rightly then that she
wanted the message to be that Berkeley was
a free speech campus, chose to absorb the
security costs and allowed the speech, but
the issue remains unresolved and campuses
across the country have to face it.
Fourth and final point, colleges and universities
have the duty to protect their students from
harassment.
Now, I have focused on the free speech side
of the equation.
But colleges and universities have both the
legal and the moral duty to create an inclusive
learning environment for all of their students.
This of course must recognize the way in which
speech can undermine that.
If free speech had no effect, we wouldn't
protect it as a fundamental right.
The fact that expression can be positive,
it can be tremendously destructive.
I am certainly moved by those who talk about
the harms of hate speech on those who were
traditionally excluded from colleges and universities.
In fact I was involved as a lawyer not too
long ago in representing a group of students
against the university.
The case is feminist majority foundation versus
Mary Washington University.
Mary Washington is a public school in Virginia.
There was a campus wide debate on whether
to allow the Greek life fraternities and sororities.
Three women wrote an op ed in the campus newspaper
opposing allowing fraternities at the school.
Their argument was that there's a correlation
between having fraternities and more violence
against women.
These women were then targeted by other students
on campus.
There was then a social media platform called
Yik Yak.
Over 700 messages were directed to them over
Yik Yak, many of them very vile.
Some of them threatening rape and murder.
The students went to the campus administration
and the campus said we can't do anything about
this.
This is anonymous speech over social media.
The campus administrators put something on
their website saying it's anonymous speech
over social media, we can't do anything about
it.
The students sued the university under title
9 which says that recipients of federal funds
cannot discriminate on the basis of sex.
Sexual harassment violates title 9.
The law is clear that colleges and universities
cannot be, quote, deliberately indifferent.
They also sued for denial of equal protection.
The federal district court ruled in favor
of the university, saying that this is free
speech over social media, protected by the
First Amendment.
I represented the students and argued the
case in the United States Court of Appeals
for the fourth circuit.
My argument was that there was much that the
campus could have and should have done, without
ever getting to the point of considering punishing
speech.
The campus administrators could have spoke
out against the hateful expressions, and spoke
out in favor of these women students.
The campus could have offered to buy protection
for these students when they were threatened
with rape and murder.
The campus could have considered a cyber bullying
policy.
But when the speech crossed the line to true
threats, and some of it really did, then it's
speech that could and should have been punished
by the university.
On December 21, 2018, the fourth circuit ruled
in my clients' favor, and the fourth circuit
adopted the arguments that I just expressed
to you, that the college did have the obligation
to protect the students under title 9 and
under equal protection, and I think this case
is important for college and university administrators
to know that they can't do nothing.
They have to consider what is the appropriate
response to the circumstances.
Often the appropriate response is more speech.
Sometimes it's by college and university administrators.
Often it's by the students.
When the white supremacist Richard Spencer
came to Texas A&M, there was a large counter
demonstration in the football stadium.
And I talked to some faculty and students
who were there, how unifying and affirming
it was for people to come together in that
way.
I believe that social media and the Internet
are going to be the hardest free speech issues
for campuses in the future.
It used to be possible to draw a distinction
between speech on campus and speech off campus.
As the Mary Washington University example
shows, such a distinction no longer makes
any sense.
Well, I've tried quickly to go through a number
of principles, basically in 30 minutes, to
cover what I do in a semester of First Amendment
law.
But I realize that I may not have persuaded
everyone and there's certainly many of you
who think there should be much more restrictions
on hate speech than I've argued for.
I think what I have to say to you is my realization
that the only way my speech, our speech, will
be safe tomorrow is to protect the speech
that we don't like today.
That the assumption of the First Amendment
is that we are much better off allowing all
ideas and views to be expressed than to giving
those in power the ability to decide what
ideas and views can be expressed.
There's a faith in that statement, and I have
that faith, at least most of
the time.
Thank you.
(Applause.)
>> ERWIN CHEMERINSKY: I feel so self‑conscious.
>> ZIZI PAPACHARISSI: Hi, everyone.
Good afternoon.
I'm Zizi Papacharissi, department head for
communication, also (inaudible) political
science and I study technology and its social
and political impact.
>> JANE RHODES: Hi, I'm Jane Rhodes.
I'm head of the African‑American studies
department in the college of arts and sciences.
>> ERWIN CHEMERINSKY: I'm still Erwin Chemerinsky.
>> BENJAMIN SUPERFINE: I'm Ben Superfine.
I'm professor and chair of the educational
policy studies department.
>> STEVEN SCHWINN: I'm Steve Schwinn.
I teach at the law school.
I teach constitutional law and human rights.
>> ZIZI PAPACHARISSI: Can we start?
Well, when the Provost invited us to join
in the conversation, she suggested that we
think of some questions to engage you in a
lively conversation, but your perspective
was so balanced and learned and thoughtful
and informed, my questions that I jotted down
were answered and I was trying to come up
‑‑
>> ERWIN CHEMERINSKY: You must talk to my
students they don’t always have that perception
about what I say as dean.
>> ZIZI PAPACHARISSI: But I was really intrigued
and very happy when you brought in the European
context and in particular the EU context because
often people confuse those two and I was wondering
if I could get you to talk about that a little
bit more.
So interest is in hate speech.
So when we think about whether people who
talk about restricting the freedoms of others,
do they have the same right to free speech,
and we think of countries in the European
Union who have made use, availed themselves
over regulatory framework that permits them
to distinguish between hate speech and free
speech.
To what extent do you find that here in the
United States, we might be interpreting the
Constitution and the room that affords in
a way that's not very contemporary?
Especially when we expand the idea of free
speech and we think of more contemporary developments
that you mentioned that include social media
that seem to concern you as far as it being
friendly to toxic forms of speech?
>> ERWIN CHEMERINSKY: I think there is a deeper
commitment to free speech here than in many
other countries, for better or for worse.
One of the things that I did was look to see
how the hate speech laws had been used in
other countries, and I was stunned how often
they had been used against speech that all
of us would say should be protected.
The most frequently prosecuted person under
the French hate speech law is the animal activist
Bridget Bardot, because she's very much against
using animals in religious rituals and many
times have been prosecuted for violating France's
hate speech laws.
I can go through examples country by country
of that.
I also think looking at other countries, but
I'm skeptical that prohibiting hate speech
is really going to decrease hate or hate crimes.
I think that the effect of it is often to
drive it underground, often in that way, to
make it more attractive, to make those who
are prosecuted under it into martyrs, and
you see so much of that around the world too.
So yes I think the United States is different
in this regard.
The culture in regards to speech is different.
But I'm not sure that the experiences of other
countries would change my sense that we should
go more in that direction.
>> JANE RHODES: I too like Zizi, I have enjoyed
and learned an enormous amount both through
your book and through your talk.
>> ERWIN CHEMERINSKY: Thank you.
>> JANE RHODES: Thank you so much.
I want to be a little bit provocative and
push this envelope about hate speech further,
because you present us with I wouldn't say
an idealized notion of how it can operate,
especially on a university campus, but certainly
the way that it should, right?
The exchange of ideas, the tolerance of hateful
speech.
But I think the students and the administrators
and the faculty and people like myself who
push the concept of safe spaces are often
operating from the reality that there are
subsets in our communities who bear the burden
of speech, particularly of hate speech.
When I think about my own experience, when
I think about my students, whether they're
refugees or immigrants or trans or whatever
their identities are, there are subsets within
the nation, within our communities, that experience
vastly larger amounts of hate speech, and
so it seems to me, and I wonder how the law
deals with this, is there a cumulative effect,
and that ‑‑ does that give sort of a greater
claim, thinking about the Holocaust survivors
in Skokie, and I know the case law, the Supreme
Court said no, they didn't have a sort of
greater claim on protection.
But how, particularly in this very sort of
toxic environment of social media and as you
describe the sort of political uses of free
speech, precisely to sort of bludgeon or attack
or injure opponents, how do we sort of make
sense of that and navigate that?
>> ERWIN CHEMERINSKY: I in no way deny the
harms of hate speech that you describe.
I very much believe what you say and what
(inaudible) is absolutely right.
The question is what conclusion do we draw
from it.
I also believe in safe spaces, but we have
to be very careful in how we use that phrase.
If what we mean by safe spaces is the obligation
of the campus to protect the physical safety
of students, absolutely, it's a legal and
moral obligation.
If what we mean by safe spaces is a place
where people can go to, I support that.
So I believe that there should be African‑American
student union, Hispanic student union and
the like as a place where people can go.
But if what's meant by safe spaces is that
people should be made safe from certain ideas
and viewpoints, there I strongly disagree.
There were a couple of incidents on my campus
this year.
I mentioned that Ann Coulter came and spoke
at UC Berkeley in November of 2019.
It was not at the law school or sponsored
by the law school.
The morning after she spoke, some of our students
sent me videos that as students and others
were going in to hear Ann Coulter, they were
assaulted, they were physically punched, shoved,
spit at.
Water was thrown at them.
And after watching the videos and talking
to some of our students, I wrote an email
to all of the students, staff, and faculty,
saying that I believe that all ideas and views
can be expressed in our college campus, that
we don't like certain ideas and views, the
response should be more speech.
It shouldn't be to engage in harassment or
assault.
And I said that I had seen the videos that
occurred with regard to Ann Coulter and described
what I had observed and that this is inappropriate
behavior.
I tried to be emphatic.
It's completely appropriate to protest what
Ann Coulter is saying, but as a law school
we have to stand up for free speech and this
is not acceptable behavior.
Many of my students did not warmly receive
that message.
Posters were put on every bulletin board at
the law school with my picture saying that
I stood up for Ann Coulter's free speech.
Why didn't I stand up for the students who
feel threatened by Ann Coulter's presence
on campus?
A student came to my office and said your
message was like, quote, a slap in the face
to me.
A group of students sent me an email saying
that they felt that Ann Coulter's presence
on campus was violence against them.
I don't believe that the presence of a speaker
on campus is violence against them.
I don't believe I was standing up for anything
other than Ann Coulter has the right to speak
on campus.
But it's clear that my students believed that
part of what is safe space should be about
is we should exclude a speaker like Ann Coulter.
What scares me is today it's Ann Coulter,
tomorrow it's me.
I do know enough about what went on in the
early 1950s to know speakers were excluded
just because of the need to make students
safe from certain ideas.
A week ago Monday, there was an incident on
the Berkeley campus where students for justice
in Palestine put up three big posters that
had pictures of individuals who had been convicted
of terrorist activity in Israel.
Jewish and Israeli students on campus felt
that they were threatened by these posters
being put up.
I think the chancellor was absolutely right
when she said, they have the right to put
up their posters and you have the right to
criticize and denounce the posters.
But both sides have free speech.
Would I deny that it causes an emotional injury
for a DACA recipient to have Ann Coulter on
campus?
No, I believe there's an emotional injury.
Do I believe that a student from Israel whose
family was lost in a terrorist bombing is
upset by seeing those posters?
Absolutely.
But I don't think safe space could mean we
protect our students from ideas or views that
will upset them.
>> JANE RHODES: And I follow up.
On a related question, and thank you so much.
One of the ‑‑ a number of these examples
that you provide both in your book and in
your talk illustrate the ways in which speech,
free speech is sometimes a guide for other
sort of political motivations and strategies.
And, you know, we know that people can utter
speech that ‑‑ saying that it's freedom
of religion, for example, but it's really
sort of targeted at sort of causing harm,
and I understand that what you're trying to
map out for us is how difficult it is for
us to understand that and measure that in
a legal sense.
Is there any standard for harm in terms of
free speech?
I know there is in libel law, for example.
Is there an argument that can be used in terms
of harm?
>> ERWIN CHEMERINSKY: It depends on the harm
that you're talking about.
Incitement laws about preventing the harm
of illegal activity result in speech true
threats is about protecting people from the
harm that comes through assault.
Harassment law is about protecting a certain
kind of harm.
Defamation law is protecting harm to reputation.
So there's certainly instances where we said
the harm is great enough and the ability to
define the unprotected speech is specific
enough that will outlaw the speech.
I don't think we have found a way to do that
with regard to hate speech.
I for a few years when I was at University
of California Irvine taught an undergraduate
class on free speech on campus.
I taught it with Howard gill man who I wrote
the book with and we asked our students as
an exercise to draft a hate speech code that
wasn't vague or overbroad.
And it was interesting that even many of the
students who would be supportive found that
to be an illusive if not an impossible task.
>> BENJAMIN SUPERFINE: I guess we'll go down
the line.
So also I enjoyed the talk.
I'd like to flip it around from the other
side and consider the perspective of students
who feel like their free speech might be constrained.
So this is anecdotal, I'm thinking too of
some of the faculty I know or more conservatively
oriented students who I've had in my classes
and I sense from them that they feel like
their speech is chilled, while some students
feel they're harmed by some sorts of speech.
Some feel that they're more reticent to speak
up in class because of the prevailing climate,
especially on university campuses like UIC
which tends to be pretty liberal.
So I'm wondering if education is so critical
to our democracy and certain groups of students
feel like they can't engage in a kind of speech
because of their political persuasions, whether
there's any appropriate or effective use of
the law, not just to protect speech, but actually
to promote more open dialogue in any sort
of way.
I mean usually we think of free speech as
just protecting people and what happens in
a classroom potentially is a good thing, if
we open dialogue because the law protects
it.
What if the way that people are perceiving
their speech rights is actually driving how
they're responding, it's how they perceive
their place in the culture more broadly and
how they might be censured by other people
in the class and so forth.
When the university is in fact a place for
that open dialogue.
So I guess the question is there any place
for the law to promote rather than protect
free speech in the context of campuses?
>> ERWIN CHEMERINSKY: I think there's ways
for institutions to do that more than I see
a way for the law to do that, and I am very
concerned about what you say.
I'm concerned about the social pressure that
students would feel to not express views ‑‑ the
minority view on that particular topic and
obviously at Berkeley, the overall culture
of the institution is liberal but we have
some very conservative faculty, we have some
very conservative students and I worry about
those students feeling chilled from expressing
themselves and the question is what do we
do about that and the honest answer is I don't
know, although I struggled a great deal with
this issue.
I try very hard at the beginning of every
class how much I want my class to be a place
where all ideas and views can be expressed.
If there's no one who takes a particular side,
I will defend that side in the context of
discussion.
I am very careful to try, even though I'm
not mutual in my own views, in my class to
have both sides come out.
As a dean I feel responsible for making sure
that all of the views come out as much as
possible.
We had an incident again at Berkeley law school
last year where the federalist society had
invited a former Congressman, Barr, to come
and talk about gun rights, and the liberal
student groups really threatened they were
going to disrupt the incident from happening
and I sent an email to all the faculty, staff
and students, again saying that all ideas
can be expressed.
If you don't like it, have your own demonstration.
But you don't have the right to disrupt the
speech of somebody else and if you do, you
can be punished for that.
And the liberal student groups did not disrupt.
They allowed him to speak.
They put up notices on billboards, the names
of people who have died from gun violence.
They did a die‑in in the hall, but I think
that was an appropriate response.
I've had incidents where conservative student
groups have come and wanted to have speakers
and didn't have enough funds, and I would
go out of my way as the dean to make sure
they had funds.
Some viewpoints are neutral and I have to
provide it for any viewpoint, but especially
I want to make sure that the views that often
don't get heard get expressed.
That's not a full answer to your question,
but I don't have a good answer.
But what can we as educators, as professors,
as deans, do to try to make sure that our
campuses are places where students feel comfortable
speaking.
Because the idea is with social pressure,
not with institutional censorship.
>> STEVEN SCHWINN: First off, I just want
to say how much I appreciated your book and
your talk again, on its second, third or fourth
read at this point, I'm not sure which, and
what an honor it is to be on this panel and
to share the stage with you.
>> ERWIN CHEMERINSKY: Likewise with you.
>> STEVEN SCHWINN: I truly appreciate it,
and thank you to Provost Poser for putting
this together and to Dean Dickerson for helping
to sponsor the talk earlier today.
It's just a fabulous program.
I have a question that I hope it's okay, it
comes in maybe four parts.
Is that okay?
(Laughter.)
>> ERWIN CHEMERINSKY: Is it possible to do
them one at a time so I don't need to remember
part one when we're at part four?
>> STEVEN SCHWINN: So what I worry about generally
is some of the Supreme Court doctrine around
free speech as it applies to a campus, and
I worry about these things in the doctrine,
but I think they have particular resonance
in campus speech and some of the things that
we've been talking about.
And I'm intensely curious about your reaction
to these.
So one is Supreme Court doctrine around free
speech is built around this idea of marketplace
of ideas.
Right?
And the way this works is sort of the more
speech, the better.
The good speech through this kind of marketplace
of ideas will rise to the top.
The bad speech or the untruthful speech or
the harmful speech will kind of go away through
this kind of marketplace, but like any marketplace,
the marketplace of ideas relies on things
like perfect information, equality of opportunity
to speak, equal speaking voices, and I'm not
always sure that we have that.
We've dealt with this at a different context
no too long ago with the citizens united decision
and the backlash to citizens united, showing
that in the political realm, we don't really
all have an equal voice, right?
Many of us speak with microphones while others
of us speak with whispers and I worry in the
campus context, some of that may be true as
well.
We don't come with equal voice so I'm not
sure that the marketplace of ideas is a great
analogy and what I worry about particularly
is speech that would exclude students from
equal participation in the marketplace.
Speech itself that would have that effect.
That's part one.
>> ERWIN CHEMERINSKY: Okay.
Can I respond?
(Laughter.)
One at a time.
I think the marketplace of ideas metaphor
is terribly flawed.
I mean it comes from John Milton and John
Stewart Mill, but there's all sorts of reasons
to doubt the truth will necessarily triumph
in the marketplace of ideas.
You identified some of them.
Some have much more in the way of resources
and they can drown out other voices in the
marketplace of ideas.
Also why believe that people would choose
the good and the true over the false and the
bad?
And we can find places in world history where
at least were true at the time horrible ideas
were chosen and came to the fore.
But my question is what is the alternative
to the marketplace of ideas metaphor.
The alternative is to allow those in power
to pick and choose what messages we should
hear and not hear to decide what they believe
is true and to stop the speech that's false.
And as much as I distrust the marketplace
of ideas, I distrust those in power to be
making those choices for us.
>> STEVEN SCHWINN: Part B.
(Laughter.)
So this draws on Supreme Court doctrine as
well, and another thing that I worry about
in the context of campus speech, you talked
about categories of unprotected or lesser
protected speech that are well‑known to
those of us that do First Amendment type law
or law students.
I hope they're well‑known to law students.
You can check me on that.
But what that relies on or so much of that
doctrine is the relationship between the speech
and the harm, and the Supreme Court has demanded
a really tight relationship between the speech
and the harm, a kind of imminent relationship,
so that the speech imminently causes the harm
and what I worry about in the context of campus
speech is that I worry that we may see harm
that comes sometimes later, or is not measurable
by those traditional standards, or comes through
particularly with social media, may come at
a different point or in a different way that
we don't measure in conventional incitement
law, for example.
>> ERWIN CHEMERINSKY: I agree.
But I also think it's very important to talk
about what kinds of harms the law can prevent
and what type of harm the law can't prevent.
I don't think the law can prevent the harm
of people getting offended.
I don't think we can stop speech on that basis.
Because to me once we go down that path, there
is no stopping point.
The most vehement argument I ever had with
my father when he was alive was whether the
Nazis should be able to march in Skokie.
My dad wasn't a lawyer, he never went to college,
but he just couldn't accept why the people
in Skokie should be subjected to the harm,
and it's not unlike what you were saying.
And I said here's the problem.
If we say protecting those in Skokie is a
justification, then why can't there be anytime
that an audience is deeply offended by a speaker,
we should stop the speaker.
Southerners who were deeply committed to segregation
could have said they were very much offended
by those who were arguing for desegregation
and civil rights Marchers.
I can say I like the pro civil rights speech
so we'll permit that.
I don't like the Nazi speech so we'll outlaw
that.
But then we get to exactly what I don't want
the government to have the power to do, and
I don't find the principle that allows the
prohibition of offensive speech that wouldn't
get us to exactly that point.
>> STEVEN SCHWINN: That actually answered
my third question.
The other thing I worry about in the Supreme
Court doctrine is this viewpoint of neutrality.
So the Supreme Court requires government regulation
to be viewpoint neutral.
Even if it's regulating within one of these
areas that the government could flatly prohibit
speech.
And I guess it seems to me that there are
some viewpoints that maybe we ‑‑ and I'm
not sure, would widely agree that the government
could at least identify.
For example, it does seem to me that there's
a difference between hate speech and speech
that excludes, versus speech that includes.
And I just wonder whether we can't trust the
government a little bit more to make some
of those decisions.
>> ERWIN CHEMERINSKY: I don't trust the government.
(Laughter.)
I don't want this to be political, but I don't
want Donald Trump to be able to make the decisions
about what speech can go on and what speech
can't go on, and I don't want him deciding
what's true and what's false, and if you have
a different president you dislike you can
substitute that or governor or mayor or president
of a university or anybody else in that regard.
And let me give you an example again from
Supreme Court doctrine to draw a distinction
that you articulate.
It's a case you know well from a few years
ago, 2017, Matal versus Tam.
It involves a dance rock group out of Portland,
Oregon.
All of its members are Asian‑Americans.
It's led by a man named Simon Tam.
They decided they wanted to call themselves
the Slants, Slants being a derogatory term
sometimes directed at Asians and they said
they wanted to do this because they wanted
to appropriate back to the Asian community
but it previously was a slur . They likened
how the word queer had been thought of as
disparaging to gays and lesbians and then
got widely used by the gay and lesbian community
and appropriated it back.
They wanted to register the name of the band
as a trademark.
But the Lannon act, the law governing trademarks
doesn't allow registration of a trademark
if it's disparaging to any person or persons.
They said it's disparaging to Asians.
We're not going to allow it.
The Supreme Court unanimously ruled in favor
of the group and declared the law unconstitutional,
but which side of the line is that on?
You'd say is that hateful because Slants is
derogatory?
Or is this intolerant if it's an Asian group
that wants to use it?
Think of the racial epithet the N word.
Is it okay if it's used by a rock group that
‑‑ a rap group that used it in its name
but not okay if it's used?
I don't know how you can draw those distinctions,
and I think that's what the Supreme Court
has said, that we're not going to give the
government that power.
>> STEVEN SCHWINN: I am right there with you.
So my final question.
So the Supreme Court has said that the government
itself when it speaks is not constrained by
these principles.
The government can say whatever it wants and
if we are in a marketplace of ideas, don't
we have an obligation in higher education,
we administrators, we teachers, we students,
to say more to combat the speech that we find
unpleasant or disparaging, and doesn't the
university have the obligation to speak out?
>> ERWIN CHEMERINSKY: Yes, with a but.
Isn't that a great law professor answer?
(Laughter.)
I believe that college and university administrators,
chancellors, presidents, provosts, deans,
do have the obligation to speak out and I
can point to many instances when there were
hateful incidents, the speech really made
a difference.
A long time ago when I was professor at the
University of Southern California, somebody
wrote a homophobic slur on a board in a room.
Rather than figure out who wrote it and publish
the student, the dean put a letter in every
student and faculty mailbox.
Shows you how long ago, it was before email,
denouncing it and speaking out about why it
was wrong.
I think it was very unifying for the community
at that moment.
So I think it's important.
And as I said to the fourth circuit in the
Mary Washington case, I think that it's important
for the campus administrators to speak out
against what was being directed to these students
over Yik yak.
Here's the but.
I also think it's harder for the campus administrator
to know when are the appropriate times to
do that.
I know if I speak too much and send too many
emails, they're not going to get read and
they're going to get dismissed and it's a
hard choice of what are the right situations
to do this, and you have to make it in real
time at the moment.
So when the Ann Coulter thing happened in
November, I had to decide within about five
minutes was I going to send a message to the
students, staff and faculty about it.
I chose to do that.
There are other instances where students said
you should speak out against this.
I said no, this isn't the time.
But those are judgment calls.
And they're hard judgment calls.
>> STEVEN SCHWINN: Thank you.
>> SUSAN Poser: We have a whole bunch of very
good audience questions so I want to get to
them.
I want to just say one thing.
I don't know if anybody thought about this,
but if you bring us four part questions at
campus conversations, I'm not sure we would
have gotten as far as this.
>> STEVEN SCHWINN: I'm sorry.
>> SUSAN Poser: I couldn't help that.
I suffer from the same problem.
Okay.
So some of these came in themes, and some
of them I have heard before.
And so ‑‑ and some of these actually ‑‑ I
also encourage everybody to respond and put
your points of view in in response to these
questions.
So I'm going to read that I think are on the
same point.
The first one is physical safety different
from psychological or emotional safety?
And then relatedly, does the destigmatization
of mental illness and an increasing acceptance
of mental health as equivalent to physical
health lead to an erosion of the difference
between physical safety and mental safety?
And I think this is actually just in my own
experience ‑‑
(Laughter.)
Scared myself there.
A really important issue, because I think
that the sort of anti‑bullying culture that
is now pervades the schools, the high schools
and grade schools, that to some extent this
idea is being taught and so they come to college,
and then we tell them no, no, no, it's not
true somehow.
How do we handle that argument?
What's the answer to that question?
>> ZIZI PAPACHARISSI: May I add a second part
to that question?
And this is sort of following up on Jane's
point about safe spaces and addressing both
physical and mental harm.
Yes we live in a country that protects and
constitutionally affords the right to free
speech, but it also affords the right to bear
arms.
So to what extent are those rights at odds
with each other?
And again I want to return to the idea of
perhaps we are reading, your thoughts on whether
we're reading and interpreting the Constitution
in a way that's not compatible with our times.
>> ERWIN CHEMERINSKY: I do think there's a
difference there has to be under the Constitution
between speech that causes physical harm,
like incitement, which (inaudible) and speech
which causes emotional distress.
If there is not such a distinction, then I
don't know of any principle that wouldn't
allow the government to stop any speech that
affects a significant number of people, because
we certainly applaud the civil rights demonstrators,
but there's no doubt it caused emotional distress
to those who supported segregation, and you
can't say I like this speech, we're going
to permit it, I don't like that speech, so
we won't.
I don't deny the linkage between emotional
and physical health, but I think the law rightly
does draw a distinction in terms of prohibiting
speech because it risks physical harm versus
allowing certain speech because of emotional
harm.
In terms of the Second Amendment, by initial
answer is I think that the government can
prohibit people from having guns and weapons
at rallies.
I don't think there should be a Second Amendment
right to have guns in public anyway, but even
if there is, people aren't going to bring
their guns and weapons to the rally to engage
in reasoned discourse.
>> SUSAN Poser: Are there more responses?
>> BENJAMIN SUPERFINE: This is more of a wondering
than anything else, I mean I can imagine that
we could come up with some pretty solid social
science evidence that says certain kinds of
speech like a noose on the door as you talked
about before, could influence some kind of
construct like campus climate, and we could
see because of that influence, the strong
likelihood that students would suffer a certain
kind of harm which would negatively impact
their ability to engage with education on
campus.
So if we could establish those kinds of empirical
links strongly and really document the likelihood
of those specific kinds of educational harms
that might provide us with a more solid footing
for that sort of argument.
Again we lose the directness that Steve was
talking about about the link between the act
and the actual harm that's taking place, which
is really critical for the courts, but it
might get at least a pathway for us to think
about this.
I mean I'm all for coming up with empirical
evidence rather than surmising what's actually
happening in the world.
>> ERWIN CHEMERINSKY: I wonder though what's
the stopping point of that.
Charles Murray published a really awful book
arguing that there were racial differences
genetically in terms of intelligence.
The result of that book is that many people
responded to it and showed that the methodology
equally flawed and wasn't it better that they
exposed that rather than that not happen.
Should Charles Murray now be excluded from
speaking on campuses because we find his ideas
to be offensive?
Well, what about those who oppose affirmative
action?
Could we say that that's very hurtful to students
who believe in race conscious admissions programs?
What about those who oppose same sex marriage?
Couldn't that be very hurtful towards gay
and lesbian students.
We could go on with examples, and I guess
I'm much more comfortable with saying I would
rather have all ideas and views to be expressed
rather than to give the campus the ability
to say this idea is not okay, this idea we
embrace and you can express it.
>> JANE RHODES: If I could add a little bit
also to your differentiation between sort
of physical harm and psychological harm.
One of the things that I think that also complicated
that further is that there is sort of medical
evidence and biological evidence that racism
and other forms of discrimination have a physiological
effect as well as a psychological effect.
The life span of African‑Americans is significantly
less than whites, and, you know, I'm sort
of parsing this beyond for the sake of discussion
because we don't now how much the speech acts
and utterances are part of that overall sort
of environment of racism that then affects
people's life spans.
How do we though account for that within a
legal context, or can we?
>> ERWIN CHEMERINSKY: I think that we have
the obligation to do everything that we can
to create an inclusive learning environment
for students, and there's so much that we
can and must do before we get to the stage
of punishing students.
I always am much more comfortable dealing
with concrete examples than abstractions.
Taking Ann Coulter appearing on this or the
Berkeley campus.
I have no doubt that her presence causes enormous
emotional stress say to our DACA students
and to our students of color.
But is that a reason then to say we're not
going to allow Ann Coulter?
>> JANE RHODES: Right, and I mean it goes
back to Ben's comment too about how do you
establish that through hard empirical evidence
and I'm not sure you can.
But it seems to me that that doesn't often
emerge in the conversation.
Anyway.
>> STEVEN SCHWINN: The Supreme Court actually
touched on an issue not too long ago related
to this in the Brown versus entertainment
merchants case where California tried to regulate
access by minors to so called violent video
games, and the Supreme Court struck it despite
a wealth of social science evidence that experiencing
these violent video games would have lasting
and permanent harm on youth who played them.
And I just wonder is there any overlap with
what we're talking about in that case?
>> ERWIN CHEMERINSKY: I think very much so,
because it then questions whether this is
a matter of social science and data or is
it a question of value choices.
I don't think Justice Scalia's majority opinion
in that case was about denying that playing
violent video games might have some correlation
to violent behavior, but he was very concerned
as I am about where do you draw the line.
In the 1950s there was great concern about
children reading comic books could create
violent behavior.
Maybe there was, maybe there wasn't empirical
evidence.
Violent movies, does that then correspond
to violence and I think what he was saying
is it's not a question of what the data proves.
It's a question of the value choices with
regard to speech.
>> SUSAN POSER: I think Roberts also ‑‑ I'm
not sure if it was that case or some other
case that he called it social science gobbledygook
or something like that, was it in that case?
So I don't think they're going to be looking
at social science anytime soon.
>> STEVEN SCHWINN: It should be also noted
that social science doesn't actually ‑‑ also
has conclusive support that playing video
games.
So it's something that we have to keep in
mind that it has to do with imperfections
of the Supreme Court decisions and that often
they're a little bit political as well.
(Laughter.)
>> ERWIN CHEMERINSKY: It often is, and as
you know better than anybody, often for social
science debates about what the social science
actually shows.
In the 1980s, there was an effort to try to
ban pornography as sexually explicit solicitation
of women and there was an argument that was
made that exposure to pornography increases
violent behavior.
But then detailed studies were done and it
showed that exposure to violence showed that,
not exposure to the sexual material does that.
So we could then be having an argument over
what does the social science show.
>> SUSAN POSER: Okay.
On a university campus, academic freedom is
an important aspect of free speech.
In light of the Garcetti decision, should
a university affirm this right?
What is the relation of free speech to academic
freedom?
>> ERWIN CHEMERINSKY: The Garcetti case that's
referred there is a case called Garcetti versus
Ceballos in 2006.
It says that there's no First Amendment protection
for the speech of government employees on
the job in the scope of their duties.
It involved a deputy district attorney in
Los Angeles county, Richard Ceballos, who
believed a deputy sheriff in one of his cases
was lying.
He wrote a memo to the file to that effect.
The supervisor, actually a former student
of mine, told him to soften the tone of that
memo.
He refused.
He gave a copy of that memo to the defense
lawyers which he believed he was constitutionally
required to do, and he got transferred to
a much less desirable position and removed
from his supervisory responsibility.
He sued and said this violates my First Amendment
rights.
The Supreme Court, five to four, in an opinion
by Justice Kennedy said there's no First Amendment
protection for the speech of government employees
on the job in the scope of their duties.
I think it is a terrible decision.
I argued a case in the ninth circuit a week
ago Tuesday on behalf of some police officers
who were fired for their speech.
I filed a cert petition that's pending right
now on behalf of a school superintendent who
was fired because of his speech.
There is language though, especially in Justice
Souter's opinion that said academic institutions
might be different and Garcetti shouldn't
apply there and there was a ninth circuit
case on point that says Garcetti versus Ceballos
doesn't apply in academic institutions.
Now to the larger question.
I think it's very important to draw the distinction
between speech in a professional realm versus
speech in a personal realm when we're talking
about academic freedom.
When we evaluate a faculty candidate for appointment
or faculty member for tenure and promotion,
of course we're looking at the content of
the scholarship.
There's no other way to do it.
If a professor is assigned to teach contract
in law school, says I don't want to do it,
I'm going to come in every day and talk about
baseball, even though the punishment would
be for the speech, that speech in a professional
realm can be the basis for evaluation of discipline.
When a professor grades a student's papers,
obviously it's based on the content of those
papers.
I hope it's never based on the viewpoint expressed,
but it's certainly based on content.
On the other hand, there is a personal realm,
and I think that what a professor says on
his or her own can't be the basis for discipline.
So if a history department says we're not
going to hire a Holocaust denier, I think
that's completely appropriate in their professional
judgment in saying that.
But if a professor on his or her own time
wants to go to a rally and deny the Holocaust,
I don't think the professor can be fired for
that, and I think that's a very important
distinction that's often lost in the discussion
of free speech on campus.
>> SUSAN Poser: Okay.
Recently anti‑gay groups at university of
Louisville distributed pamphlets in a classroom
where a class on LGBTQ rights was about to
begin.
What should an instructor do in such an instance?
How to balance free speech against managing
one's classroom?
You're passing it on.
>> ERWIN CHEMERINSKY: Calling on my colleagues.
(Laughter.)
I believe a professor has a great deal of
latitude in managing his or her classroom,
'cause that's the way the professional realm
that I'm talking about.
So if I'm having a discussion about presidential
power, and a student says, gosh, I really
want to talk about the golden state warriors,
I as the professor am able to say, no, that's
not on topic, we're not doing that now.
Or imagine a student says something very offensive
in my class.
And I've taught long enough this happened.
I feel appropriate and necessary for me as
the professor to say I know you didn't mean
it to be hurtful, but here is why it's hurtful
and not acceptable in the discourse of this
classroom.
And I think that's appropriate for me to do.
I think if in my class, students wanted to
say very hurtful things with regards to gays
and lesbians, that I would be saying, no,
this isn't an acceptable way to talk.
I think your hypothetical is much more difficult
because it's handing out leaflets in the classroom
and I don't know if I as a professor can say
don't hand out leaflets in my classroom, because
that's really a question of university rules,
and it is more speech.
You know, if somebody wants to stand outside
the door of my classroom and hand out the
leaflets, that's more speech.
We had an instance last year when an Israeli
Supreme Court justice was coming to speak
at the law school, and the students for justice
in Palestine threatened to disrupt it and
I again said you can't disrupt the speech.
They stood at the door and handed out leaflets.
It was worded in very strong language but
I thought that was their right to do it.
So I'm not exactly sure where this hypothetical
situation ‑‑
>> SUSAN Poser: It's a good one because it's
actually a class that's going to start talking
about the issue of LGBTQ rights.
>> ERWIN CHEMERINSKY: My instinct is to say
yes, it's a leaflet.
That's more speech.
And maybe I as a professor will talk about
it, maybe it will provoke a discussion.
>> SUSAN Poser: And it doesn't interrupt the
flow of the class at some level.
>> ERWIN CHEMERINSKY: Exactly.
>> STEVEN SCHWINN: And you may have a Murray
moment here.
The speech may actually back fire on the speaker
once you vet it and have an opportunity to
talk about it.
This is a learning moment, it seems to me
for everybody.
And an opportunity to perhaps even persuade
the speaker where as a leaflet may not be
the right deal.
>> ERWIN CHEMERINSKY: And it would be different
if it was a group coming in and disrupting
my class.
If they're going to shout, they have no right
to do that.
Handing out a leaflet to me is more speech,
and I think the response could be very much
like you describe.
>> JANE RHODES: Another example that's sort
of similar to this and this has happened on
this campus as well as other campuses I'm
sure you've heard the surveillance of where
organizations will go into classes to sort
of observe what they might see as being politically
problematic content of a class, either the
syllabus or the professor's approach to the
class.
Taking that information then out of the class
and usually broadcasting it somehow on social
media in sort of hostile or negative light.
Does the university or the teacher have any
standing in that regard or again is it ‑‑ they
have the right ‑‑ not have the right to
enter a classroom in which they're not enrolled
to ‑‑ for the purposes of creating sort
of disruptive speech?
>> ERWIN CHEMERINSKY: I don't know your policies.
Campuses can have rules with regard to who
can audit the class or who can come in if
they're not enrolled in the class.
We have policies like that and I can go into
why, that if you're not enrolled in the class,
you can be there only with permission of the
instructor.
Also recording can't be done without permission
of the professor unless the campus has a policy
requiring it.
And so to record someone without their permission
is actually a crime in California.
So you get to that aspect.
But if it's a student who sits in my class
and takes notes and then passes it on to somebody
else, I don't think I've got any protection
against them doing that.
>> ZIZI PAPACHARISSI: I have a follow‑up
to that, because I think we often turn or
return to the legal framework because we assume
it's going to provide us with some very specific
and to a certain extent relatively clear‑cut
and direct solutions to the problem.
But I think often it limits us as well.
And I wonder if ‑‑ I know this problem
is not just a legal problem.
It's also a philosophical problem and I wonder
what your thoughts are on this.
When we apply the legal framework to the university,
we seem to be treating the university just
like any other space.
But the university is not just like any other
space.
It's a space that serves a particular function
within a society.
So to what extent does the law recognize that?
And I'll give you an example.
You know, I grew up in a country where university
space was ‑‑ in Greece, where university
space was deeply politicized.
Part of the reason why I decided to devote
my career here is because I wanted to exist
in a university space where chancellors were
not elected based on which party they supported
and what their politics were, and I'm not
going to argue that university spaces in the
United States are not political and not idealized
but to what extent can you make the argument
that the university is a space that serves
a very different function in a society, and
we should do what we can to protect that function?
>> ERWIN CHEMERINSKY: A couple of thoughts
there.
One is I agree with you that the university
performs a certain function in society, but
the question is what conclusion do you draw
from that?
I think that my conclusion is that the university
should be a place where all ideas and views
should be expressed, 'cause if there's any
place that really models the marketplace of
ideas, it should be a college campus.
I worry that the alternative would then say
that the campus can say that any speech that
it believes is inconsistent with its mission,
it should be able to stop, and so in the early
1950s, campuses said Communist speech is inconsistent
with our mission.
The president of Yale said we're never going
to fire a professor for being a Communist
because we never had Communists on our faculty.
Well, we now decry that, but just change the
topic, if we give the university the power
to do that.
The other thought in terms of where you started
of looking at law, one of the points that
I constantly want to make for my students,
especially when I teach First Amendment law
but more generally, is there's a real difference
between the right to say something and whether
something should be said.
And people often ignore that distinction,
and it's an enormously important one.
Just because you have the right to say it
doesn't mean you should say it and there's
some instances in universities where professors
have said truly outrageous things.
Amy Wax, a professor at the University of
Pennsylvania law school said some really hateful
things, and the dean denounced what she said,
but she said but I have the First Amendment
right to say it.
Of course she does.
But he also has the First Amendment right
to say that was really hurtful and inappropriate
and yeah you have the right to say it, but
that doesn’t mean it should be said.
We all learn from a young age that there's
certain things that you don't say in public.
You don't say it because it's hurtful.
And I think it's okay to teach our students,
yeah you have the right to say it, but that
doesn't mean it should be said.
>> ZIZI PAPACHARISSI: Yeah I was hoping to
hear something like that everyone has the
right to an opinion but have they earned that
right.
>> BENJAMIN SUPERFINE: I think your instincts
on this is right and I appreciate the balance
that you bring to it.
The university is a special place and we need
to preserve the free speech rights of everybody
around to fulfill the special mission of a
university but the institution takes a very
important role in calling out harm, but it's
the institution's discretion and the people
within it that really have to do that kind
of work.
It's a difficult balancing act.
I don't think there's a clear answer in a
lot of these situations, but ‑‑ I mean
I think appointing university leaders at all
sorts of different levels and making sure
the institutional climate is in place to really
call out those kinds of harms while preserving
speech is probably the key to making these
kinds of educational conversations really
work.
>> SUSAN POSER And I think to take it one
step further, thinking along the lines of
question when administrators should send out
emails because you don't want it to just be
a weekly thing and then people stop paying
attention.
You know, one could imagine a situation where
the university decides to do something that
may really be walking a line on free speech,
in other words denouncing something or not
having someone come and speak, and be willing
to be sued for it, for the benefit of the
culture, or for the benefit of a certain group
of students that they feel will really be
harmed in that instance.
I'm not suggesting that's a good thing to
do, but it is something that a university
could do in the sort of sue me realm.
>> ERWIN CHEMERINSKY: Can I do an except here?
>> SUSAN POSER: Yes, please.
>> ERWIN CHEMERINSKY: The Trump administration
has now put out proposed rules from the Department
of Education, comments are due next Tuesday,
these are rules about free speech and one
of the rules said that if there is a judgment
against a campus for violating free speech,
it's a final judgment of the court, then that
is the basis for depriving a university of
its federal funds and that to me is very frightening,
'cause it's now upped the ante against the
university that wants to say, okay, we'll
take the risk of litigation because we want
to stand up for this principle of the law
is uncertainly.
There's no reasonableness defense built in
for the university.
And I'm very afraid of this regulation, because
it would really take ‑‑ if I were a university
counsel, I'd be a lot more hesitant of taking
chances in litigation.
>> SUSAN POSER: Fair enough.
Absolutely.
Okay.
I think we are at the end.
So let's thank our panel and Dean Chemerinsky.
(Applause.)
(End of presentation.)
