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Reimagining Free Speech at Brown University

On October 29, as you may have heard, New York City Police Commissioner Raymond Kelly was shouted down and prevented from speaking at Brown University. William Jacobson of Legal Insurrection has written extensively on the event and the ensuing controversy. I wish to address the three arguments, all of them weak, that supporters of the protest have been making.

1. Shouting down a speaker is protected by the First Amendment. One Brown student and protest organizer crowed that the demonstration was “a powerful demonstration of free speech.” We have heard this argument before. In 2010, when former Israeli Ambassador Michael Oren came to speak at UC-Irvine, audience members attempted to shout Oren down. Eleven of them were arrested. Erwin Chemerinsky, Dean of Irvine’s School of Law and the Raymond Pryke Professor of First Amendment Law responded, in a Los Angeles Times op-ed, to the claim that the protester’s rights had been violated. His remarks are worth quoting at length:

Freedom of speech, on campuses and elsewhere, is rendered meaningless if speakers can be shouted down by those who disagree. The law is well established that the government can act to prevent a heckler’s veto—prevent the reaction of the audience from silencing the speaker. There is simply no 1st Amendment right to go into an auditorium and prevent a speaker from being heard, no matter who the speaker is or how strongly one disagrees with his or her message.

Chemerinsky, author of the Conservative Assault on the Constitution, has impeccable liberal credentials. He is also a critic of New York’s stop-and-frisk policing policy, opposition to which motivated the protesters. Nonetheless, he tells us that from a First Amendment perspective the “heckler’s veto” is “an easy case.”

2. Raymond Kelly is so powerful that it is impossible to have an exchange with him. Naoko Shibusawa, a professor of history at Brown, applauds the protesters, observing that “‘Misbehavior’ is a tactic of the disempowered toward disrupting the status quo.” A Brown University senior makes a similar argument in the Guardian: “protest is discourse on the terms of the oppressed, and it takes a ‘disruption’ for marginalized communities to have their voices heard.”

Set aside that opponents of stop and frisk are not marginalized at Brown, where only 8 percent of students polled by the Brown Daily Herald support the tactic. More importantly, Bill de Blasio, who campaigned against stop and frisk, was just elected mayor of New York in a landslide, and Kelly is probably on his way out. De Blasio and his supporters evidently do not agree that, in the words of the same Brown senior, “the status quo does not abide nor will it even acknowledge critical analysis.”

3. It was an offense to blacks and Hispanics to invite Kelly, and no one who has not been stopped and frisked has a right to an opinion about it. As one student commented: “Ray Kelly is a terrorist, and he’s terrorizing our communities. Until you feel terrorism in your life, I don’t think you have the right to speak on this subject.” Marion Orr, a professor of political science and director of the center responsible for bringing Kelly to campus, evidently accepted at least part of that student’s premise when he apologized: “I sincerely apologize to my students,” he said. “Especially to my black students and Latino brothers and sisters — it wasn’t my intention to hurt you, and it hurts me to hear that my decision caused so much pain.”

Yet even after de Blasio’s campaign, according to a Quinnipiac University poll, 24 percent of black likely voters and 36 percent of Hispanic likely voters supported stop and frisk. In an August 2012 Quinippiac poll, a majority of Hispanic voters approved of stop and frisk, and while the great majority of black voters opposed it, a majority also approved of Kelly’s job performance. Whether stop and frisk is good policy or not, these data suggest that it is absurd to apologize to blacks and Latinos for the mere act of inviting Ray Kelly to campus. 

The good news is that these arguments are not accepted widely, even at Brown, where, according to the Brown Daily Herald poll, 73 percent of students disagree with the protesters’ decision to shout Ray Kelly down. Brown President Christina Paxson will form a committee to investigate the incident. In a letter to the Brown University community, President Paxson quotes the Code of Student Conduct, according to which “protest becomes unacceptable when it obstructs the basic exchange of ideas. “These standards of conduct,” she adds, “will be upheld and enforced.” Let’s hope so.

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