At the end, we could not agree on a code. It was a useful experiment in democracy and accountability. I would have preferred us to adopt a code limited to those instances of expression—such as a teacher calling a minority student by a negative racial or other term—which everyone agrees is unacceptable in a classroom setting. This would have sent a powerful message that no other type of speech, regardless of how offensive it might be to some, can be prohibited. If a particularly inappropriate expression that had not been included in the codification was then used, the committee could consider including it for the future, but that could not be the basis for imposing discipline on speech that took place prior to the expression’s inclusion in the code.
The virtue of a code is that it leaves no room for “common law crimes” or broad discretion. The vice of a code is that it is often underinclusive—it excludes conduct (or, in this case, speech) that is novel or that was not considered by the codifiers. In the area of freedom of expression, that virtue trumps its vice: It is better to have rules regulating speech that are underinclusive than to have rules that are overinclusive.35
There will never be a perfect balance struck between the need for open discourse and the demand to censor deeply offensive and arguably dangerous speech. The struggle to strike this delicate balance never does stay won. What history seems to teach us is generally to err on the side of more disclosure rather than more censorship, even when it comes to national security. This certainly should be true when it comes to speech deemed offensive to some on a university campus.
8
EXPRESSIONS THAT INCITE VIOLENCE AND DISRUPT SPEAKERS
Bruce Franklin and the Muslim Student Association
Expressions that incite violence or disrupt speakers also require a difficult balance among the rights of the disruptive speaker, the rights of the potential victims of the incited violence, and the rights of the disrupted speaker.
There are at least two types of expression that incite violence. The first is reactive—that is, the speaker so deeply upsets or offends the person to whom he is speaking that the listener reacts to the speech by physically attacking the speaker. This comes under the legal rubric of “fighting words”—words that cause the listener to fight back.1 The second is proactive—that is, the speaker urges his listeners to commit violence and the listeners comply by hurting a third person or institution. This comes under the legal rubric of “clear and present danger.”2
Early in my career I was involved in both types of cases.
FIGHTING WORDS
In the famous neo-Nazi march through Skokie, Illinois, the Nazi thugs decided to march—with anti-Semitic chants, signs, and uniforms—through a Jewish community with a large number of Holocaust survivors. The city banned the march on the ground that it would provoke a violent reaction from survivors. The Nazis sued. To the surprise of many, and to the dismay of my mother, I urged the ACLU to defend the right of the Nazis to march through Skokie, and I urged the Jews to ignore them, in order not to give the Nazis the publicity they craved. I don’t believe in the “fighting words” exception to the First Amendment. The law should not legitimate or justify violence by recognizing this exception. Experience demonstrates that when victims respond to such offensive provocations by violence or censorship, the provocateurs win in the court of public opinion. That’s what happened in Skokie. The Nazi thugs became the focus of attention as a result of being censored by Skokie. They were interviewed by the media, their numbers and influence grew, and they received a degree of legitimacy they had previously been denied.
I understood why the Holocaust survivors would be deeply offended, even possibly traumatized, by being forced to reexperience the spectacle of brown-shirted Nazis wearing swastikas, but I worried about the implications of a judicial decision authorizing censorship. It could be used to justify the censorship of a march by the likes of Martin Luther King through a segregated community in the South, whose residents would be deeply offended by an integrated group marching through their streets. It’s no answer to say that King was good or right and the Nazis are bad and wrong, because the First Amendment must always be content-neutral and not prefer good and right speech over bad and wrong speech. That’s for the public to decide, only after being presented with both sides without government interference. That’s how the marketplace of ideas is supposed to operate in a democracy. The government must protect bad, wrong, and offensive speakers from those who would react violently. Speech, not violence, is protected by the First Amendment, even if the violence is a predictable and understandable reaction to the speech.3
Moreover, if a violent reaction to speech is deemed to justify censorship, then the threat to commit violence empowers “the victims” of provocative speech to serve as censors. It thus incentivizes and encourages violent reactions to bad speech. (It may also encourage, perhaps unconsciously, some victims to exaggerate the outrage they feel, because the law rewards such exaggerated feelings with the power of censorship.) This “violence veto” should not be encouraged by the law. Hard as it may be to arrest the good “victims” rather than the bad provokers, the First Amendment requires that the government side with the “bad” speakers, rather than the “good” violence-threateners.
In the end, the Nazis “won” the encounter in Skokie because good and decent people in that community decided to try to censor rather than ridicule them.
CLEAR AND PRESENT DANGER
My experience with “clear and present danger” incitement to violence also took place in a small community—the campus of Stanford University. Shortly after arriving at Stanford in the fall of 1971 for what I expected would be a year of scholarly research as a fellow of the Center for Advanced Studies in the Behavioral Sciences, I was asked to represent a tenured English professor named Bruce Franklin, who was being fired for inciting students. Franklin, who was born in Brooklyn, had become a follower of Mao Zedong and Ho Chi Minh—and had edited a book on the writings of Stalin. Students renamed his course on Melville and Hawthorne “Mao-ville and Ho-thorne.” He was a believer in a “people’s war” against Stanford and other institutions that aided the Vietnam War. Franklin had spoken at an antiwar rally directed against the Stanford Computation Center, which was involved in war-related research. His speech included the following: “What we’re asking is for people to make that little tiny gesture to show that we’re willing to inconvenience ourselves a little bit and to begin to shut down the most obvious machinery of war, such as—and I think it is a good target—that Computation Center.” Following shouts of “Right on,” a group of listeners marched on the Computation Center and physically shut it down, causing some damage. Franklin watched from a safe distance. The police ordered the demonstrators to disperse. At this point, Franklin joined the crowd and protested the order. He walked up to the police, argued with them that the dispersal order was illegal, and urged the crowd to remain. Many did, and the police used force to implement their order. Minor injuries were sustained by some demonstrators.
Later that night a rally was held on the campus, at which Franklin gave the closing speech. In it he advocated “the methods of people’s war.” There was some dispute about whether he explained what he meant by this term. He claimed that he told the demonstrators that “people’s war meant that they should go back to the dormitories, organize people into small groups, and talk with them, or play football, or whatever, as late into the night as possible.” Whatever his intent, his speech resulted in more violence and this time several people were seriously hurt.
The next day President Richard Lyman announced that Professor Franklin would be fired from his tenured position on the charge of “substantial and manifest neglect of duty and a substantial impairment of his appropriate functions within the University community.” (Imagine a speech code using such vague and general language!)
Franklin demanded a hearing, and a faculty committee was convened. It was difficult to find seven professors who did not despise Franklin—and with good caus
e. Franklin was an unrepentant Stalinist who had no tolerance for the free speech of others. He was also believed to have been responsible for other violence on the campus. As my “fee” for representing him, he gave me a little red volume of the speeches of Lin Biao, then one of the leading theoreticians of Communist China. Shortly thereafter, Lin Biao was killed—probably assassinated—in a plane crash and discredited by the Chinese authorities. Franklin came to my home and demanded that I return the book, since he was under orders from “the Party” to have all copies destroyed. I refused and he threatened to use physical violence, if necessary, to retrieve the book. So much for the freedom of speech that he was demanding for himself!
I persuaded the local ACLU chapter to become involved in Franklin’s defense, but I, and my research assistant Joel Klein, took the lead in defending Franklin.
Word quickly spread around the Stanford campus that I had gotten the ACLU into the case. I was criticized for my intrusion into the affairs of my host university. President Lyman went on the radio to attack me:
It is a myth that all speech is constitutionally protected. No constitutional lawyer in the land—no, not even Mr. Dershowitz, the Harvard law professor come to Stanford to save us all from sin—not even Mr. Dershowitz could make such a sweeping claim.
I responded with my own statement in the Stanford Daily:
There are important civil liberties issues at stake in the Franklin firing. If Dr. Lyman wants to challenge my view of the Constitution or civil liberties—and those of the ACLU—I invite that challenge, on its merits.
Lyman rejected my invitation to debate and continued to attack me—both personally and through his surrogates—in highly personal terms. The hostility toward me and toward the ACLU spread quickly among the established faculty.
We filed a brief on behalf of the ACLU urging Stanford, which is a private university, to apply the spirit of the First Amendment to Franklin’s case. The faculty committee agreed and said they were applying First Amendment standards, but they ruled, in a divided vote, that Franklin’s speeches violated those standards. They found that he “did intentionally write and urge” students and others to “occupy the computation center illegally,” to “disobey the order to disperse,” and to “engage in conduct which would disrupt activities of the university and threaten injury to individuals and property.”
Following the Franklin firing, I gave a lecture on the implications of the case, predicting that Franklin would soon be forgotten because his message would be rejected in the free marketplace of ideas. But the committee’s decision would be long remembered as a leading precedent in the jurisprudence of universities, because of the broad definition of “incitement” employed by Stanford against a tenured faculty member who made provocative speeches to students.
I concluded by pointing an accusing finger at some of the faculty who pretended that the Franklin case raised no important civil liberties issues:
How often have I heard the absurd remark that Franklin is being fired for what he “did,” not for what he “said,” without a recognition that this quibble doesn’t hide the fact what he “did” was to make speeches. How often I have heard the statement that this case does not involve “academic freedom,” it is simply an employer firing an employee for disloyalty—as if a requirement of loyalty and academic freedom were compatible. The true test of a genuine civil libertarian is how he responds to a crisis close at hand.
Franklin moved on to Rutgers University, where he essentially disappeared from public view, though he continued to praise Stalin and other suppressors of free speech.
DELIBERATELY DISRUPTING A SPEAKER WITH WHOM ONE DISAGREES
The Bruce Franklin case involved a second asserted exception to the First Amendment: that although there is a constitutional right to heckle speakers (at least in some context), there is no right to silence a speaker by shouting him down.4
When Henry Cabot Lodge came to speak at Stanford in January 1971, he was shouted down with cries of “pig” and “war criminal” and then drowned out by continuous chanting and clapping. Eventually, the program had to be canceled. Professor Franklin participated in the shouting but denied complicity in the chanting and clapping that brought the program to an untimely end.
Our brief disagreed with Franklin’s contention that there is a “right” to silence a speaker who is deemed to be a “war criminal”:
If the Board concludes that Professor Franklin intentionally engaged in concerted activity designed to silence Ambassador Lodge—that is, to prevent him from speaking at all—then it is the Civil Liberties Union’s position that some discipline would be appropriate.
It defended, however, Franklin’s right to heckle, boo, and express substantive disagreement with the speaker or his views. If members of the audience may cheer and applaud approval, they must also have a coextensive right to demonstrate disapproval:
The rule of thumb [is] that the speaker’s entire address must be allowed to be heard, but it may be frequently interrupted, so long as he is permitted to continue a short time after each interruption. This rule does not make for the most comfortable or effective oratory, but the American Civil Liberties Union believes it to be the constitutionally required balance.
We won that aspect of the case. The Stanford committee followed the ACLU guidelines and concluded that Franklin had not tried to prevent Lodge from speaking.
Forty years later, I tried to get the Southern California branch of the ACLU to apply these same guidelines to another case involving the disruption of a speaker who had been invited by a university—this time the University of California at Irvine, a public university. But by this point, various chapters of the ACLU had become so politicized that radical politics prevailed over free speech principles.
Michael Oren—a distinguished scholar and writer, a moderate supporter of the two-state solution, and then Israel’s ambassador to the United States—was invited to speak. The Muslim Student Union set out to prevent him from delivering his talk. Here is the way Erwin Chemerinksy, dean of the law school, described what the students did:
The Muslim Student Union orchestrated a concerted effort to disrupt the speech. One student after another stood and shouted so that the ambassador could not be heard. Each student was taken away only to be replaced by another doing the same thing.5
Chemerinsky understates what happened, as anyone can see by watching a video of the event.6 This was more than a “concerted effort to disrupt the speech.” It was a concerted effort to stop it completely—to censor Oren’s right to speak and his audience’s right to hear him. There is undisputed evidence that a well-planned conspiracy was organized to prevent Oren from speaking. The efforts to disrupt succeeded; the effort to stop the speech completely ultimately failed, but only because the disruptors were arrested and removed after they shouted down the speaker.
The students were disciplined by the university for their actions, though the nature and degree of the discipline has been kept confidential. Campus sources have characterized it as “a slap on the wrist.” Since the students had to be arrested to prevent the speech from being drowned out, the district attorney, quite understandably, commenced a criminal investigation. After learning of the careful planning that went into the concerted effort to prevent Oren from speaking, the DA filed misdemeanor charges against those involved.
This decision resulted in an outcry by those who favor censorship of pro-Israel speakers. In a letter to the DA signed by many well-known anti-Israel zealots, as well as by the two leaders of the local ACLU, the incident was mendaciously described as merely a protest: “The students non-violently and verbally protested a university-invited speaker. The students left the event peacefully.”7
Then, in an effort to blame the victims, the letter pointed the finger at pro-Israel students who wanted to listen to Oren speak, claiming—falsely—that the Muslim Student Union censors “conducted themselves in less of a disruptive manner than some of the counter-protestors.”8
; The Muslim students themselves have been more honest about their intentions than the ACLU leaders. One student leader refused to acknowledge that Mr. Oren had First Amendment rights of his own by interrupting him and shouting, “Propagating murder is not an expression of free speech!” (Shades of Bruce Franklin!) Another student was caught on video telling a crowd assembled outside the event that “we pretty much shut them down.”9
The fact that radical anti-Israel zealots would support censorship of a pro-Israel speaker comes as no surprise. But the fact that the letter of support was signed by two ACLU leaders, in their capacities as ACLU officers, was shocking. (One was the president, the other the executive director of local ACLU chapters.) I have been a supporter of the ACLU for half a century and was a national board member. In addition to supporting the right of Nazis to march through Skokie, I have defended the right of the most virulent anti-Israel speakers to participate in the marketplace of ideas. The ACLU policy has always been to oppose concerted efforts to prevent speakers from delivering their remarks, as evidenced by the brief filed in its name in the Franklin case. While supporting sporadic heckling and jeering that merely demonstrates opposition to the content of the remarks, the ACLU has always condemned the kind of concerted efforts to silence an invited speaker that occurred at Irvine. In the Franklin case, the ACLU argued that if Franklin had participated in the effort to shut down the speaker, it would be appropriate to discipline him.
Taking the Stand Page 21