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America The Free Speech Zone

“Congress shall make no law … abridging the freedom of speech, … or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.” 

Superficially, the First Amendment’s guarantee of free speech, assembly, and petition for redress of grievances, seems straightforward and simple.  But like everything else in law, the devil is in the details.

Even in America, freedom of speech isn’t absolute.  The cliche, “you can’t yell ‘fire!’ in a crowded theater,” has been used to introduce generations of school children to the idea that despite the First Amendment, society can restrict and punish speech that harms others.  This encompasses not only panic-inciting speech, but also fighting words, libelous speech, false reports to police, and so on.  Once it is accepted that not all speech is permissible, the question becomes where to draw the line between permitted speech and prohibited speech.

The First Amendment only restrains government censorship.  It says nothing about private censorship.  Thus, the first thing you have to do is figure out whether the person or entity restricting speech is private, or can be characterized as governmental; for example, a university may have attributes of both a private and public organization, and deciding how and how much it can regulate speech on its campus may depend on whether, for example, it’s supported with public money.

Even public universities can impose reasonable restrictions on speech.  I remember, for example, getting thrown out of a class by a professor for whispering to another student while he was lecturing.  As far as I know, he could do that, because the college necessarily must be able to prevent disruptive classroom behavior in order to carry out its teaching function.  I can’t imagine a court deciding that a student has a right to carry on private conversations that disrupt an entire class.

But what happens if a group of students wants to hold an anti-war protest rally on the plaza outside, and the rally is so noisy it disrupts classroom activities in nearby buildings?  Can the university require the group to hold its rally in a distant corner of the campus, away from classrooms?  Or prohibit the rally altogether?  And if it does, is it acting in its governmental capacity as a public entity, or in a proprietary capacity as a provider of educational services?  After all, if a private business — such as a Wal-Mart store — can keep protesters off its property, why can’t an education provider do the same?  The answer to this question, of course, has to do with the university’s status as a governmental entity and perhaps also to some extent with the idea that the education it provides is a public good.

“Free speech zones” on campuses trace their origins back to the 1960s and 1970s when public university campuses were hotbeds of antiwar protest activities.  There was always an inherent conflict between the protesters seeking to exercise First Amendment rights — speech, assembly, and petition for redress of grievances — and the university authorities trying to keep their institutions functioning.  A similar conflict arose between the protesters and the police when protests spilled into public streets and crowds of protesters blocked freeways.  In that turbulent time, this conflict came to a head when the governor of Ohio sent National Guard troops to Kent State University, and the troops fired on a crowd of students who ignored orders to disperse, killing four students.  In that case, authorities argued the use of force was justified because the protest had turned into a riot, and force was necessary to restore order and protect lives and property.  The Kent State shootings remain controversial to this day.

If protests are protected by the First Amendment, but riots are not, who decides whether an assemblage is a protest or a riot?  That question itself is bound to provoke controversy and disagreement.  Obviously as a practical matter authorities — in many cases, police authorities — will make that decision but what protection does the public have against that authority being exercised arbitrarily or capriciously?

This is an inherent problem any time speech rights come into conflict with security concerns.  Security is a legitimate interest of public authorities, but during the second Bush administration we saw the abuse of security concerns to squelch dissent raised to an art form, which reached its apogee during President Bush’s “town hall” meetings on Social Security reform.  These supposedly were public meetings, held in public facilities, ostensibly to solicit public opinion on public policy affecting all Americans, from which it turned out people suspected of disagreeing with the president’s policy stance were forcibly excluded by means of physical expulsions and arrests.  The George W. Bush administration also instituted a practice of confining protesters and dissenters to “free speech zones” deliberately located out of sight and hearing of presidential motorcade routes, while allowing supporters free access to the president’s motorcade.  That’s pushing speech restrictions in the name of security pretty hard; a person who waves a sign expressing disagreement with your policies or support of the other candidate isn’t a terrorist or potential assassin just because your minions label him/her as such.   Clearly, the Busheviks went too far in trying to keep citizen protest speech outside their bubble.

Recently, many public colleges have begun dismantling their Vietnam-era “free speech zone” policies.  These are relatively peaceful times on college campuses, so it’s easy for a generation of college administrators who’ve never had to deal with protests or riots to see no need for such policies, and if getting rid of them resolves a minor controversy over campus free speech rights, they naturally follow the path of least resistance.  But that doesn’t really solve the problem.  It simply leaves a vacuum; and if a real and substantial and complicated and big free speech arises, how will they deal with it then?  Common sense argues that the best time to figure out this complicated problem is during the quiet times, when you have time to think about it and talk it over, and not in the heat of battle when you may literally have National Guard troops shooting people under your classroom windows.Roger Rabbit

 

 


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