Monday, May 28, 2018

Anti-university “free speech” legislation will divert education funds to demagogues and facilitate monitoring, intimidation, and harassment of academic communities (Michael Simkovic)

Part I: After demagogues hijack higher education funding and disrupt learning and research, Berkeley responds 

In the wake of disruptions surrounding the invitation to campus of provocative right wing speakers, the University of California at Berkeley recently released the Report of the Chancellor’s Commission on Free Speech. The members of the commission include the Chief of Police and the Law School Dean and constitutional law scholar Erwin Chemerinsky.[1]

The report notes that U.C. Berkeley “spent nearly $4 million—during a time of severe fiscal duress—on security costs for [disruptive speeches by far-right provocateurs in] September 2017 alone. . . . This is not sustainable [given Berkeley’s] $150+ million deficit.”

At current tuition prices, $4 million is the equivalent of more than 280 1-year full-tuition scholarships (or 70 four-year bachelor’s degrees). Given the tone and substance of the talks, it seems unlikely that California taxpayers or the Berkeley community got good value for their money. For example, that money could have been used to train engineers, scientists, and other educated professionals. The report included several sensible recommendations to try to contain costs and limit disruptions.

Unfortunately, many of these recommendations would be difficult—perhaps impossible—to implement if legislation backed by the Koch family, the Goldwater Institute, and some law professors goes into effect. (More on this in Part II below).

The report notes that a single speech by right wing culture-warrior Ben Shapiro cost U.C. Berkeley and California taxpayers $600,000 in security costs.[2]

Mr. Shapiro is known for comparing “debate” to a “bloodsport.” In “How to Debate a Leftist and Destroy Them,” Shapiro advises conservatives to “Hit first. Hit hard. Hit where it counts . . . convince [the audience] that your opposition is a liar and a hater.” Shapiro advises being even more aggressive when dealing with a liberal family member at family gatherings such as Thanksgiving. Shapiro advises conservatives to call a family member who does not share conservative political views a “jackass,” “ridiculous,” “irrational,” “buffoon,” “loser,” “fascist,” and a would-be baby-killer (for supporting abortion rights).  Shaprio’s speech at Berkeley was reportedly similarly “strong on insults . . . and light on [substance].”[3]

The Commission was even less impressed with other speakers:

“Many Commission members are skeptical of [Milo Yiannopoulos and Ann Coulter]’s commitment to anything other than the pursuit of wealth and fame through the instigation of anger, fear, and vengefulness in their hard-right constituency. Speech of this kind is hard to defend, especially in light of the acute distress it caused (and was intended to cause) to staff and students, many of whom felt threatened and targeted by the speakers and by the outside groups financing their appearances.”

The Commission concluded that excessive financial costs were imposed on U.C. Berkeley and the taxpayers of California by “very small groups of students working closely with outside organizations” as “part of a coordinated campaign to organize appearances on American campuses likely to incite a violent reaction, in order to advance a facile narrative that universities are not tolerant of conservative speech.”

This is consistent with my own findings about conservative provocateurs’ efforts on campus, although I focused on professors serving as speakers rather than the student groups that invited them.[4]

The Commission suggested that if the citizens of California are unwilling to pay higher taxes to sponsor events that enrich the likes of Milo Yiannopoulos, then U.C. Berkeley should consider capping the amount it will spend on security for speakers:[5]

“[T]he campus should not have to expend scarce resources to protect celebrity provocateurs seeking to promote their brand (and, in some cases, to cast aspersions on higher education) when so many essential needs go unfunded or underfunded.”

The report also recommends centralizing event planning, limiting disruptive events to locations where individuals who would rather focus on their studies or their work can more easily avoid being affected by them, and encouraging “constructive and thoughtful debate between passionate advocates for opposing points of view” on campus including conservatives, rather than “shock jock performance art.”

However, many of the Commission’s perfectly sensible recommendations would be outlawed by model legislation pushed by the Koch-funded Goldwater Institute and some allied law professors.[6]

 

Part II:  Anti-university “free speech” legislation will divert funds to demagogues and will facilitate monitoring, intimidation, and harassment of academic communities

The so-called “Campus Free Speech Act” prohibits universities from charging more for security for events that are likely to incite violence and that lack substance.[7] The Goldwater legislation requires universities to host any speaker, regardless of intellectual rigor or academic merit (even if quality standards are applied in a non-partisan manner), as long as a single student, student group, or faculty member has invited the speaker.[8] It denies universities control over which space is made available to which speakers.[9]  The Goldwater Legislation places burdens on public universities that its most ardent supporters would never place on businesses which own other platforms for speech such as newspapers or venues for conferences such as hotels.[10] There is a difference between protecting the academic freedom of highly-trained and carefully vetted faculty and transforming universities into dumping grounds for outside speakers of low-quality and high-cost.[11]

While universities would be denied editorial discretion, student groups could be as discriminatory or exclusionary as they please without losing any privileges.[12] Thus, a neo-Nazi student group could refuse to admit blacks, Jews, gays, Catholics, liberals, moderates, or conservatives who don’t subscribe to White Supremacy—or even those who do but refuse to march around wearing Swastikas—without losing any privileges, such as the right to bring speakers or host a rally on campus.

This is not idle theorizing—neo-Nazi groups see university campuses as fertile recruiting grounds, and have actively used the language of free-speech and conservative victimization as a recruiting tool.[13] (See also here, here, and here). The lesson of Virginia Tech, Charlottesville, and the recent mass shooting in Norway is that hate speech and anti-social behavior, not taken seriously, can turn into actual violence.

Intimidation through fear of violence on campus may be what backers of the Goldwater Legislation intend.

An author of the Goldwater legislation, James Manley, has successfully sued to prevent state universities from protecting public safety by banning deadly weapons from campus. Another leading advocate of the legislation, ULCA Law Professor Eugene Volokh, supports the presence of deadly weapons on campus and in schools,[14] opposes limits on white supremacist rallies that could lead to violence, and opposes university efforts to remove individuals who threaten violence.[15]

Under the Goldwater legislation, members of the university community who protest against speakers, or who even dare to ask pointed questions, could be subjected to severe penalties, including suspension, expulsion[16] or legal liability.[17] “Repeat offenders” (i.e., protestors, hecklers or questioners) would be punished with a minimum 1-year suspension, or an expulsion.[18] Universities would be required to scare entering freshman with these severe sanctions through mandatory training sessions.[19] (These provisions risks undermining free expression, which includes not only the rights of invited speakers, but also those of listeners to engage and question). Universities can also exclude non-violent, non-disruptive individuals who are not “invited” by a speaker’s sponsors.[20]

Members of the university community would be monitored and reported on to government officials by a politically appointed group with the Orwellian title, the “Committee on Free Expression.”[21] Political appointees would be authorized to devise other ways of controlling expression on campus to further the “purposes and polices” of the legislation.[22] Critics have pointed out that although the Goldwater legislation is facially neutral, it is structured to benefit conservatives and hurt liberals. Goldwater itself has implied as much.[23]

The Goldwater legislation would limit the definition of threats, intimidation, and harassment under university codes of conduct.[24] This narrow definition of harassment could increase incidents of violence and intimidation on campus by depriving universities of the ability to prevent danger at an early stage—an ability enjoyed by virtually all private businesses. It could also facilitate video surveillance and public humiliation of university employees for partisan gain—a tactic advocated by one of the leading supporters of the Goldwater legislation, UCLA law Professor Eugene Volokh.[25]

The Goldwater bill appears to be designed to encourage frivolous lawsuits against universities[26] and members of university communities. Plaintiffs who cannot prove any actual damages are entitled to statutory damages and attorneys’ fees and costs.[27] There is no provision for successful defendants to recover their costs and fees from plaintiffs. When private litigants are unwilling to step forward, public money could be used to fund lawsuits against universities.[28] Intentionally vague language and the threat of litigation could have a chilling effect.

There will inevitably be minor annoyances on campus when a few students (or even faculty or staff) behave inappropriately. But these incidents do not constitute a “crisis.” They should be dealt with by university communities internally, not through external mandates. One does not declare Martial law over a few mosquitos.

The Goldwater-Koch legislation is profoundly hostile to the vision of universities as special institutions—places of learning, of the pursuit of knowledge for the betterment of society, of refinement and culture. Communities that nurture and guide students under their care during their formative years and help students avoid pitfalls and predatory influences. Place where substantive ideas and information can be pursued without fear of political reprisals or financial pressures from donors. Places that help civilize the world instead of simply reflecting it.

Anyone with an affinity for this vision of universities should actively and unequivocally oppose the Goldwater legislation and related proposals to strip universities of autonomy and resources.

[1] Other members include faculty leaders, student leaders, and senior administrators.

[2] According to PBS, Mr. Shaprio’s speaking fee, paid by Young Americans for Freedom (YAF), was $15,000, plus accommodations. By absorbing $600,000 in security costs, California taxpayers paid over 97 percent of the cost of Shapiro’s talk, massively subsidizing speech by YAF’s out-of-state billionaire donors (who clearly can afford to pay for security).

[3] Although Shapiro presented some ostensibly factual claims, he did not engage with countervailing evidence. Nathan Robinson explained “he’s clearly not actually very interested in Facts at all . . . Nobody can trust him because . . . he selects only the parts of reality that please him. . . At every turn, Shapiro shows that he simply wants to make his questioners look foolish, rather than present the facts fairly. . . [Shapiro only seems smart because he] is a very confident person who speaks quickly [and] uses a few effective . . . tricks [like asking confusing questions and then interrupting before the other person can answer] . . . Ben Shapiro is lying to his audience, by telling them that he is just a person concerned with the Truth, when the only thing he actually cares about is destroying the left.”

Mr. Shaprio’s website, the Daily Wire, is the original source for a substantial amount of false news reports according to Snopes.com, FactCheck.org, and scientific experts on climate change.

[4] The Commission recommends “Counterprogramming During Disruptive Events,” as did I. The Commission noted that “no student should be evaluated more harshly or treated with less respect due to his or her political outlook,” including conservative students, as did I.

[5] A per-event cap may seem better tailored than a per semester cap to limiting events that are disproportionately expensive relative to the educational benefits they provide, with speakers or their hosts expected to make up the difference above the cap. The Commission was divided as to whether caps on spending would be desirable or constitutional.

[6] Goldwater’s anti-university legislation is supported by UCLA law professor Eugene Volokh. (A recording of the YAF event linked above is not available; for recordings from a tamer event see here and here). Professor Volokh rejects any general principle that would grant state universities independence from partisan political interference. Volokh maintains that universities and taxpayers are obligated to fund the costs of security for speakers who are likely to incite violence, even when universities and communities lack resources to provide for the basic needs of their students. Professor Volokh has been a been a leading figure in a Koch-network-funded campaign to portray universities as hostile to conservative speech, and to thereby justify greater partisan political interference with the operation of universities. Both Institute for Humane Studies—which has funded and organized several of Volokh’s talks on conservative victimization on campus—and The Reason Foundation—whose magazine hosts Volokh’s blog—are funded by the Koch family and affiliated groups such as donor-advised funds. Like Ben Shapiro and Ann Coulter, Volokh has spoken on campus at the invitation of Young Americans for Freedom (YAF), a well-funded national group that uses a network of local campus chapters to host controversial speakers across the country. (While Professor Volokh’s speeches and writings can be more substantive than those of Mr. Shapiro or Ms. Coulter, Volokh has also sought to stoke conservatives’ sense of victimization and to encourage them to “fight back” and inflict “libertarian-approved-pain” on their “enemies” through the use of video surveillance and public humiliation. Volokh sits on the advisory board of an organization similar to YAF, Students for Liberty. Professor Volokh has worked closely with Koch-affiliated groups including the Foundation for Individual Rights in Education (FIRE), the Center for Competitive Politics/Institute for Free Speech, and the Heartland Institute.

[7] Section 1(G) provides that “the Institution shall make all reasonable efforts and make available all reasonable resources to ensure the safety of invited speakers. An institution shall not charge security fees based on the content of the inviter’s speech or the content of the speech of invited speakers.”

[8] Section 1(F) provides that “the campuses of the institution are open to any speaker whom students, student groups, or members of the faculty have invited.” Section 1(E) provides that “The public areas of campuses of the institution are traditional public forums, open on the same terms to any speaker.” Section 5 sharply restricts the ability of universities to reject speakers. To do so, the university must “demonstrate . . . that the restriction is: (1) Is necessary to achieve a compelling governmental interest; (2) Is the least restrictive means of furthering that compelling governmental interest; (3) Leaves open ample other opportunities to engage in the expressive conduct; and (4) Provides for spontaneous assembly and distribution of literature.”

[9] Section 1(E) provides that “The public areas of campuses of the institution are traditional public forums, open on the same terms to any speaker.” See also Section 1(L). Section 1(C) might walk this back a little bit, although any university that tries to rely on 1(C)’s vague language would be inviting costly litigation under Section 5.

[10] Existing case law suggests that the first amendment constrains public universities. But constitutional law can evolve and mandates can change if not locked in place by statute. It is not clear that the constitution should constrain universities choice of outside speakers more than media companies or think tanks or other providers of platforms for speech or production of information. Many non-university platforms have a much larger audience and their owners have far more concentrated power than universities.

[11] Such speakers can reach a much larger audience through the Internet, TV, radio, or trade press books. Speaking on campus enables a low quality outside speaker to wrap himself in implicit—and unearned—academic credibility. Just as an appearance on campus benefits low-quality speakers, it dilutes the hosting university’s reputation for quality.

[12] Under Section 1(L), a student group would not lose any privileges if it exclude from membership or leadership provisions individuals who do not share its founders political or religious beliefs, do not “comply with [the student organizations] standards of conduct,” or do not “further the organization’s mission or purpose, as defined by the student organization.” Section 1(B) states that “it is not the proper role of the institution to shield individuals from speech . . . they find . . . deeply offensive.”

[13] As reported in the Chronicle of Higher Education, a former neo-Nazi, Christian Picciolini, explained that “universities [have] become a really good recruiting ground for [right-wing extremists] because it’s like shooting fish in a barrel. There are young people who are developing new communities. They’re figuring out who they are. They’re developing new views on life. It’s the first time away from home. There are a lot of marginalized kids on college campuses looking for something to believe in. Extremists see it as a place to be, where people are developing new ideas, and they want to be the first ones to seed those ideas.”

(His explanation is strikingly similar to language used by Johan Norberg, a leading libertarian strategist who sees access to young and impressionable people as essential to the success of a radical libertarian movement).

Picciolini continues: “[White Supremacy] has gotten political and more academic, and they’re able to get away with it on college campuses. One, they don’t look like we used to. Two, the language they use is more acceptable and can be considered a debate instead of just hate speech. So they’ve gotten good at toeing the line but not going over it. That’s publicly. In private, they’re using words like "Jew" and the N-word and calling people faggots. . . what we’re seeing now is kind of a cleaned-up, better-marketed version of what we were. Ideologically it’s the same. . . .

They [come] in looking for violence, and that allows them to use that as a victim narrative for themselves and say, ‘You see, we were out here just marching for free speech,’ which is what they always claim because it’s hard to argue with that. They use that intentionally, because they know people are so angry at them that they will attack.” More mainstream conservative groups have used similar tactics.

[14] UCLA law Professor Eugene Volokh has likewise worked with Koch-funded groups to combat safety limits on assault weapons (see also here) and supports the presence of deadly weapons in schools and on campus.

[15] Volokh filed an amicus to thwart a university form removing from campus a potentially violent male nursing student who described a classmate as a “stupid bitch,” discussed stabbing her in the chest with a pencil (“Doesnt anyone know or have heard of mechanical pencils. Im going to take this electric pencil sharpener in this class and give someone a hemopneumothorax 3 with it before to long.”), and noted there was “[n]ot enough whiskey to control [his] anger” and that he “might need some anger management.” The university maintained that discussing stabbing someone in the chest is not consistent with medical ethics. Volokh acknowledges that severe, “true threats” of violence are punishable, but seems to wants an extremely high threshold for proof of a “true threat” before authorities can act to protect potential victims.

Professor Volokh also filed an amicus brief on behalf of a student with military training who harassed a professor with numerous emails the court described as “rants . . . laced with profanity and invective,” containing “hostile, angry . . . arguably discriminatory comments. . . . about blacks, Muslims, [and] liberal[s].” The student included a threat to “kick [the Professor’s] ass” because he claimed the professor loved terrorists, was a “traitor,” and was the “lowest form of life on this planet.” The professor felt sufficiently frightened to contact the police.

[16] Section 1(H) provides that “The Board of Trustees of the state university system shall develop and adopt a policy on free expression that . . . shall include a range of disciplinary sanctions for anyone under the jurisdiction of the institution who materially and substantially interferes with the free expression of others” including “suspension” or “expulsion.”

[17] Section 5(B) provides that “persons may bring an action in a court of competent jurisdiction to enjoin any violation of this section or to recover reasonable court costs and reasonable attorney fees . . .[including]: (1) The attorney general [or](2) A person whose expressive rights are violated by a violation of this section. . . .

(C) In an action brought under subsection B of this section, if the court finds that a violation of this section occurred, the court shall award the aggrieved person injunctive relief for the violation and shall award reasonable court costs and reasonable attorney fees. The court shall also award damages of $1,000 or actual damages, whichever is higher. . . . (E) The state waives sovereign immunity and consents to suit in state and federal court for lawsuits arising out of this act. A public institution of higher education that violates this act is not immune from suit or liability for the violation.”

[18] Section (1)(J) provides that “Any student who has twice been found responsible for infringing the expressive rights of others will be suspended for a minimum of one year, or expelled.”

[19] Section 3 provides that “State institutions of higher education shall include in freshman orientation programs a section describing to all students the policies and regulations regarding free expression consistent with this act.”

[20] Section 1(G) provides that “The Institution may restrict the use of its non-public facilities to invited individuals,” apparently meaning individuals invited by a student group, an individual student, or an individual faculty member.

[21] Section 2.

[22] Section 4.

[23] Goldwater notes that versions of its proposal have already been enacted in Wisconsin—where Republicans effectively eliminated tenure protections for professors—and in North Carolina, where Republican political appointees shuttered a law school center dedicated to studying poverty (see also here) and crippled the Civil Rights Center (here and here).

To promote its legislation, the Goldwater Institute specifically paid for Google advertising tied to search keywords “Josh Blackman” and “CUNY”, a reference to a conservative speaker whose talk was delayed for a few minutes by student protestors.

[24] See Section 4(C), (D), (E), and (F). Harassment by one student of another student would only count as harassment if it were based on actual or perceived membership in a protected class. Thus, harassing students because of their political views or (in some jurisdictions, sexual orientation) would not be actionable harassment. Harassment would also have to be “so severe, pervasive, and objectively offensive that it effectively deprives the victim of access to the educational opportunities or benefits provided by the university”—a very difficult standard to establish. Universities that try to encourage decent, humane and civilized behavior could face civil liability.

Harassment of a professor or administrator would be even harder to establish. Such harassment would be limited to “statements meant by the speaker to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Thus an individual threatening violence could claim that he did not actually intend to threaten a particular individual or group even if his words or actions were perceived as threatening. An advocate of violence could also claim that he was advocating changes to the legal system that would make violent actions lawful, and therefore was not advocating unlawful violence. Disruptions to university operations could only count as harassment if they were “unlawful” (i.e., prohibited by a state or federal legislature, as opposed to university policies). Invasions of privacy or breaches of confidentiality would not constitute harassment unless it could be proved that such breaches were “unjustifiable” and “not involving a matter of public concern.” No distinction is made between private and public persons. Thus universities could not readily prevent students from recording professors or administrators without their consent or maintaining “watchlists” of professors they find politically objectionable, even if inclusion on such watchlists results in death threats against university personnel.

Universities could face substantial legal risks in efforts to protect their students and personnel from danger and abuse until after violence has occurred and it is too late.

[25] See supra note 5. Professor Volokh has filed an amicus brief supporting a conservative activist who used video surveillance to harass liberal university employees. Volokh has repeatedly advocated the use of video surveillance and public shaming, even after a court ruled that it could constitute harassment and intimidation. See also supra note 13. Professor Volokh’s briefs were filed in partnership with groups such as the Cato Institute and the Foundation for Individual Rights in Education (FIRE), which have extensive ties to the Koch family and its philanthropic network.

[26] Section 5(E) provides that “The state waives sovereign immunity and consents to suit in state and federal court for lawsuits arising out of this act. A public institution of higher education that violates this act is not immune from suit or liability for the violation.”

[27] Section 5(C) provides that “if the court finds that a violation of this section occurred, the court shall award the aggrieved person injunctive relief for the violation and shall award reasonable court costs and reasonable attorney fees. The court shall also award damages of $1,000 or actual damages, whichever is higher. . . .”

[28] Section 5(B) provides that “persons may bring an action in a court of competent jurisdiction to enjoin any violation of this section or to recover reasonable court costs and reasonable attorney fees . . .[including]: (1) The attorney general [or](2) A person whose expressive rights are violated by a violation of this section. . . .”

UPDATE 5/30/2018: Mike Hilzik at the Los Angeles Times has covered the Goldwater Legislation controversy.  

Mike Hilzik, How a right-wing group's proposed 'free speech' law aims to undermine free speech on campus, Los Angeles Times, May 30, 2018.

Related Coverage:

http://leiterlawschool.typepad.com/leiter/2018/05/anti-university-free-speech-legislation-will-divert-education-funds-to-demagogues-and-will-facilitat.html

Guest Blogger: Michael Simkovic, Law in Cyberspace, Legal Profession, Of Academic Interest, Student Advice, Television, Weblogs | Permalink