Students and law professors testified before the Senate Judiciary Committee on Tuesday regarding the issue of free speech on college campuses, during times when left wing rioters in black bloc have been showing up and violently preventing right wing speakers from appearing.
During the hearing, titled “Free Speech 101: The Assault on the First Amendment on College Campuses,” California Senator Dianne Feinstein opened a line of questioning referencing a Southern Poverty Law Center paper on “the Battle for Berkeley” and the “alt-right.”
“I wanted to ask Mr. Cohen, um, this question — um — I’m holding a copy of a May 1, 2017 paper from the SPLC — the title of which is ‘The Battle for Berkeley in the Name of Freedom of Speech, the Radical Right is Circling the Ivory Tower to Ensure a Voice for the Alt-Right’ uh, could you please describe for us the thrust of this paper and any comments you care to make?” Feinstein asked.
Richard Cohen, president of the Southern Poverty Law Center, responded that at Berkeley, as protests have escalated, so has the presence of groups with violence on their minds — such as antifa. He quickly shifted from discussing the violent left to “right wing” radical groups, despite the fact that they are not aggressors, but defenders, of free speech.
“In response to them [antifa] we have had groups such as Oathkeepers, current and former law enforcement officials, who take a pledge to uphold the Constitution in their view — not as might be interpreted by the courts or their superiors. We have had other radical right groups — the Proud Boys — a new group called the ‘Alt Knights’ come to college campuses really raring for a fight. My sympathy goes out to university officials at Berkeley because they have been faced with an increasingly incendiary situation,” Cohen added.
Feinstein, a ranking member of the committee, said that one of her issues is that universities are expected to have the resources to know how to handle such clashes. She asked the panel how they believed that issue should be tackled.
Eugene Volokh, a professor at UCLA School of Law, who teaches laws surrounding free speech responded, with several interruptions from Feinstein, that he appreciates resource constraints, but added that “if we are in a position where our police departments are unable to protect free speech, whether at universities or otherwise, yes indeed we are in a very bad position.”
Feinstein interrupted again, incorrectly claiming that Volokh was making the argument that universities are responsible for handling the situation, no matter how “bad” the speaker is. The witness was actually stating that while there are campus police, there are also local city police who are also responsible for assisting with protecting speakers’ free speech — and that therefore the burden does not fall solely on university administrations.
“You’re making the argument that a speaker that might fulminate a big problem should never be refused. They ought to be able to come, whatever the problem is, it out to be handled,” Feinstein said.
Volokh responded that there could be extraordinary cases in which a speaker should be cancelled, such as if someone had “planted a bomb.”
Feinstein, appearing content with allowing free speech rights to be trampled by black bloc, stated that “to me the extraordinary circumstance is when people come in black uniforms and hit other people over the head — that’s an extraordinary circumstance.” Her comments had a tone of victim blaming, suggesting that it is always the speakers fault for violent responses to their words.
Volokh responded saying, “right, and that cannot be enough to justify suppression of those whom they came to try to suppress. It’s not just the university, it’s the government — one important job of the government is to prevent violence without suppressing free speech.”
In May, a former professor was arrested for hitting a Trump supporter on the head with a bike lock during a free speech rally the month before. Eric Clanton, formerly of Diablo Valley College, had shown up to the event in black bloc attire including most of his face being covered. His identity was unknown until the messageboard 4chan tracked him down.
“You don’t think we learned a lesson at Kent State, way back when?” Senator Dianne Feinstein asked.
Frederick Lawrence, Secretary and CEO of the Phi Beta Kappa Society, interjected that universities do not always have the resources to handle a riot, but that there always needs to be an effort to find a way to facilitate a speaker that a student group has invited.
“No matter how radical, offensive, biased, prejudiced — fascist — the program is, you should find a way to accommodate it?” Feinstein asked incredulously.
“If we are talking about the substance of a program, not the danger and credible threats, but the substance of the program — then yes — if a student group invites then they should be able to,” Lawrence responded . He added that he tells critics of his support of free speech to trust his students to ask the right questions if there is a controversial speaker.
Feinstein claimed that it isn’t always the student groups who are behind speakers, but outside groups who have an intention to “disturb and hurt.”
Lawrence argued that private universities can choose to allow only students to attend the event, but conceded that public universities face other challenges.
“I think particularly in view the divisions within this nation at this time — which are extraordinary from my experience — I think we all have to protect the general welfare too. I appreciate free speech,” Feinstein said with a laugh. “Those of us who run for office run on the basis of being able to speak freely. But, it’s another thing to agitate, it’s another thing to foment, and it’s another thing to attack.”
Lawrence responded saying that a president should take into account whether or not a speaker is coming to the campus for the purpose of agitating, saying speakers who “post images of students on screens in an attempt to intimidate or humiliate” have no place on a university campus, in reference to Milo Yiannopoulos.
Earlier in the hearing, Senator Ted Cruz took a strong and passionate stand to defend the freedom of speech.
“If universities become homogenizing institutions that are focused on inculcating and indoctrinating rather than challenging, we will lose what makes universities great,” Cruz said. “The First Amendment is about opinions that you passionately disagree with and the right of others to express them.”
Cruz also placed blame on university officials, asserting that they have become complicit in allowing heckler’s vetoes to shut down speech.
“College administrators and faculties have become complicit in functioning essentially as speech police – deciding what speech is permissible and what speech isn’t,” Cruz said. “You see violent protests … enacting effectively a heckler’s veto where violent thugs come in and say ‘this particular speaker, I disagree with what he or she has to say. And therefore, I will threaten physical violence if the speech is allowed to happen.”
The senator added that those who seek to shut down opposing views are just afraid of their own views being challenged.
“What an indictment of our university system,” Cruz stated. “If ideas are strong, if ideas are right, you don’t need to muzzle the opposition. You should welcome the opposition. When you see college faculties and administrators being complicit or active players in silencing those with opposing views, what they are saying is they are afraid.”
It is easy to defend speech that nobody is offended by, and is not what the First Amendment was made for, Cruz correctly pointed out.
“The Nazis are grotesque, and repulsive, and evil. And under our Constitution they have a right to speak, and the rest of us have a moral obligation to denounce what they say,” Cruz said. “The Ku Klux Klan are a bunch of racist, bigoted, thugs who have a right to express their views. And we have an obligation, then, to confront those views – which are weak, poisonous, and wrong – and confront them with truth.”
Cruz was getting at the fact that the best way to combat offensive free speech isn’t violence, but more speech — and civil discussion.
“We don’t need to use brute force to silence them, because truth is more powerful than force.”