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The Heckler’s Veto: College campuses regulate free-speech

Written By | May 17, 2014

WASHINGTON, May 17, 2014 – Americans used to frequently quote Voltaire’s declaration that, “I disapprove of what you say, but I will defend to the death your right to say it.” This is no longer the case at too many of our colleges and universities.

During the current commencement season, former Secretary of State Condoleezza Rice withdrew her decision to speak at the Rutgers University graduation because of protests from students and teaching staff objecting to her role in the Iraq war.

READ ALSO: Twitter-verse supports Condoleeza Rice, condemns Rutgers intolerance

At Smith College, Christine Lagarde, chief of the International Monetary Fund, withdrew because of protests against her and the IMF’s role in lending money to poor nations.

At Haverford College, Robert Birgeneau, a former chancellor at the University of California, Berkeley, withdrew because he was criticized for the use of batons to break up a protest in 2011. Brandeis University rescinded its invitation to Ayaan Hirsi Ali, now at the American Enterprise Institute, after protests against her statements criticizing Islam.

Greg Lukianoff, president of the Foundation for Individual Rights in Education (FIRE), referred to this time of year as “disinvitation season.” What has changed is not the protests themselves, but the willingness of colleges and speakers to give in, adding that many apparently voluntary withdrawals are made at the college’s urging.

READ ALSO: Are US colleges and universities becoming free-speech-free?

What some have called the “heckler’s veto” has been an important factor limiting free speech. Nat Hentoff, long a strenuous advocate of the First Amendment, points out that, “First Amendment law is clear that everyone has the right to picket a speaker, and to go inside a hall and heckle him or her, but not to drown out the speaker, let alone rush the stage and stop the speech before it starts. That’s called the ‘heckler’s veto.'”

Now, even a hint of vocal opposition to a speaker seems to be enough to eliminate the possibility of that speaker being heard.

Last year, two respected individuals who were invited to be commencement speakers at Johns Hopkins University and Swarthmore College withdrew in the face of opposition from some vocal students.

In the case of Swarthmore, Robert Zoellick, an alumnus and former president of the World Bank, accepted and then turned down an invitation after students objected to his support of the Iraq war and his record at the World Bank.

Zoellick, an official in George W. Bush’s administration, withdrew after students started a campaign on Facebook calling him “an architect of the Iraq war and a ‘war criminal.'” In fact, while Zoellick did support the war, he had no role in planning it. He was Bush’s U.S. trade representative and later worked to resolve the conflict in Darfur as a State Department official.

He ran the World Bank from 2007 until 2012.

As the attacks on Zoellick grew, Swarthmore’s student paper, the Daily Gazette, mocked the political correctness that characterized the controversy. On April Fool’s Day, it wrote that the school “would not be offering degrees to any member of the Class of 2013 who does not plan to found a vegan coffee shop after graduation,” calling other professional choices “antithetical to Swarthmore values.”

In the case of Johns Hopkins, Dr. Ben Carson, the world-renowned Johns Hopkins neurosurgeon, withdrew as commencement speaker after controversy over his statement in opposition to gay marriage. He said he withdrew because, “My presence is likely to distract from the true celebratory nature of the day. Commencement is about the students and their successes, and it is not about me.”

Josh Wheeler, director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia, notes that, “Overall, there seems to be an increased sensitivity to things in the past we might have let roll off our backs. Nowadays, people aren’t afraid to express their objections, which isn’t a bad thing, but people are more willing to censor (speech) to remove the offending speech or language.”

Wheeler calls the phenomenon the “heckler’s veto,” the ability of a small but vocal group to limit the choices of a much larger majority. He argues that, “We shouldn’t ignore (protest) but at the same time to allow a minority to determine what we see or hear is very concerning from a free speech point of view. Too often, it’s easier to eliminate the problem than deal with the controversy.”

Many public figures, with a variety of points of view, have been treated in a similar manner. Former Republican vice presidential nominee Sarah Palin faced protests from students and controversy over her fees when she was invited to speak at California State University, Stanislaus, but she went ahead with her appearance.

There were weeks of protest by anti-abortion advocates preceding President Obama’s commencement address at Notre Dame University in 2010. In 2013, protests flared at Yeshiva University’s Cardozo School of Law after it gave its “International Advocate for Peace Award” to former President Jimmy Carter.

Some alumni called on the school’s graduates to protest Carter’s criticism of Israel.

In 2006, in violation of its own policies, New York University refused to allow a student group to show the controversial Danish cartoons of Mohammed at a public event. Even though the purpose of the event was to show and discuss the cartoons, an administrator suddenly ordered the students either not to display them or to exclude 150’off-campus guests from attending.

“NYU’s actions are inexcusable,” declared Greg Lukianoff of the Foundation for Individual Rights in Education. “The very purpose of this event is to discuss the cartoons that are at the center of a global controversy. To say that students cannot show them if they wish to engage anyone outside the NYU community is both chilling and absurd. The fact that expression might provoke a strong reaction is a reason to protect it, not an excuse to punish it.”

Lukianoff declared: “This is a classic case of the heckler’s veto. NYU is shamelessly clamping down on an event purely out of fear that people who disagree with the viewpoints expressed may disrupt it.”

Beyond the heckler’s veto, many universities have adopted speech codes to suppress speech that others find offensive. Alan Charles Kors and Harvey Silverglate, in their work, “The Shadow University,” refer to a number of cases where speech codes have been used by universities to suppress academic freedom, as well as freedom of speech.

READ ALSO: Are US colleges and universities becoming free-speech-free?

In one case they describe, the so-called “water buffalo” incident at the University of Pennsylvania, a freshman faced expulsion when he called Aftican-American sorority members who were making substantial amounts of noise and disturbing his sleep during the middle of the night “water buffalo” (the charged student claimed not to intend discrimination, as the individual in question spoke the modern Hebrew language and the term “water buffalo” or “behema” in modern Hebrew, is slang for a rude or disturbing person. Moreover, water buffalo are native to Asia rather than Africa).

Some saw the statement as racist while others simply saw it as a general insult.

The college eventually dropped the charge, amid national criticism.

Texas Tech adopted a speech code which prohibited “insults,” “ridicule,” and “personal attacks” and restricted free speech to a 20-foot diameter gazebo referred to as a “Free Speech Zone.”

In September 2012, Christopher Newport University in Virginia forbade students to protest an appearance by Rep. Paul Ryan, the Republican vice presidential candidate. Students must apply 10 days in advance to demonstrate in the college’s tiny “free speech zone” and Ryan’s visit was announced on a Sunday, two days before his Tuesday visit.

In a study of 392 campus speech codes, FIRE found 65 per cent of colleges had policies “that in our view violated the Constitution’s guarantee of free speech.”

Incoming Harvard freshmen were pressured by campus officials to sign an oath promising to act with “civility” and “inclusiveness” and affirming that “kindness holds a place on par with intellectual attainment.”

Harry R. Lewis, a computer science professor and former dean of Harvard College said: “For Harvard to ‘invite’ people to pledge themselves to kindness is unwise, and sets a terrible precedent. It is a promise to control one’s thoughts.”

In 2009, Yale banned students from making t-shirts with an F. Scott Fitzgerald quotation: “I think of Harvard men as sissies,” from his 1920 novel “This Side of Paradise” to mock Harvard at their annual football game.

READ ALSO: Harvard student calls for an end to free speech

The t-shirt was blocked after some gay and lesbian students argued that “sissies” was a homophobic slur.

“What purports to be humor by targeting a group through slurs is not acceptable,” said Mary Miller, a professor of art history and the dean of Yale College.

Recently, two gay activists at George Washington University demanded that the Rev. Gregory Shaffer, a Catholic chaplain, be fired because he supports his church’s teachings about homosexuality and same-sex marriage.

A study by the American Association of Colleges and Universities of 24,000 college students and 9,000 faculty and staff members found that only 35.6 per cent of the students and only 18.5 per cent of the faculty and staff strongly agreed that it was “safe to hold unpopular positions on campus.”

With speech codes and the heckler’s veto, the First Amendment seems to be increasingly endangered on the nation’s campuses. Voltaire would weep.

Allan C. Brownfeld

Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.