Are First Amendment speech protections under attack? Can colleges and universities provide learning opportunities that value all students equally and also value free expression? How can law enforcement safeguard speech while protecting public safety?
These were just some of the many topical questions considered during “The First Amendment Under Fire: A Symposium on Speech, Protest and the Role of State Actors,” held at William & Mary Law School on Feb. 2. The event was one of several recently held at W&M to explore issues around free speech.
First Amendment issues
Open to students, academics and the general public, the Feb. 2 day-long event was co-sponsored by William & Mary Law School and the American Civil Liberties Union of Virginia, and made possible with the assistance of the William & Mary student chapter of the American Constitution Society.
“I think it’s fitting that these conversations are going to occur in the halls of our country’s oldest law school … created by Thomas Jefferson and George Wythe in 1779 to engage complex, difficult issues of public policy,” said William & Mary President Taylor Reveley in introductory remarks.
Reveley added that “competing views can be advanced and debated amid civility in a law school that has as one of its missions to prepare students to participate effectively in the political life of our country.”
Civil debate and hearty question-and-answer sessions with attendees were indeed the order of the day in three panel discussions, the first of which tackled the hot-button issue of “Speech on Campus.” Moderated by event coordinator Vivian Hamilton (W&M Law School), the panel included Sigal Ben-Porath (University of Pennsylvania Graduate School of Education), Marieke Tuthill Beck-Coon (Foundation for Individual Rights in Education) and George Nwanze (W&M Law School Class of 2019).
The subject was, unsurprisingly, far from straightforward, with philosopher Ben-Porath arguing that a framework for free speech on campus should be educational and relational rather than legal. Beck-Coon, on the other hand, worried that that would lead to universities policing speech.
A second-year law student, Nwanze shared his conception of the First Amendment before beginning the study of law, then after studying the doctrine in upper-level courses in First Amendment — Speech and Education Law. Nwanze explained that he had initially shared the popular media conception that individuals have the same speech rights wherever they may happen to be, to a more complex and refined understanding of speech doctrine.
“I first realized that although I can exert my First Amendment right, it can’t be used to restrain virtually everyone; it’s largely used as an implement for restraining government action and preventing the government from taking a course of action,” he said. “It’s not a prophylactic measure that confers an affirmative right, but rather something that prevents my right from being restrained.”
The second panel, moderated by Neal Devins (W&M Law School), sought to answer the question “Can Racial Justice and Hate Speech Co-Exist?” Panelists included Susan Herman (president of the ACLU and professor of law at Brooklyn Law School), Alexander Tsesis (Loyola-Chicago School of Law), and Wornie Reed (Virginia Tech).
The final panel, moderated by Jeffrey Bellin (W&M Law School), looked at “Policing Protests,” and included Claire Gastañaga (Executive Director, ACLU of Virginia), Rachel Harmon (University of Virginia School of Law), and Timothy Zick (W&M Law School).
Susan Herman, President of the ACLU, was impressed by the range of topics and willingness to share differing views. “I thought that today’s conference was an incredibly good demonstration of freedom of speech,” she said.
Nwanze said that working alongside well-known experts was “a really humbling experience.”
“Their background and depth of knowledge is astoundingly impressive; their knowledge of the First Amendment has really been helpful and insightful in framing questions that I’ve had personally about how speech operates on campus and how it operates further in broad society,” Nwanze said. “This has been very educational, sort of the quintessential, law school experience I hope to have.”
Return to campus
After the contentious August 2017 Unite the Right rally in Charlottesville, Virginia, symposium co-organizer Claire Gastañaga found herself heartened by the symposium’s thoughtful and considered conversation about difficult, complex issues.
“There have been times in the past when it was easier to be an advocate for the First Amendment, and there are definitely changes that have taken place that make it hard to understand exactly how one assures the public safety and the public right to speak, and those are issues that we are going to be wrestling with for some time in the future,” Gastañaga said. “So wrestling with them in this kind of atmosphere is really good.”
The event marked the return to campus by Gastañaga, who was at W&M in September to speak at a student-sponsored event titled “Students and the First Amendment.” In September, student protestors prevented Gastañaga from speaking at that event, prompting a statement and campus message from Reveley.
“Silencing certain voices in order to advance the cause of others is not acceptable in our community,” Reveley said in September. “This stifles debate and prevents those who’ve come to hear a speaker, our students in particular, from asking questions, often hard questions, and from engaging in debate where the strength of ideas, not the power of shouting, is the currency.
“In my view, refusing even to hear ideas with which we disagree does nothing to sharpen our own capacity to combat them in a cogent, convincing fashion. I do not believe it is an effective way to push toward needed change. And it is very unlikely to persuade those with whom we disagree to consider the possibility that they might be mistaken. Hanna Holborn Gray, president emerita of the University of Chicago, cut to the core when she noted that 'education should not be intended to make people comfortable. It is meant to make them think. Universities should be expected to provide the conditions within which hard thought, and therefore strong disagreement, independent judgment, and the questioning of stubborn assumptions, can flourish in an environment of the greatest freedom.'”
Reveley also expressed a strong desire to have the campus take a serious look at the First Amendment, with all viewpoints welcome.
“It’s grand to have the ACLU alongside William & Mary as the motive forces for the conference. Vivian Hamilton from our Law School and Claire Guthrie Gastañaga from the Virginia ACLU have pulled the laboring oars,” Reveley said in his opening remarks on Feb. 2. “They have done so to great effect. We owe them robust thanks. Claire, it is especially wonderful to have you back in our midst. We have looked forward very much to your return to William & Mary. Speaking personally, you know how much I value your work and how eager I have been to have you back in the Colonial capital and on our campus.”
Free speech on college campuses
The event was a continuation of discussion started in January with an interactive forum on free speech on college campuses.
The Jan. 25 program, held in the Sadler Center, was co-sponsored by the Division of Student Affairs, the Office of Diversity & Inclusion and the Student Assembly. William & Mary then concluded what has been a series focused on free speech with a day-long symposium titled "The First Amendment, Protest, and the Role of State Actors." The symposium was hosted at W&M Law School and co-sponsored by William & Mary and the American Civil Liberties Union of Virginia.
Law School Dean Davison M. Douglas facilitated the discussion at the Sadler Center by presenting a series of “speech scenarios” based on actual events that have occurred on campuses around the country. He said the issue of hate speech on campuses was among the most pressing issues facing higher education.
Douglas invited audience members to consider how a public college or university would appropriately respond under current law in each scenario, and to cast their votes on outcomes for each scenario using their cell phones, tablets or laptops. Online polling software quickly tallied and displayed the results. W&M Law Professors Vivian Hamilton and Timothy Zick and Dean of Students Marjorie Thomas were on hand to share their perspectives.
Douglas posed a question at the start of the event to test the audience’s knowledge of an important legal principle: that the First Amendment explicitly imposes on only government actors, such as public colleges and universities, the obligation to protect speech.
As part of the discussion that followed, Douglas invited Zick to give a brief overview of the First Amendment’s free speech clause. Zick is the author of three books: Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge University Press, 2009), The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties (Cambridge University Press, 2014) and The Dynamic Free Speech Clause: Freedom of Speech and Its Relation to Other Constitutional Rights (forthcoming, Oxford University Press).
“The free speech clause of the First Amendment protects a broad range of communications, with just a few categorical exceptions,” Zick told the audience. Those exceptions include, for example, speech that incites violence, threats, libel, child pornography, and obscenity. The justifications for such broad protection, he said, have developed over time and have endured despite periods in our history in which speech rights were not afforded equally to all citizens. Those justifications are that free speech facilitates “free inquiry and the search for truth,” promotes self-government by “an enlightened and intelligent citizenry,” and provides a bulwark against authoritarianism, government censorship, and abuse of power.
“Today’s protection for countercultural ideas or countercultural identities is the product of a revolution that took place in the twentieth century with regard to free speech doctrine,” he said. “That revolution extended protection to speakers whose speech was at one time considered dangerous or harmful, including atheists and religious skeptics, religious speakers, civil rights protesters, anti-war protesters, advocates for same-sex marriage and advocates for abortion rights.”
In one scenario discussed, two students were expelled from a public university after they were videotaped leading a racist chant on a bus that was taking members of a fraternity to an event. The question posed to the audience was: “Assume the expelled students sued and claimed their free speech rights were violated. Who should prevail, the students or the university?” Although almost seventy percent of the audience said the university should prevail, the panelists said the students would likely prevail in court on free speech grounds, despite the deeply offensive content of their speech.
Hamilton, who teaches courses in education law and race and the law, said that any discussion of the legal protection afforded to speech would be incomplete without acknowledging the corrosive effect of hate speech on society and on the dignity of the individuals it targets. In addition to her appointment as a professor of law, Hamilton is an affiliated professor with the Gender, Sexuality, and Women’s Studies Program.
“Hate speech communicates to members of the targeted group that they are not welcome and equal members of society,” she said. "It draws on and intensifies the effects of stigmatization that members of the targeted group have previously undergone.”
Additional scenarios focusing on free speech guarantees on public campuses included admitted applicants exchanging racist and anti-Semitic communications on Facebook and students “chalking” provocative and anti-Muslim statements on university sidewalks. Panelists and the audience also discussed cases in which schools grappled with the cost of providing security for a white supremacist speaker, as well as students who shouted down or physically accosted a controversial author.
The Division of Student Affairs at William & Mary seeks to engage students in an ongoing conversation about how to talk about difficult issues as a community, Thomas said. As Dean of Students, she takes seriously any concern voiced by a student or group of students about speech that makes them feel unsafe or unwelcome on campus. She noted that professional organizations such as Student Affairs Administrators in Higher Education and the Association of Student Conduct Officers are engaged in discussions about how administrators can protect free speech rights on campus while also ensuring the safety of students and maintaining a learning environment conducive to their institutions’ mission.