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Why the ‘Heckler’s Veto’ is Wrong and Why Universities Must Prevent its Use

As further confirmation that universities have devolved into islands of repression in a sea of freedom, some 120 Yale Law School students seriously disrupted a March 10th event. Sponsored by the Yale Federalist Society, the event featured Kristen Waggoner, lead counsel for the conservative Alliance Defending Freedom (ADF), and Monica Miller of the progressive American Humanist Association (AHA), appearing together on the panel to discuss (ironically, it turns out) free speech issues.

Yale’s LGBTQ students had already mobilized their opposition to the appearance of Waggoner, particularly because ADF, they claimed in a flyer they distributed, “is an organization designated by the SPLC [Southern Poverty Law Center] as a hate group” and that the Federalist Society’s invitation to Waggoner provided “a veneer of respectability [that] is part of what allows this group to do work that attacks the very lives of LGBTQ people in the US and globally.” Once it has been predetermined that the organization for which Waggoner is lead counsel was anti-gay, it no longer mattered what she would say at the event. The moral scolds at Yale Law School had already decided she should be canceled and forbidden from giving her opinions about anything at all.

Preventing someone with opposing views to even speak, to make his or her opinions known and heard by the campus community, means that the disruptors are so sure of their beliefs, so positive that their perception is the valid one, the only true one, that they are comfortable with suppressing the alternate beliefs and ideology of those whose speech they seek to silence. Students, even graduate law students, are certainly not omniscient nor do they know the single truths about a range of topics guest speakers bring into debates. Their experience is insufficient to make them credible arbiters of what may be said, and what must not be said, on university campuses.

They do not have the moral right or intellectual capacity to gauge what is bad speech and what is good speech.

And they exert their unearned moral and intellectual superiority to silence ideological opponents because feckless administrators have tolerated this outrageous behavior, the use of what is known as the “heckler’s veto,” for too long now and are reaping the inevitable backlash.

The heckler’s veto is an unethical tactic used to advance one’s own beliefs by defeating an ideological opponent’s argument by silencing him, instead of having to offer a compelling argument of one’s own; someone with alternate views has his speech canceled or, if it is held, shouted down, disrupted, and jeered at.

When students shout down a speaker with whom they disagree and refuse to even let that person voice their opinions—regardless of how abhorrent or aberrant the disruptors think them to be—they are acting both rudely and pretentiously, assuming that their opinions are so valid and powerful that someone with opposing ideas does not even deserve to have them aired and considered. And when law students behave in this manner, as they did in a similarly grotesque fashion recently at UC Hastings School of Law when they shouted down Georgetown’s Ilya Shapiro, one might question both their intellectual maturity and their ability to maintain suitable judicial temperament as future lawyers.

Additionally important, when a speaker like Waggoner is invited to the Yale campus, she is a guest of the entire law school, and it is neither the right nor role of a few self-selected students to censure speakers and decide—in advance—that the speaker has no right to even air his or her views. In most cases, speakers who have been shouted down and prevented from speaking are highly-educated, academically-accomplished, and appropriately credentialed individuals with many years of professional experience behind them, so their ideas are formed by far more education, accomplishment, and intellectual activity than the protesting college students themselves have, making attempts by activist students to suppress the speech of those whose intellects are superior seem not only discourteous and audacious but misguided.

Waggoner, for example, was the lead counsel for the First Amendment rights case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, which she argued before the United States Supreme Court. The law students who disrupted her speech at Yale may disagree with her position on whether a baker should be compelled to create a wedding cake for a gay couple, but her legal skills and knowledge are evident, as is the insight and perspective she brings to a debate over this current cultural issue.

The censorious Yale brown shirts, like their fellow travelers on other campuses, have created their own definitions of free speech, putting limits on it that are contrary to what universities say it is and should be, and classifying certain speech—that with which they disagree—as harmful, cruel, even “violent”—sometimes manifesting itself as “hate speech” because it might, in their minds, discomfort a member of a victimized identity group.

But the Constitution and most university speech codes do not contain those exemptions, nor should they. So-called hate speech is a political categorization not a legal one.

And the notion that an LGBTQ student, real or imaginary, somewhere may find offense if Waggoner speaks at Yale is no justification for silencing her, regardless of how unacceptable some tendentious, intolerant students may think she and her ideas are.

It is neither the responsibility nor duty of universities to foreclose certain debates because the discussion may hurt someone’s feelings somewhere. And it is certainly not the right of self-selected moral scolds to censor speech of which they disapprove and promote and allow only speech with which they agree. Such an approach violates both the letter and spirit of academic free speech precepts.

In fact, this very sentiment is defined in the concise but eloquent 2014 University of Chicago Statement on Freedom of Expression, commonly referred to as the Chicago Principles. “The ideas of different members of the University community will often and quite naturally conflict,” the statement reads, in words echoing Yale’s own version of a free speech declaration, the 1974 “Report of the Committee on Freedom of Expression at Yale,” commonly known as the Woodward Report. “But it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility . . . concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.” [Emphasis added.]

Universities, including Yale, encourage vigorous responses by students and faculty to speech with which they disagree, including courteous protests outside the venue, the use of placards, sitting in silence at the event with armbands, or issuing flyers and other material encouraging attendees to avoid the event or read alternate information. But vocal disruptions—shouting, pounding on desks, jeering, using noisemakers, or otherwise interfering with a speaking event in a way that prevents attendees to hear the speech—all of those modes of behavior are specifically prohibited. Reports describing the Yale event, however, suggested that the pounding on desks, shouting, and vigorous disruption were so excessive that faculty and students in other rooms in the same building felt and heard the noise through the walls.

Freedom of speech, contrary to the thinking of some activists, does not mean freedom to suppress the speech of another by drowning out his or her speech with yours.

“Although members of the University community are free to criticize and contest the views expressed on campus,” the Chicago Principles read, “and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe.”

Additionally, the university has a duty to ensure that any individual on campus is allowed to speak and present his or her views, and the university has an obligation to protect that right by enforcing, if necessary, cordial behavior and decorum and removing anyone who violates that expected behavior. “To this end,” the statement continues, “the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.”

In fact, Yale law professor Kate Stith, who moderated the event, can be seen in a video recording of the event struggling to read aloud Yale’s free speech policy, although the rude response from the demonstrators was that “this protest is free speech,” and her admonition was ignored.

Yale’s own Woodward Report rejected the idea “that speech can be suppressed by anyone who deems it false or offensive . . . [and] [t]hey make the majority, or any willful minority, the arbiters of truth for all. If expression may be prevented, censored or punished, because of its content or because of the motives attributed to those who promote it, then it is no longer free. It will be subordinated to other values that we believe to be of lower priority in a university.”

Students must be told during orientation that disruptions such as the type discussed here will never be tolerated, are never appropriate, and will lead to punishment of the offending students, up to and including suspension or expulsion.

Assuming a speaker is the invited guest of a registered student group, and is recognized by the university as such, all invited speakers must be treated with civility, courtesy, and deference. Attendance to an event like the Yale lecture was not mandatory, so if a guest speaker’s ideas are toxic or repulsive then a student can choose to not attend an event, but it is not the right of an individual student or group of students to decide that a speaker, because his or her ideology is in opposition to the students’, should not be allowed to speak and deserves to have his or her event shut down.

After the outrageous Yale event, DC Circuit judge Laurence Silberman suggested in an email to his fellow federal judges that the behavior of the law students involved in shutting down the invited speakers should rightly disqualify them from holding future clerkships, “that students who are identified as those willing to disrupt any such panel discussion should be noted. All federal judges,” he wrote, “should carefully consider whether any student so identified should be disqualified from potential clerkships.”

Whether that punishment is appropriate or just, the truth is that when they do become lawyers, these law students will have to hear competing arguments in a case, convince a judge and jury of their interpretation of an argument, and successfully argue for their client based on reason, facts, legal precedent, and intellectual ability.

As future lawyers, they will not be able to pound on a table and suppress the speech of others in the courtroom, including opposing counsel and a judge. They will not be able to only present their side of a case without having the other side present theirs. And the university is a place where the same decorum and procedures for promoting views, developing intellectual arguments, providing facts and research to support one’s opinions, and inspiring academic inquiry and scholarly debate is fundamental to the advancement of learning.

That is precisely why universities exist and why any attempts to suppress certain speech—because it is currently out of favor or novel or even controversial—are antithetical to what the university represents and why, either in a law school classroom or in a courtroom, unfettered free speech is paramount, as Justice Oliver Wendell Holmes, Jr. put it, even “for the thought that we hate.”

About the Author
Richard L. Cravatts, PhD, President Emeritus of Scholars for Peace in the Middle East (SPME) and a Freedom Center Journalism Fellow in Academic Free Speech, is the author of Dispatches From the Campus War Against Israel & Jews and Genocidal Liberalism: The University's Jihad Against Israel & Jews.
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