Modern Day Brownshirts Suppress Free Speech at Yale Law School

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 panel event on March 10^th. 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 mobilized their opposition to Waggoner well before she arrived on campus. They distributed a flyer proclaiming that ADF is “designated by the SPLC [Southern Poverty Law Center] as a hate group” and that the Federalist Society’s invitation to Waggoner provided ADF with “a veneer of respectability,” enabling the organization “to do work that attacks the very lives of LGBTQ people in the US and globally.” Since it had been predetermined that the organization for which Waggoner is lead counsel is anti-gay, it no longer mattered what she would say at the event. The moral scolds at Yale Law School had already decided that she should be canceled and prohibited from giving her opinions about anything at all.

The disruptors’ commitment to preventing anyone with opposing views from speaking, from making his or her opinions known and heard by the campus community, signals their belief that their perspective is the only valid and true perspective. They are so sure of their beliefs 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 alone know the truth about the topics that guest speakers come to debate. Their experience is insufficient to make them credible arbiters of what may and may 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.

These students have only been able to exert their unearned moral and intellectual superiority to silence ideological opponents because feckless administrators have tolerated their outrageous behavior. Administrators have propped up the use of the “heckler’s veto” for far too long, and now they are reaping the inevitable backlash.

The heckler’s veto is an unethical tactic used to advance one’s own beliefs by silencing an ideological opponent’s argument. Instead of offering a compelling argument of their own, hecklers attempt to cancel the speech of their opponent by shouting and jeering during any attempt to speak.

[Related: “Silencing Disfavored Speech”]

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. By their actions, they show that they believe their opinions are so valid and powerful that those who oppose them do not deserve to be heard or even 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 appropriate demeanor 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. 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 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. Their ideas are the product of far more education, accomplishment, and intellectual activity than those of the protesting college students. Attempts by activist students to suppress the speech of those whose intellects are superior thus seem not only discourteous and audacious but also misguided.

Waggoner, for example, was the lead counsel for the First Amendment 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 brownshirts, like their fellow travelers on other campuses, have created and enforced their own definitions of free speech. They have placed limits on speech that are contrary to the free speech policies established by universities, and they have classified certain speech—that with which they disagree—as harmful, cruel, and even “violent.” Any statement that could make a member of a victimized identity group feel uncomfortable is immediately decried as impermissible “hate speech.”

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. The notion that a LGBTQ student, real or imaginary, may be offended 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 the duty of universities to foreclose certain debates simply because the discussion may hurt someone’s feelings. And it is certainly not the right of self-selected moral scolds to censor speech with which they disagree 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 free speech declaration, the 1974 “Report of the Committee on Freedom of Expression at Yale,” commonly known as the Woodward Report. The Chicago statement continues: “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].

Most 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 from hearing the speech—are specifically prohibited. Reports describing the Yale event 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 it out with your own. “Although members of the University community are free to criticize and contest the views expressed on campus,” the Chicago Principles reads, “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.”

The university has a duty to ensure that any individual on campus is allowed to speak and present his or her views, and it has an obligation to protect that right by enforcing decorum and removing anyone who refuses to comply. “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.”

[Related: “How Princeton Eviscerated Its Free Speech Rule and Covered It Up”]

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. The demonstrators rudely retorted that “this protest is free speech” and ignored her admonition entirely.

Yale’s own Woodward Report rejected the idea “that speech can be suppressed by anyone who deems it false or offensive.” The report states that such a notion would “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 of free speech will never be tolerated, are never appropriate, and will lead to severe punishment, up to and including suspension or expulsion. If a speaker is the invited guest of a registered student group and is recognized by the university as such, he or she must be treated with civility, courtesy, and deference. If a guest speaker’s ideas are toxic or repulsive, then a student can choose not to attend the event. However, an individual student or group of students does not have the right to decide that a speaker should not be allowed to speak and deserves to have his or her event shut down.

After the outrageous Yale event, D.C. 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 disqualify them from holding future clerkships. “[S]tudents 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 the superiority of their own argument, and successfully argue for their client based on reason, facts, and legal precedent. As future lawyers, they will not be able to pound on a table and suppress the speech of others in the courtroom when they disagree with what they have to say. They will not be able to prevent the judge and the jury from hearing the other side of the case so that their own side can remain unchallenged.

The same decorum and procedures must be guaranteed at the university, for promoting views, developing intellectual arguments, providing facts and research to support one’s opinions, and inspiring academic inquiry and scholarly debate are 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. Whether in a law school classroom or in a courtroom, unfettered free speech is paramount—even, in the words of Justice Oliver Wendell Holmes, Jr., “for the thought that we hate.”

Image: Nick Allen, Wikimedia Commons, Public Domain