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Walker is aghast that FIRE would measure something about speech above the legal baseline to rank speech climates, which he describes as “the abandonment of bedrock First Amendment tenets.” But measuring compliance with the First Amendment would offer precious little insight into the campus climate for expression. Legal obligations are not, after all, meant to tell us how to ensure a climate where ideas are respectfully considered or exchanged. They’re meant to describe the lowest level of tolerable behavior before our society ceases to function.
Walker surmises that FIRE’s position is that protesting a speaker or faculty member or student organization is bad speech. This is false.
Calling on a school to revoke someone’s invitation to speak on campus is protected speech. Creating a petition calling on the school to do so that garners hundreds if not thousands of signatures is also protected speech.
FIRE has never argued otherwise. Nor are colleges punished in the rankings for these kinds of campaigns. They are only punished when speech is actually suppressed by such efforts.
What we believe is that the more a campus environment tolerates suppression of expression — including successful organized efforts to prevent people from speaking or being heard or spontaneous efforts to disrupt an event — the weaker the overall speech culture is.
Walker’s essay also indicts the rankings for only talking about “free expression” and related ideas but not the First Amendment. Because of this deficiency, he argues, the rankings further “a misimpression that expression by private actors … can be limited or prevented in the same way government censorship can be regulated or prohibited.” We’re not sure how to respond to the argument that by never invoking the legal standard we might confuse people about the legal standard.
Again, the rankings aren’t measuring the legal standard around disruptions, they’re measuring the campus climate for being able to freely express one’s self. This is a sociological measurement, not a constitutional one. That’s because the First Amendment protects a great deal of speech, including speech that isn’t constructive, but that can intimidate others from voicing their views.
Walker seems to acknowledge that a great deal of constructive interaction happens under conditions much more civil than the undifferentiated First Amendment. He notes that nothing he says should indicate that “heckling speakers is to be praised or encouraged,” and that “civil, polite debate is of course an ideal to strive for, and should be praised.”
Yes, we agree.
We should strive for a campus climate where ideas can be tested and exchanged. In fact, we made a ranking to measure climates next to those ideals. You can’t test those ideals against legal compliance, because those are aspirations higher than legal compliance. So we don’t.
Imagine our confusion, then, when someone complains that our rankings are a poor way to measure the First Amendment.
What about Congress, then? As the essay notes, FIRE has opposed Congress using the rankings to measure compliance or legal standards. But Congress can be concerned about things beyond constitutional obligations. Congress, on our behalf, has poured unfathomable billions into the near-trillion-dollar higher-education industry. Why shouldn’t it exhibit some intellectual curiosity about whether that industry is undermining the basic civic value of hearing different viewpoints?
That’s not to detract from the very real threats against higher education posed from the current administration, which FIRE has vigorously and publicly opposed. We should be willing to complicate our understanding of topics, and it can be simultaneously true that an administration is attempting to impose a viewpoint on higher education, and that higher education has cultivated an environment of anti-speech groupthink. Indeed, Dartmouth College’s president, Sian Beilock, has even said as much, noting during a recent panel that “Two things can be true at the same time … institutions should be independent from the government telling them what to teach … but also, we have work to do as institutions to reform ourselves.”
We define a deplatforming attempt as an action taken to prevent some form of speech or expression from occurring. FIRE has always recognized that brief or passing “counterspeech” would be protected — as are “raucous protests” that do not disrupt organized events — so we are focusing on incidents where the speech is genuinely intended to disrupt the underlying speech.
In other words, the conduct we’re attempting to measure largely falls under the “heckler’s veto” doctrine (or, in the case of private colleges, would fall under it at a public institution). This doctrine holds that it violates the First Amendment for the state to participate in efforts to silence or disrupt speakers by acting against the speaker based on the hostile reactions of others. It’s also violated when state actors don’t enforce a rule that would normally protect the speaker. The heckler’s-veto doctrine arose out of the civil-rights movement, particularly attempts by angry white crowds to shut down pro-integration protests.
The essay attempts to gut the core concept of the heckler’s-veto doctrine by arguing that, because on-campus heckling contains a viewpoint (i.e., opposition to the speaker), restraining disruptive heckling is inherently viewpoint-discriminatory. If that argument held water, there would be no such doctrine, because all heckling, everywhere, has a viewpoint in opposition to the speaker. That’s the core concept of heckling.
The heckler’s-veto doctrine is viewpoint-neutral because it targets the conduct of attempting to deplatform other speakers, not the viewpoint motivating the conduct, which would be protected basically anywhere it wasn’t being disruptive. The idea of speech-as-conduct is not unknown to American law. It’s the idea that lets us prosecute attempted bribery, perjury, solicitation, and conspiracy, among other things. And the doctrine specifically protects minority viewpoints, precisely the ones most likely to be opposed by raucous crowds.
It’s clear Walker does not like the heckler’s-veto doctrine. There is no point in directing that complaint at FIRE. We did not invent it — the needs of the civil-rights movement did. Courts have continued to recognize its vitality, and I’m sure those courts would be interested in amicus briefs on the topic. But before advocating that we abandon the idea that an invited speaker should have the right to speak (and the audience to listen) without being shut down by agitators, it might be worth reflecting on how frequently viewpoints cherished in the academy today are seen as alien by the American public. If we cut down all the trees in the forest looking for the devil, where will we hide when the devil heckles us?
