One of the more heated discussions has been how to allow free speech on campus in the face of pushback against mostly conservative speakers. The issue naturally began at UC Davis when campus officials urged Milo Yiannopoulos to cancel his January speech in light of safety concerns and protests blocking access to the venue facility.
The problem has continued with incidents at Berkeley that led to Mr. Yiannopoulos and later conservative commentator Ann Coulter to cancel their events.
The Vanguard has long been a champion of free speech, believing that the appropriate remedy for objectionable speech is vigorous debate, or in some cases denying the agitators a platform for their views by simply ignoring them.
However, other groups have seen themselves, particularly in the Trump era, as being marginalized and therefore vulnerable to hate speech. We have seen in recent months an increase in hate crime violence toward groups like the Muslims and concerns about safety arising out of those upticks.
UC Davis put together a working group on the topic comprised of faculty, staff and students.
“Our obligation to uphold First Amendment freedoms is essential in our democracy and on our campus,” UC Davis Interim Chancellor Ralph J. Hexter said. “While all expression is subject to time, place and manner restrictions, it cannot include silencing or blocking speakers, even if we disagree with what is being said. I appreciate the commitment demonstrated by the working group to gather feedback from a wide range of our campus community.”
But some in the working group apparently disagree with the plan. And others have argued that the “freedom of expression” policy itself focuses on “limiting and punishing the free speech of protesters.” They see it as an extension of the university which pepper sprayed seated protests and view this as “authoritarian crack down” that “should be fought tooth and nail.”
The report points out that there is a recurring problem which “on the UC Davis and other university campuses has been that some groups have sought to silence speech of those with whom they disagree.” They see this as adversely impacting “the First Amendment rights of speakers and those who desire to hear their speech.”
Moreover, they found, “The campus lacks a clear rule for disciplining students who disrupt the speech of others on campus. There currently is little, or no, disciplining of students who disrupt the speech of others.”
One of the big problems here, as the working group acknowledges, is that “some of the protesters at campus events are not students and are not subject to student discipline.” There they suggest “criminal activity by students and community members can be the subject of police action.”
While perhaps well-intentioned, the notion that protests and protesters would be subject to both disciplinary and criminal punishment might itself be seen as curtailing freedom of speech.
The biggest of the recommendations is: “The campus should authorize the imposition of discipline for the disruption of campus events and invited speakers.”
This is the problem: “The determination of what constitutes disruption may be fact-specific and contextual in some cases and require the exercise of official discretion, the campus should clearly delineate disruptive behavior it deems presumptively unacceptable and provide clear notice to students engaging in such behavior that their conduct warrants a disciplinary response. Consistent with privacy protections, the enforcement of anti-disruption regulations should be publicized to the campus community.”
Based on this, I see three clear problems in the implementation.
First, any policy that is heavily caveated by “fact-specific” and “contextual” is going to immediately run into problems. Look, there are clear-cut situations where the behavior is obviously unlawful, but we already have tools to deal with clearly unlawful behavior.
The grayer areas are where we should be more concerned about the policy implications – does merely have a large group of protesters and a potential fear of violence, but no actual violence that ends up shutting down a speaker, trigger this?
Moreover, there are some real enforcement problems here.
The second problem relates to the issue of non-students. The campus might be able to impose discipline for students, but certainly not for non-students. For instance, the problems that occurred at Berkeley in February had to do with Black Bloc and Antifa, non-student groups who arrived wearing black masks with the intent to disrupt and shutdown the event.
As UC Berkeley made it clear in a statement, “The violence was instigated by a group of about 150 masked agitators who came onto campus and interrupted an otherwise non-violent protest.”
The UC Davis policy would be useless in that case.
That leads us to the third problem – identification. Basically, UC Davis has taken a non-confrontational approach to protesting ever since the pepper spray incident exploded on them.
When protesters blocked the US Bank in the Memorial Union, the police did not intervene – much to the chagrin of the bank. They eventually documented crimes and turned over the case to the district attorney’s office.
Given that many people will wear masks and conceal their identity, unless UC Davis is determined to actually confront large groups of people and arrest them – this policy is difficult to implement.
Some have scoffed at the notion that UC Davis would discipline protesters – but history suggests otherwise. When the bank blocking occurred, the students involved faced not only legal action that was turned over from the university to the DA’s office but also academic action – many faced suspension or expulsion.
Some were placed on probation, which effectively ended their ability to continue protesting.
The university’s policy is unlikely to have much impact on protests – although it does have a potential chilling effect on counter-protesters if they start cracking down on them.
However, for it to have any chance of succeeding the university would have to completely change how it engages student protesters with law enforcement. Given the history of the pepper spray incident looming over them, the chances are that this ends up just a paper policy that they might use to hold over the heads of some students who get caught up in their snare net.
Bottom line, while it is understandable that student protest groups and activists will be nervous, it seems more likely than not that the policy simply is unenforceable and will not work.
—David M. Greenwald reporting