The Senate Judiciary Committee is holding hearings this week on legal issues related to campus free speech. On Tuesday, the panel delved into incidents that took place at the University of California, Berkeley—where students have lit fires and ravaged their own campus in order to avoid hearing from right-leaning speakers like Ann Coulter and Milo Yiannopoulos.
Sen. Dianne Feinstein, who hails from California where the worst incidents have happened, seemed unable to fully grasp the idea that there is no “heckler’s veto” on speech.
“No matter how radical, offensive, biased, prejudiced, fascist the program is, you should find a way to accommodate it?” Feinstein asked those called to testify. They included several First Amendment scholars and students who had been muzzled by their own colleges for inviting “controversial” speakers.
Feinstein went on to suggest that it was nearly impossible to expect students to embrace a full, diverse spectrum of opinion, and handle their disagreements like the mature, educated adults they are.
“No matter who comes, no matter what disturbance, the university has to be prepared to handle it. It’s the problem for the university,” she went on. “You’re making the argument that a speaker that might fulminate a big problem should never be refused.”
She claimed that a university could stop a conservative speaker from taking the stage just to protect students’ “general welfare.”
“I think particularly in view of the divisions within this nation at this time which are extraordinary from my experience, I think we all have to protect the general welfare too. And I appreciate free speech but it’s another thing to agitate, it’s another thing to foment, and it’s another thing to attack.”
Constitutional scholar and law professor Eugene Volokh, was forced to explain, slowly and in terms Feinstein could understand, that it’s the government’s responsibility to protect Constitutional guarantees of free speech. A simple difference of ideas is not “fomenting” an attack—students have a choice on how to behave.
If they can’t control themselves, and serious measures are required, the problem is endemic—and it’s not the speakers’ problem.
“If we are in a position where our police departments are unable to protect free speech, whether it’s universities or otherwise, then yes, indeed, we are in a very bad position,” Volokh told Feinstein.
He went on to lecture Feinstein that First Amendment considerations should be paramount, correcting her idea that a university can step in to stop a speaker merely to protect the student body from unrest.
The potential for violence, Volokh said, “cannot be enough to justify suppression of those they tried to suppress.”