The First Amendment protects a citizen's right to protest. You'd think, then, that supporting the right to protest would be an important part of supporting free speech.
Yet as student protests have escalated on American campuses in the Trump era, pro-free speech pundits have increasingly framed student activism as inimical to free speech. The antipathy to student speech in the name of free speech reveals a disturbing intolerance. It also lays the groundwork for government to use appeals to free speech to prosecute dissenting viewpoints.
The most recent round of denunciations of campus protest involves a September 27th speech at William and Mary College by Virginia Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union of Virginia. Gastañaga was speaking about free speech issues when she was interrupted by Black Lives Matter protesters, who chanted loudly and prevented the speech from continuing. The protesters were standing against the ACLU's legal action on behalf of organizers of the alt-right march in Charlottesville in August, at which Heather Heyer, an anti-fascist protester at the march, was run down in the street and killed by a fascist marcher. The ACLU's decision to act on behalf of the alt-right has been controversial even within the organization.
The protesters at William and Mary chanted "ACLU, you protect Hitler too," and read a statement in which they asked "When is the free speech of the oppressed protected?" They added, "We know from personal experience that rights granted to wealthy, white, cis, male, straight bodies do not trickle down to marginalized groups." The criticism here is not that "free speech" is bad. Rather, protesters are saying that those with more power always have more freedom to speak. When the ACLU advocates for white Nazis, it isn't demonstrating balance, because free speech rights were not balanced to begin with. You can certainly believe that the protesters are wrong, but their argument is not inconsistent. It deserves engagement, not dismissal.
Gastañaga's initial reaction to the protest was, in fact, engaged and welcoming. "I'm going to talk to you about knowing your rights, and protests and demonstrations, which this illustrates very well," she said before being drowned out. (The ACLU of Virginia declined to comment further for this article.)
Arguments against protest are often not actually arguments in favor of free speech. Instead, they're arguments in favor of civil or decorous speech.
Other observers, though, have been less willing to see the protest as free speech in its own right. Robby Soave at Reason magazine declared that the protesters' position was "incoherent" and darkly suggested that "they really shouldn't get away with this." He urged the administration to "identify the perpetrators" and "make sure this never happens again." Eugene Volokh at the Washington Post co-signed Soave, under a headline labeling the protesters part of an "anti-free-speech movement." Michelle Goldberg at the New York Times claimed that "embarrassing incidents like the one at William and Mary ... suggest that parts of the left disdain the First Amendment."
Yet, contra Goldberg, the incident at William and Mary does not directly involve the First Amendment; the protesters who interrupted the speech are not deputized government agents. "We're talking about two people in the same space in the same moment who are both trying to speak, and they can't both speak at the same time in the same place," Angus Johnston, a historian of student activism at the City University of New York, tells me. Civil liberty organizations often don't have a lot to say about that situation, he adds, while individuals generally "have a moral intuition in that context which is ambiguous and complicated." Free-speech principles are relatively easy to apply when the government tries to shut down an individual's expression. But when you simply have two people talking at once, civil libertarians don't necessarily have a clear way to choose between them.
Johnston points out, for example, that if a street preacher were haranguing passersby, and a group got together to shout him or her down, most people wouldn't see that as a problem. Institutions may have rules to grant invited speakers more protection, and may choose to have security remove hecklers. "It's more of a 'being gracious to your guest' kind of an argument, being gracious to the audience, letting the audience hear what they came to hear," Johnston says. "But I'm not sure that that's a free-speech argument."
In fact, as Johnston intimates, arguments against protest are often not actually arguments in favor of free speech. Instead, they're arguments in favor of civil or decorous speech. Free speech is not, in this context, a protection from government censorship control.
Instead, free speech is presented as a vision of a particular kind of civil society, in which people take turns speaking in reasonable tones and the best argument wins by virtue of its logical integrity. "If officials are just going to stand by while students make it impossible to even have a conversation about free speech on campus, the matter is already settled: There is no free speech at William & Mary," Soave has declared. For him and like-minded observers, officials stepping in to force students to speak decorously is free speech. Students speaking without official interference is a threat to free speech.
This vision of free speech is very popular among pundits for obvious reasons. Pundits are writers; they are paid to put together (at least somewhat) decorous arguments. They are committed to the pretense that their words are read with attention by serious, unbiased listeners who can be swayed by the simple force of reasonable prose. When pundits like me speak in public, we generally do so (or hope to do so) from a podium, not from a protest march. For people who dream of declaiming to rapt auditoriums, it's unnerving to see declaimers get interrupted and shouted down. When pundits denounce student speakers, they are engaged in a kind of chattering-class solidarity. Free speech, for pundits, often is indistinguishable from a call for free speech for pundits. They are saying, in so many words, People like me should be able to talk without interruption from people like you.
Despite all the hue and cry over college protesters, there's little question that, today, the most serious threat to the First Amendment is not protesters, but rather a government that refuses to tolerate protest.
Yet, historically as today, it's clear that pundit speech is not the speech most under threat. The civil rights movement was advanced through street protest and occupying business establishments, not primarily through paid speeches on college campuses. And despite all the hue and cry over college protesters, there's little question that, today, the most serious threat to the First Amendment is not protesters, but rather a government that refuses to tolerate protest. After a mass arrest of inaugural protesters in January, prosecutors are threatening 197 of them with large fines and up to 75 years in prison. The Department of Justice, in an unprecedented move, is trying to seize 1.3 million IP addresses of people who logged onto a website to read about Inauguration organizing. This is a direct encroachment on the First Amendment, by a government that wants to silence criticism, dissent, and protest.*
In Wisconsin, the pundit-led demonization of campus protest has served as ideological cover for government restriction of protest. The University of Wisconsin Board of Regents, under pressure from lawmakers, is considering harsh restrictions on student protesting speakers. Under such restrictions, students could be expelled simply for interrupting speakers—which, as Wisconsin State Representative Chris Taylor points out, is a more draconian approach than the university's policies against sexual assault.
Ironically, this kind of leveraging of free-speech rhetoric against free speech is exactly what the protesters at William and Mary were warning about. When the ACLU decided to defend Nazis' right to march wherever they wanted, rather than in a less central venue—as the city of Charlottesville had suggested—they made it easier for violent white supremacists to commit violence. As a result, a peaceful protester was killed, effectively ending her right to free speech forever. Without careful thought, the cry of "free speech" can become just another way to protect the status quo, silencing marginalized voices in the name of giving more airtime to those who already have multiple podiums.
I don't personally approve of shutting down an ACLU speech without any effort at dialogue. And the protesters' decision to prevent students from talking to the speaker, after the speech had been canceled, seems especially counter-productive. But the solution is not to denounce and discipline students in a single-minded frenzy.
Protest is part of free speech, as Gastañaga pointed out. Student protesters feel that certain free speech proponents are not speaking for them. We could get up on another podium and declare that the students in question are deluded totalitarians who must be punished by the school or the state. Or, alternately, we could listen to them. Even if we decide they're wrong, it's worth remembering that we're supposed to extend free speech rights to everyone, including those with whom we disagree.
*Update—October 11th, 2017: This post has been updated to reflect the most recent legal status of the Inauguration protesters.