The First Amendment and “Speech” on Campus
Articles,  Blog

The First Amendment and “Speech” on Campus


Susan Poser:
All right. Good afternoon. While the panel is still chatting a little
bit, I’m going to get us started because we just have an hour. Welcome to today’s campus conversation. This is the sixth and final conversation for
this academic year. By the way, my name is Susan Poser. I’m the provost here. These conversations have given us the opportunity
to come together. I don’t think they realize their mic is live. To come together and learn about and consider
the issues of the day that are impacting our lives. Today’s panel: What’s going on and why? The First Amendment and speech on campus will
be followed next Wednesday, April 12th at noon by an open forum on the same issue also
held here at Student Center West. The question of what limits there are on free
speech on a college campus have been around for a long time and surface in different ways
and for different reasons over time. In just the one year that I have been at UIC,
these issues have arisen several times, including last March when then candidate, Donald Trump,
was scheduled to speak on our campus and more recently just a couple of weeks ago, when
anti-Semitic posters, which also implicated other groups, were found on campus. It seems then that the time is ripe here at
UIC to engage in a discussion about these issues with the goal of respecting and encouraging
the free and open exchange of ideas while maintaining the diverse and inclusive community
that UIC prides itself on. This is no small task when there is so much
to talk about and so many different views on some very difficult issues, but it is critical
that we continue to figure out how to make it work. Today we have a panel of members of the UIC
community who are going to engage in a discussion with Professor Sheldon Nahmod. Professor Nahmod is a distinguished professor of law at the Chicago-Kent School of Law at the Illinois Institute of Technology. Professor Nahmod is an expert in constitutional
law and civil rights. He has authored several books and numerous
articles and has argued cases in front of the United States Supreme Court. There is more, but I am making this short
for everybody. Our panel members are Rabbi Seth Winberg of
the Levine Hillel Center at UIC, Lori Barcliff Baptista, Director of the African American
Culture Center at UIC, Rosa Cabrera, Director of the Rafael Cintrón Ortiz Latino Cultural
Center at UIC, Megan Carney, Director of the Gender and Sexuality Center at UIC, and Professor
Nadine Naber, Director of the Arab American Culture Center at UIC. We will begin with Professor Nahmod, who will
provide us with some background about the First Amendment followed by a discussion which
I will moderate. If we have time, we will take questions at
the end. Professor Nahmod. Sheldon Nahmod:
Thank you, Provost. I appreciate it. Is the mic on? Are you all able to hear me reasonably well? I’m Sheldon Nahmod and I’ll be talking about
the First Amendment. If you want to put in these terms since I’m
speaking only for 15 minutes, I will indecently expose you to the First Amendment. Let’s start with basics. “Congress shall make no law abridging the
freedom of speech, or of the press, or of the right of the people peaceably to assemble
and to petition the government for redress of grievances.” Notice the language refers to Congress, but
Supreme Court jurisprudence has applied the First Amendment to state and local governments
as well as to the federal government, but not to private parties or private institutions. The University of Illinois Chicago, for example,
is covered by the First Amendment while my school, IIT, Chicago-Kent College of Law being
private is not. Like the Constitution in general, the First
Amendment is a product of the enlightenment, which deals with self-government on the basis
of reason, not on the basis of passion, not on the basis of religion or tradition necessarily. In order to understand some of the basics
of the First Amendment … Keep in mind, please, I’m not giving anybody legal advice. You consult a lawyer if you have specific
questions. I want to tell you briefly what the three
major theories of the First Amendment are and then get into some of the details, giving
you examples from the UIC and other campuses. Specifically the major theory or one of the
three major theories is the marketplace of ideas. Think of John Stuart Mill and his on liberty,
something similar to that, where the best test of truth is its ability to be accepted
in the marketplace. This is modeled on laissez-faire and on scientific
experimentation. Under this approach, there is no hierarchy
of speech. No kind of speech is more important than any
other kind of speech and the government’s role is one of neutrality. Stay out altogether. A second theory of the First Amendment is
tied into the Constitution, which is self-government. We need the First Amendment in order to educate
ourselves through reason and practical judgment about how to govern ourselves. Notice from a self-government theory or perspective
of free speech, there is in fact a hierarchy of speech. That is political speech would rank at the
very top and other kinds of speech might rank below that in terms of free speech value. Here too, the government’s role is one of
neutrality. Underlying both of these is what you might
characterize as the avoidance of government suppression. We don’t want the government intervening in
the marketplace of ideas and intervening in self-government. The government serves us. We do not serve the government. That’s the theoretical background of free
speech. Let’s get into some more practical considerations. First Amendment decisions are the outcome
of three factors: the what, namely the content of the speech, the how, the medium of the
speech – oral, written, internet, TV, radio – as well as the where. The forum question. Where does the speech take place? This will be particularly important in connection
with UIC, which is a public educational institution. Notice that a rock group is missing from this
list of the what and the where and the how. Free speech has costs. It has costs, as we will see. Like other constitutional rights, the First
Amendment, and this is important, is not absolute. There is no such thing as an absolute constitutional
right for individuals. Many non-lawyers don’t understand that. I’m telling you now, that’s a takeaway point. If you learn nothing else from this little
presentation, I hope you pick up on that one. Let’s talk briefly about the what because
certain kinds of speech are actually unprotected by the First Amendment. For example, threats. An attempt to intimidate by the threat of
force or violence, which silences people. That is unprotected by the First Amendment. Government can punish that, which means the
UIC could punish it as well. Obscene speech is unprotected by the First
Amendment utterly as is child pornography. Unprotected by the First Amendment. There is an aspect of free speech doctrine
involving the hostile audience. Suppose the speaker is addressing an audience
which is hostile to his or her message and tries to shout down or stop the speaker from
speaking. The Supreme Court has held, intriguingly,
that there is an affirmative duty on the part of government to protect the speaker from
the hostile audience. That government duty is discharged only when
it becomes difficult, if not impossible, to protect the speaker from the audience. Hate speech. What about that in terms of the what, the
content of speech. Hate speech is speech directed at a historically
oppressed religion or racial minority with the intent to insult or demean. It undermines social attitudes and beliefs,
isolates its targets and intends to silence them. It also traumatizes. What has Supreme Court jurisprudence said
about hate speech? Well the short answer is, and it can be made
considerably more complicated, is that the government is not allowed to regulate hate
speech as such, unlike the situation in Western Europe, which has a very different, unfortunate
historical experience from us in the United States. This is tied to the marketplace of ideas,
especially self-government. The enlightenment assumption is that people
are ultimately persuaded by reason, even though obviously emotions and passions play roles
in political decision making. Offending people, hurting people psychologically
is not a sufficient justification for the government regulation of speech. There’s also a very important free speech
consideration here. The opportunity for counter speech. No matter how vicious or nasty or unappealing
the speech is, we assume that there is room for a counter speech, which might counter
the original unfortunate hate speech. Some general principals. Government may not suppress or regulate speech
with which it disagrees. It may also not exclude certain subjects from
public discussion. We have a posture of suspicion. UIC students, for example, cannot be punished
solely because of expressing their political views. Faculty are a little more complicated because
they are employees of UIC. We can talk about that later, but they don’t
have the same free speech rights in this regard as students may have. That’s the what. Now the how. Speaking, writing, demonstrations. Traditional media include oral speech, writing,
demonstrations and the like. These are ordinarily accorded the maximum
protection, depending on where they take place and when. As we’ll see in a moment, demonstrations may
be subject to reasonable time, place, and manner restrictions and you’ll be glad to
know you probably know this already that the Supreme Court has expanded First Amendment
protection to the internet so that government attempts to regulate the internet are generally
found to violate the First Amendment. Practical takeaway from this: there is no
Constitutional right to say what you want in however, with the medium that is, you want
to say it. This applies to public university, you can’t
speak up, for example, in the middle of a science class to deliver a political message. You can’t have a sound truck on the campus
in the middle of the day with political messages and especially in the middle of the night. Finally, the where question. Remember the what, the how, the medium of
communication, and the where question. Maximum First Amendment protection is given
to speakers and what we “lawyer types” call traditional public forums such as streets
and parks. Almost as protected is free speech in designated
public forums such as public universities which are voluntarily opened up to students
and faculty for discussion of all kinds although not necessarily opened up to outsiders. Outsiders do not necessarily have First Amendment
access, you understand, to a public university; although in a public university certain places
can be designated for free speech activities. Certain places might be severely restricted. Dorms, for example, maybe the library; those
places because of where they are might possibly be regulable by government and this depends
in part on the medium. So, whether we have speech in a traditional
public forum such as streets or parks or designated ones such as public universities, permits
can be required and, as I said earlier, there may be reasonable time, place, and manner
restrictions. After all, you can’t generally hold two demonstrations
at the same time in the same place, you’ve got to have restrictions on those. There is no First Amendment right to demonstrate,
therefore wherever you want and whenever you want on the UIC campus any more that there
is a right to demonstrate where you want and when you want on streets or in parks, permits
may be appropriate. Now, as I finish up, I want to make an important
point that sometimes even we lawyers don’t get but it’s especially important for non-lawyers
to get. I’ve been talking about the legality and constitutionality
using free speech principles. I want to say something and I hope this is
one of your takeaways: just because you have a constitutional right to do something, just
because what you want to do or say is legal, it does not follow by any means that it is
moral to do so. I’ll say that again, constitutionality does
not determine morality. It does not at all. You hope there’s a connection, but there is
no necessary connection. So even if you have a constitutional right
to engage in hate speech, it does not follow that it is moral or to use another controversial
example – I hope the women forgive me for this just because it is constitutional to
decide to have an abortion in the first two trimesters of your pregnancy – it does not
follow, this is your own decision, that it is moral to do so. Constitutionality is not the same thing as
morality. There are imperatives of citizenship. Citizenship gives rise to certain norms that
you should comply with since you are a citizen and morality does the same thing. So, that’s how I finish with my preliminary
comments. I hope there are a few takeaways and I appreciate
your being here. Thank you. [applause 00:16:56] Susan Poser:
Thank you very much, Professor Nahmod. So now we’re going to have very brief comments
by each of our panelists and then after that engage in a conversation about the First Amendment
and so we will start with Megan Carney who’s the director of the Gender and Sexuality Center
at UIC. Megan Carney:
Good afternoon, everyone. Can you hear me? Thank you so much, provost, for the invitation
to be here. I wanted to say a few words about the centers
and then dive in to my specific example. The four of us up here are representatives
for the Centers of Cultural Understanding and Social Change and for those of you who
don’t know us we’re in Academic Affairs under the Office of Diversity reporting up to the
provost. We brought a lot of materials today that are
outside on the tables so I hope you’ll take a moment if you haven’t had a chance yet to
look at some of the programs we’re doing that directly relate to this and many other issues
here on campus. Each of the centers, some of us representatives
are not all here today, each have unique locations and identities but we also have a lot of overlapping
work that we do, overlapping histories and shared concerns and we do a lot of collective
programming and take a lot of direct collective action as a result of that. Each of us is going to cite different examples
of how instances around free speech and actions that we’ve taken around that have occurred
on campus in our recent history together so I want to just start us off. Professor Nahmod thank you for giving us that
outline around the what, the how, and the where and I’ll just use that structure to
share the example that I have which is an instance of anti-gay or homophobic, transphobic,
information being distributed via leaflets in the Student Center East on our campus and
this has happened on a couple of different occasions in my time here and I want to tell
you about one story in particular. I was sitting in my office on that day and
I got a phone call from a staff member who works in the copy center, in the student center,
who said “something’s getting passed out by the escalators and I’m really upset about
it and I don’t think this should be happening on our campus and I just don’t know what to
do” and as we started looking into it I think someone else had called the campus police
and they said well we can’t tell people to leave, it’s a public space so we came up with
a counter narrative or, as Professor Nahmod said counter speech, option to directly respond
to that action. So we had some cards already in our office
from a visit of a pretty homophobic, transphobic church that came to campus a couple of years
ago and they were bright yellow cards and they said something along the lines of “hate
has no home here” or “no hate at UIC” and then had some affirming messages printed
on the back and had all the information about the Gender and Sexuality Center included,
so we grabbed the cards and a bunch of us from the center went over to the Student Center
East and we just stood on the other end of the escalators and we passed these out. And we had a lot of exchanges with students
and staff and faculty who were using the escalators that day about how they felt seeing us there
because it was really confounding that that would be happening on our campus especially
because it was, we discovered, an outside organization and we were unclear about what
that arrangement was and how that was permissible and if it was. So I guess I just wanted to say some questions
that came up to me from the top are what exactly constitutes a threat is that physical, is
that this kind of microaggression, is it leafletting, at what point would that constitute a threat
and then also in terms of designated areas and outside entities at what point do we require
a permit for an outside group that comes to campus or could we say who invited you to
come to campus and does that give us grounds to determine what might be distributed. Since the 2016 election results and the ensuing
rise of hate crimes across the country the centers gathered together in the fall and
we sent out a collective statement kind of standing against rejecting racism, xenophobia,
misogyny, and other expressions of bigotry and discrimination. And we since have created a new card and I
brought a bunch of these today, they’re the mint green cards that you’ll see out on the
table. So I want you to take those with you. And it’s got a statement that sort of affirms
our values, who we are as centers for the campus, what the safe and brave spaces that
we’re continuing to cultivate for intersectional communities working together and kind of inviting
people into our process so this is one opportunity for you to take away if you experience something
like that to sort of reclaim public space with a counter narrative that can be used. And I think that’s what I want to leave with
today and pass on to Lori. Susan Poser:
Thank you, okay our next speaker will be Lori Barcliff Baptista who is the director of the
African American Cultural Center. Lori Baptista:
Thank you. So I think I’m going to focus most of my speaking
on a little bit of the how and so I’ll start with the what. So the summer of 2016 was forcefully punctuated
by a global, national, and local instances of violence. Social media, cases are [inaudible 00:22:27]
the tragedy of the Pulse nightclub shooting, and the murders of Alton Sterling, Philando
Castile, and five police officers in Dallas, Texas, over the 4th of July weekend 62 people
were shot in Chicago, four were killed and July 2016 marked the deadliest July in Chicago
in more than ten years with 65 homicides. In addition to participating in a number of
ongoing demonstrations, petitions, protests, and rallies as well as issuing public statements,
members of UIC community gathered for healing circles, dialogue, and quiet reflection to
process but also respond in various ways to some of the injustices that took place over
the summer. The African American Cultural Center responded
to the violence and also the increasingly unsettling political rhetoric of Summer 2005
by initiating a site specific participatory arts project, so this is the how. We initiated a quilting project, the quilt
is here with us today. While quilting has its roots in a number of
cultural traditions, we especially invoked its African American genealogy as part of
the Centers for Cultural Understanding and Social Change’s commitment to a program around
the theme of remedies for this year and I should say many of the seven Cultural Centers
use arts based social practice to engage around issues in addition to dialogue and some of
the other methods that we use. So, completed during the Fall of 2016, the
project convened multi-ethnic, multi-racial cohort canvas and community stake-holder to
make what what would be known as a [inaudible 00:24:09 – 00:24:10]. The quilt is titled “Remedies, Love, Unity,
and Peace” that is comprised of 39 8×10 panels and one 24×30 panel. 62 faculty, staff, students and African American
Cultural center community partners participated in quilt making workshops at the cultural
center facilitated by a Chicago fabric artist and educator [Jim Smoot? 00:24:29] African American Cultural Center
staff as well helped to coordinate the fusion of many of our campus partners to participate. And I’d say the “Remedies” quilt is really
a product of our collective efforts to create what we call the summer’s safe embrace spaces
that honor diversity of views and again represents another outlet for sharing our responses to
these things. Susan Poser:
Thank you. Thank you Lori. Our next speaker is Rabbi Seth Winberg from
UIC’s Hillel. Seth Winberg:
Thanks for the invitation to be here today. I’ve been getting asked many times in the
last couple of weeks what’s the big deal about these anti-Semitic fliers, why is this bothering
Jewish students so much, and so I hope this will help clarify. I’m the director of the Hillel on campus,
which is a non-denominational holistic Jewish student organization. The scriptural source for evil speech being
a Jewish moral and spiritual sin is “cursed be the one who harms his or her neighbor in
secret” from the book of Deuteronomy and it’s hard for me not to associate posting anti-Semitic
fliers or other forms of biased hate-speech in secret when no one is looking, it’s hard
for me not to associate that with this verse in the Torah. Perhaps the most objectionable content of
the fliers was the Holocaust inversion in one of them. The flier compares the condition of the Palestinians
in Gaza with Jews in Auschwitz, the Nazi death camp. The comparison between the Jewish state and
those who perpetrated the greatest and largest act of anti-Semitism in world history is a
bias of intentionally hurtful comparison. Holocaust inversion is not a form of legitimate
criticism of the Jewish state it’s a charge that is purposefully directed at Jews claiming
that Jews should not be seen as victims of Nazi crimes but as Nazi perpetrators. Such comparisons also start to diminish the
significance and uniqueness of the Holocaust. In short, making such comparisons is an act
of hostility toward Jews. Now, posing the question of whether a specific
act of speech is legal according to the laws of our country strikes me as an acceptably
low bar. For my students at Hillel and for all of us
here, I would encourage a more spiritual frame of reference: what speech helps build society
and respect in harmony? According to my ancient Jewish tradition,
corrupt or evil speech mortally damages three people: the one who says it, the one being
talked about, and the one who listens to it. Jewish tradition also teaches that it’s better
to throw yourself into a fiery furnace than to embarrass another person in public. Gossip is a moral and spiritual sin according
to Jewish tradition, even when the gossip is true. All of us at a university, chancellors, provosts,
professors, deans, students have to confront evil speech. University campuses made us particularly vulnerable
to evil speech because at a university, freedom of speech is cherished. It’s perhaps the only value that we can all
agree upon fervently. But spreading lies in order to hurt people
is a perversion of the ideal of free speech. Judaism aspires to a vision of society based
on careful, deliberate, constructive speech. That’s what my tradition teaches in all sorts
of speech which the United States allows are morally and spiritually wrong. That words can be used as weapons by those
who want to cause others pain. When people speak badly about other people,
they erode the integrity of the community they are trying to build together. My question for you, Professor Nahmod, is
what advice would you give to a student about how to cultivate a commitment to citizenship? Susan Poser:
Thank you Rabbi Winberg. Our next speaker is Rosa Cabrera who is the
Director of the Latino Cultural Center at UIC. Rosa Cabrera:
Thank you. Although the first time anyone [inaudible
00:28:49] matter offensive and personal [inaudible 00:28:54] consequences of hate speech on campus
are very real for students in particular. It interferes with their ability to fully
participate in community life here at UIC. My personal observation is that they feel
threatened, undermined, and reminded that the struggle to fully participate in society
is unwanted and unjust exercise. And these feelings and reactions work on a
timetable that calls for urgent interventions and since the Cultural Centers are designated
by the students as safe and brave spaces we are bonded to create these very timely responses
or counter speeches to be able to support them. Responses to hate speeches for us offer opportunities
that, I want to emphasize this, for greater inquiry into reasons for bigotry. And this can bring us into safety as people
feel more empowered and now the solution is counter speech. And this is something that we’re talking more
and more about with these incidents happening to sit down and as painful as it it to try
to figure out why is this bigotry? And I think we feel that if we have seen it
a bit, as students, find out more, do more with this inquiry. That they feel more empowered to be able to
then form counter speeches that are more informed. I can share a couple of incidences on campus
that prompted a series of urgent responses from the Latino Cultural Center and all of
the others centers. The first was in 2013 when a poster in the
LCC was vandalized with an anti-undocumented slur and you can see all of these things on
the table outside on display. Right away the students worked with us and
other cultural centers to develop a serious counter response to reaffirm their identity
as immigrant and as more important as undocumented. This was very important to them. And also that they were a member of the UIC
community. They created a display with the vandalized
poster saying this will not stop us. We presented a series of public programs on
undocumented families and relationship in the U.S. that drove in faculty to talk about
particular demographic studies. A serious out of the shadow and into the street
took place in the quad so in a sense, they felt more empowered and I need to come out
and say I am undocumented and I’m not afraid and this is who I am. We hosted an outdoor exhibit called “I define
myself undocumented and unafraid” the trouble from the Hull House to various cultural centers
outdoor spaces and the BSB with the Gender and Sexuality Center where some of them are
just posters were vandalized also so we have to be organized in order to respond to this. The second example that I wanted to talk about
is the almost Trump visit, right because it never happened which left many of the students,
staff, and faculty involved in this process with difficult questions on how a university
can be open to all opinions, popular and unpopular, while protecting the well-being of targeted
people on campus. This is key because the way that we might
define threat and the way the university defines threat is very different in the way the students
would define threat. And then this is a lot of this conversation,
defining this. After the almost Trump visit we had a very
civil [inaudible 00:33:10] with the center and we also had a circle to share afterthoughts
about what it meant to be a part of organizing this protest. And also right before the Presidential inauguration
national day the students came together and we set up an open studio using the arts as
a tool to get the students to really feel better about what was happening and also talk
of other feelings and their own stories. So these counter speeches responses have allowed
all of us to do a lot of storytelling, to stimulate discussions on free speech and
what it means to be a part of diverse campus community
and what this diversity brings to our creativity. We all know that it is necessary to maintain
human creativity when holding hands but it brings a lot of challenges, right? So how do we mediate this tool? And also it has created a lot of opportunities
to form alliance across issues and identities… They have created the sense of safety only
not only for the students, but also for contact workers on this campus, because it also affects
all of us, faculty and staff. Susan Poser:
Thank you, Rosa. And our final speaker from the panel is Professor
Nadine Naber who is the Director of the Arab American Cultural Center at USC. Nadine Naber:
Hello everybody. I’m going to start by sharing a greeting from
Mark Martel with you. He’s the director of the Asian-American Resource
and Cultural Center. He couldn’t make it today. So I’m first going to set up the context of
free speech for Arab and Muslim Americans in the context of the periods, especially
starting with the U.S. War on Terror up and after the horrific attacks of September 11
with George Bush’s statements, “Either you are with us, or you are with the terrorists.” And we all recall, I’m sure. And to think about that as a racial discourse
that associates terrorism with people who are perceived to be Arab or Muslim. So we need to take that discourse into consideration,
because over the years it’s legitimized the criminalization of people who look Arab or
Muslim. And it also helps justify hate speech, and
hate violence against them. In a recent incident this semester at UIC
a man approached a freshman Muslim woman, wearing a hijab, a student, a freshman. She was walking through the engineering passageway
on her own. He yelled at her, “You have a bomb in your
bag”, and she was all alone, and other slurs involving references to Islam. Arabs or Muslims who peacefully express viewpoints
that are critical of war on terror related policies, whether it’s anti-Muslim racism
or the US War on Iraq, are disproportionately targeted or criminalized within this environment. So basically if you’re not overly perceived
to be Arab or Muslim, but you’re also an activist and criticizing racism or war, you’re going
to be disproportionately targeted, because you have then there’s that association between,
activist and support for terrorism. Because criticizing U.S. government policies
equated with being un-American. With the aim of thinking along that logic
that you’re with us or with the terrorist. There’s nothing, no other options. So Arab and Muslims students across the U.S.
are aware that they or their parents could be targeted with hate speech in public space. Or charged with terrorism related charges
or put through trials based on secret evidence that they will never see. Or that their neighborhoods can be or are
already under surveillance or being surveilled by the FBI without any evidence of criminal
activity. So how does this matter to the First Amendment? Well these institutionalized polices led to
the War on Terror, whether it’s surveillance, use of secret evidence, et cetera. That produced that culture of fear and repression,
whereby our students and our communities can be afraid to enact their constitutionally
protected free speech rights and the fear of criminalization or of simply being seen
as un-American. Or being targeted by Islamophobic groups that
speak of Arab and Muslim individuals as potential terrorist or terrorist supporters or un-American. So it’s important to think about that level
of fear that’s community wide. And that also helps explain why there was
a strong reaction to the posters, not only because of the horrific and absolutely unacceptable
antisemitism posters promoted, but also that the posters were partly blamed on Arab and
Muslims. They were presented as the Arabs and Muslims
were the authors of these flyers, as well as Black Lives Matter movement. And so that’s taking place in an environment
where Arabs and Muslims are the scapegoat for being the bad guys. And so the idea that, of course, the posters
would need an investigation, and that already creates a sense of fear. So just because of how you respond on the
campus, we agree with the theme that the way to respond to hate speech, is more speech. And we do that through community building
and building unity across campus and building strength and visibility. And a voice for our Arab and Muslim students
in diversity efforts across campus. We support students through positive, uplifting,
cultural and artistic events that help build community, visibility and safe spaces. So the woman who experienced that hate incident,
she came to our center, and one of our staff worked with her through art therapy, and she
ended up writing a poem about her experience. And she and her poetry will be featured at
a campus event tonight called Rise Up There’s a Fire Outside. And so what we do is we bring communities
together to basically use the arts for healing and for building communities. So we’ll have an event where poets are coming
to work with a group of people to write poetry together and create messaging for campus unity
together. With themes like, “Hate has no room here.” So for Professor Nahmod, how can our discussions
of the law account for differential access to free speech? What do you think of the idea that not everyone
is equally protected under the First Amendment? Susan Poser:
Okay. Thank you Nadine. So I think as a sort of a side note to the
First Amendment, I think one thing that we have learned here today is the strength and
dedication of our cultural centers and our Hillel, and their desire to support our students
and our whole campus and all the kinds of work that they’re doing. So I want to just publicly thank them for
that. Not that the Professor needs any summary,
but I sort of picked up three themes here. One being what constitutes a threat, and how
can something really not be a threat, when the people who are subject to the speech feel
genuinely and authentically threatened. The second one is this idea of counter speech,
which I think is hard to argue with in our culture. It’s really ingrained, but as Dr. Naber pointed
out, some peoples counter speech is much more risky than other peoples. And so how do you account for that and how
do you deal with that differential? And then the third one that I heard, was how,
what Rabbi Winberg said, how do we help our students become good citizens, when the First
Amendment bar is the floor and not the ceiling? How do we teach them to become productive
people and part of community? When you can pretty much say anything you
want, most of the time. So it would be nice to have a conversation
about this, but we will let Professor Nahmod have the first word on that. Professor Nahmod:
I heard about seven or eight impossible questions. [inaudible 00:07:15] I was taking notes, so
… Susan Poser:
You might want to put the … Little closer, yep. Professor Nahmod:
Several speakers gave us good examples of calmer speech and I can only applaud those
examples. And I’ll tell them to keep on doing it. With respect to a question that somebody raised
about outside organizations. There is no necessary First Amendment right
of outside organizations to have access to a public university. But we got an interest in public university
here. It’s an urban public university and if streets
and perceptive came to light. So unless regulations or restrictions could
be could be very carefully drafted to keep outsiders out. I think that might be asking for more First
Amendment problems than it would be worth. I’m just not sure. What’s a threat? That’s an excellent question. The Supreme Court has told us there are two
aspects to true threats. One is that the speaker has to intend that
the person on the receiving end be intimidated by the personal threat of violence. Secondly on the receiving end, it must be
received that way, and a reasonable person must have interpreted or received it that
way. So somebody with particularly thin skin, would
not necessarily be able to say this is a threat. So you need both of those in order to have
a true threat. And without those the Supreme Court just held,
in a case a couple of years ago, involving the apparent threat made to the ex-wife of
some crazy guy over the internet. His name was Elonis and the Supreme Court
struck down his conviction because he didn’t supposedly intend that his ex-wife be threatened,
even if she was and probably any one of us would have been threatened or felt threatened
as well. Sometimes a threat can be conveyed just by
a physical presence. I’m relatively a short person and somebody
comes up to me who is 6’6” and calls me what? My mother was from Poland, my dad was from
Syria. You dirty Pollack or you dirty Arab or something
of that sort, in my face. That could be a threat, besides being fighting
words, which is another legal terminology. Now there is another … going to hate speech
now on my little list. There is an advantage in not prohibiting hate
speech, you know who your enemies are. That is not to be underestimated. You know who your political enemies are. Rabbi asked a terrific question. How do you cultivate a commitment to citizenship. Well I’m a first generation American and I
really love and appreciate this country. So the question is how do you develop, with
all its flaws by the way and there are many, how do you develop an attachment? Well attachment is both intellectual and emotional. You’ve got to learn American History. I’m sorry, you’ve got to learn it. I don’t know if it’s required anymore. You’ve got to learn about this country. Its ups and its downs. You’ve also got to learn, at least as a layperson
not necessarily going to law school, about the Constitution. You’ve got to know about the second World
World, during which this Country saved the world. There’s something important there. Again with all of this Country’s flaws. So it’s learning as well as figuring out what’s
happened in American History and connecting to it, there are amazing stories that are
there. The damage poster, which was an example. That can be punished, if it was a student
who did it. Maybe even if it was a non-student who did
it, because the legal category would be trespassing on personal property. You can’t commit vandalism on somebody else’s
property. So you got a little legal handle in that situation. What should the university do? University has an obligation as a university,
as well as having a moral obligation, to speak out expressly against inappropriate speech. Even if the person doesn’t protest it. You have to, and one in the same time, I would
think, support free speech values and say, regardless of those free speech values, we
think that what this speech was was reprehensible, and should not be accepted as the norm on
our campus. Now let me finish up, because we’re talking
about anti-Muslim and anti-Arab slurs. When government officials engage in these
slurs, and unfortunately our current President has not been the best example for in helping
us. When a government official engages in these
slurs it is especially troubling, because it may reflect government policy. On the one hand the government policy can
sometimes when implemented be challenged in the courts, but it also encourages bigots. And that is another adverse effect of government
officials speaking out in a bigoted way. Now I saved one of the hardest questions for
last. And that is the essential access to free speech. Does anybody here own a newspaper? No. Is anybody here a millionaire or a multimillionaire? We have to be honest. One of the flaws with the marketplace of ideas
approach, is that money buys you greater access to the marketplace and greater impact. It simply does that, however the Supreme Court
in a bunch of cases; the campaign financing cases, and the citizens united case. The Supreme Court has said, “Government should
play no role in equalizing access to the marketplace of ideas.” That’s what the Supreme Court has said. With that being kind of laissez faire approach,
to political speech. You’ve got the money in effect, you’ve got
more political speech available to you, than more of an opportunity to influence. So given that First Amendment structure, you
got to fight very hard and it’s what you said earlier, groups joining together to overcome
the speech though engaging calmer speech against the very powerful groups. The assumption of most of us, studying the
First Amendment, is it’s probably better to do that, than to get the government involved
in regulating speech. Because sometimes governments have their own
hidden agendas, and maybe not so hidden. And sometimes the government’s agenda is on
your side this year, next year the government’s agenda will be on the side opposite of yours. So you always got to be suspicious of the
government agendas, even though you have a government very objective. Susan Poser:
Thank you very much. Does anyone on the panel want to respond to
that, or ask a follow-up question? Professor Nahmod:
Have we stopped you all from [crosstalk 00:15:54]. Its’ not consistent with free speech values. Susan Poser:
Megan you want to exercise your free speech? You just look like you were … You don’t
have to. Megan:
I guess the one thing that came up to me, and I don’t want to take time away from what
other people might be thinking. But I was curious about all of the efforts
you put into crafting non-discrimination statements for our university and other protected classes
around who’s here and who’s included and all that. I wondered if there’s some overlaps between
those territories? Professor Nahmod:
Can you be a little more specific? Are you suggesting possibly as some scholars
have, although there’s a distinct priority, that equal protection equality values should
play a role in free speech jurisprudence? Is that what you’re hitting on? Or that I make too fancy on the law side. Because the Supreme Court has basically said
equality, no Constitutional guarantee of equal access necessarily. You fight with what you have. So are you saying something else? Megan:
I’m not. I going to live with [inaudible 00:16:58] Susan Poser:
The question that I heard, I think I heard, was we spend a lot of time creating anti-discrimination
policies and policies about community inclusion and we have cultural centers and so on and
so forth, we do all these things. And it seems maybe to say in an exaggerated
way, pointless, if people can still go around and say this stuff and create problems that
go against these values of anti-discrimination. Professor Nahmod:
Well why would it be pointless? Because when government enacts anti-discrimination
legislation, the government is speaking and the government is speaking in a way which
many people think is very favorable speech. And when government speaks it’s always, as
we said earlier, that sends a very powerful message. The question is would you rather have government
speak in favor of anti-discrimination or have government not speak at all and just leave
it up to the vagaries of political organizations and the like. Government speaks. Government has spoken positively in many areas
of the law. And government does have its own right to
speak. That’s why we select certain government or
certain political parties, because they speak on our behalf. Sometimes for good and sometimes not so good. Susan Poser:
And perhaps the other response is also that there’s a difference between the speech and
an act. And it certainly protects against anti-discriminatory
acts. Professor Nahmod:
Oh yes. I’m sorry. I probably should have said at the outset,
that we are talking about speech or at most about speech that’s embedded in certain kinds
of conduct. Demonstrations are obviously conduct, but
they are communicated conduct. There are expressive conduct. A punch in the mouth is not protected by the
First Amendment, even if it is effected by someone who disagrees with what the other
person is saying. That is not protected. Murder, assassination is not protected, not
at all covered by the First Amendment, it is an act. That can be prohibited separately. Regardless of the actors motives. Thank you for clearing that up. Susan Poser:
Yeah. But there’s clearly a gray area there. Right? Professor Nahmod:
Only in cases involving symbolic speech. Burning a draft card for example. Burning a flag. There is a complicated free speech test involving
symbolic speech, but we don’t really need to get into that right now. Susan Poser:
Yeah. Anybody else on the panel want to say anything
to speak, before we see if there are any questions? We’ve got about five minutes. And I will say that, I know that Rabbi Winberg
has to run out of here right at 1:00. He is dealing with a lot of student issues
today. Anybody have a question? Yeah. Go ahead. Speaker 6:
My question concerns restrictions of free speech by academic boycotts as a way of shutting
down speech? The AOP is taken position in opposition to
academic boycotts as a matter of principal. So my question to the panel is, is an academic
boycott, ever permissible? And my question to Professor Nahmod is whether
opposition to a boycott by a university, president or official might be construed as prior restraint
of free speech? Professor Nahmod:
Should I start off with the last question? University officials who speak out, for example,
against academic boycott, that goes with your first question. But that would not be a prior restraint. A prior restraint is a licensing scheme whereby
before you speak, you have to get permission from the government official to speak. So this technically is not a prior restraint
at all. As we indicated earlier, university officials
can speak out on various issues, even if it turns out to be controversial. Now about academic boycotts generally, leaving
aside questions of constitutionality, it seems to me that an academic boycott, whether it
was directed at some [inaudible 00:21:38], whether it was directed at Israel, or directed
at some Arab country. And academic boycott that singles out professors
from particular universities, particular countries is antithetical to the values of the university. It deprives students within the university
of competing view points, students may want to invite somebody to speak. And I think there is a serious political and
educational issue with that. Is there a free speech right to argue for
a boycott? Sure we have a free speech right to argue
for a boycott. Is there a free speech right to argue against
a boycott? Yes, but when you have one regardless of who
it’s directed against, a country, or if a nation, what nationality. Antithetical to university values. This may not be comfortable for some people,
but that is my firm view. And I’d like to think I need a hand for the
[inaudible 00:22:38]. I would extend it to what was done decades
ago in South Africa. As capable as the South African nation once
was. Susan Poser:
Yes. In … Speaker 8:
Thank you everyone so much for your time for being here. I just have one quick comment and then a question. My first comment is that while I understand
the illustrative impact of using abortion as a moral question, I would encourage you
to perhaps come up with different example to illustrate that point. In a room where there are people who have
to make that choice and it can be difficult. And that’s not actually what I want to talk
about… Professor Nahmod:
Good but I did, I did you know, remember something. Just because a person makes a legal argument,
this happens to me in my com law classes. One of the things I do in my com law classes
when we get to Roe v. Wade is to push back on it, legally. To push back on it, and some students say
in their evaluation, Professor Nahmod is anti-feminist. That’s outrageous, I’m trying to teach them
to think. So you’ve got to be very, very careful. I am a strong supporter of abortion. Speaker 8:
That’s fantastic. [crosstalk 00:23:58] Professor Nahmod:
That’s not … it shouldn’t matter. Whether I’m a strong supporter or not. When I told you that, just because you have
a legal right to burn a flag, just because you have the legal right to engage in an abortion,
it doesn’t necessarily follow that that is a horrible thing to do. Speaker 8:
A great example of what I want to talk about, because I wanted to sort of think about perhaps,
or maybe some people on the panel, perhaps you professor, can respond to how do you think
about protecting free speech when the mechanism that is theoretically doing that production
is also targeting students and people who are read as Muslims, Arabs, South Asians? How do we think about protection in that context? Where the state or the government that is
supposed to be protecting that speech, is also specifically targeting and surveilling
people who are trying to use that theoretical right? Professor Nahmod: Who was that question for? Speaker 8:
Anyone. Preferably you first, but [crosstalk 00:25:01]. Professor Nahmod:
Well you have to be specific about that in your question, because I’m not sure I follow
it. Are you skeptical of the government? And if that’s the case, which government? United States government? Speaker 8:
I am speaking to the specific point of [crosstalk 00:25:14] government. Professor Nahmod:
We do deal with facts on the ground and facts are incredibly important and you don’t get
to opinions unless you have facts. So I’d like to know what facts you have. Speaker 8:
In regards to surveillance? Professor Nahmod:
Yes, yes. Surveillance. Speaker 8:
Aside from the very specific programs that we know exist in terms of surveilling Arab,
South Asian and Muslims communities. Professor Nahmod:
Yeah. And there is very … and I’m not speaking
for all the litigation, but there is a lot of litigation going for one of the organizations. Such as the ACLU and the like. That are challenging these surveillance programs
in court and one of the advantages that government uses for those kinds of litigation. One of the advantages is that it brings this
stuff out into the open. So you are right we’re always fighting on
all fronts. Speaker 8:
Right. I understand that. I guess I just maybe wanted to sort of think
through on a different level or through a different perspective. Like when we talk about free speech and what
free means in that context. What does free speech mean in a context where,
the mechanism the state, the government, that is supposed to protect that speech is also
part and parcel of the mechanism that is specifically surveilling people that are perceived as Muslim
or read as South Asian or Arab. And that’s I guess the question [crosstalk
00:26:39] Professor Nahmod:
I understand you a little bit better. Keep in mind that when you talk about the
government, you’ve got to be specific. For example, when you talk about the Federal
Government, we have not only Executive Branch, we have Congress and we have the Federal Judiciary. Which is independent. And different branches do different kinds
of things. So if there is a problem from a person’s perspective
with the Executive Branch, some people have problems with that, you have possibly Congress
can provide some sort of remedy. If you’re in Congress, you hope that the Federal
Judiciary, which so far has been independent, can deal with some of those problems. Because it is not politically accountable
the way the President and Congress are. Now I remember a saying a long time ago, and
even Justice Stephens said he borrowed it from somebody else. And I know where you’re coming from, “you
cannot let the perfect be the enemy of the good”. Just because there are problems with some
of the branches of government. It does not follow that everything government
does is to be disregarded and rejected and characterized as evil. Maybe it’s a function of being around a little
longer than you, but is that responsive enough? Susan Poser:
I think that we’re just about out of time. I might leave that as a rhetorical question. I know that Megan Carney wanted to say something
quickly. Megan:
I just want to add quickly. What I also hear in that question is rather
than pursing out individual aspects of government kind of thinking. Kind of thinking about government in a broader
way. I’ve heard affirmed a lot on this panel, advocating
for community response and meeting speech with more speech. Or meeting action with more action. And some collective solidarity work that sort
of doesn’t necessarily include the government response, but thinking what do we need in
order to meet these challenges between the even order to survive under certain conditions. I guess I just wanted to say as a closing
note to say, we’re engaging, it’s a complicated conversation. I’m glad you bought it up, but I think that
the centers are each engaging with conversations like that in their own particular ways. And I wanted to invite everyone to again,
check out that table. There’s a sanctuary, everybody’s talking about
sanctuary cities, and the major needs for having them around. What makes a sanctuary? Sanctuary dinner dialog is happening at the
gender and sexuality center coming out. There’s an invite on the table. Other centers are kind of diving into exactly
these questions. How do we perceive under a given circumstances
that are so different from each of our communities and yet be in solidarity with each other and
recognize those shared issues. So I guess I just wanted to kind of bring
it back to that … Susan Poser:
Yep. Thank you Megan. Megan:
and hopefully we can extend this conversation in other formats. Susan Poser:
I think the other thing to keep in mind is that the U.S. government has a history of
this kind of conduct in various different ways. But we also have a history of overcoming it. And the only reason that we have been able
to overcome it and bring it out into the light, is because of the First Amendment. So it has a various sides to it. And that I think goes back to the history
point that Professor Nahmod made. So this was, as I said at the very beginning,
the beginning of a conversation. The very, very beginning of one. But I appreciate your being here and I hope
that you will continue this conversation, in a lot of different venues, for the rest
of the year and so forth. Thank you.

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