Randall Kennedy, an assistant professor at Harvard Law School and a board member of the Civil Liberties Union of Massachusetts, has startled people at both institutions. Kennedy has been on the law school faculty for three years. Before that he clerked for Supreme Court Justice Thurgood Marshall and for Judge J. Skelly Wright when Wright was on the D.C. Court of Appeals.
Recently, the Harvard Crimson, reporting an informal talk by Prof. Kennedy on campus, quoted him as saying that disruption of a speaker can be justified if there are those in the audience who "feel it is a stain on humanity if certain persons speak without disruption."
The president of the Civil Liberties Union of Massachusetts, Harvey Silverglate, immediately informed the Crimson that Kennedy's approval of suppressing speech under certain circumstances is "diametrically opposed" to CLUM's view that "even the most unpopular speakers must be heard." And letters to the Crimson from students and faculty wondered that this justifier of censorship had chosen a university for a home.
Kennedy claims the Crimson misrepresented his views, but two long conversations I had with him, and his own commentaries on the subject, indicate that he does indeed find the ACLU's position on free speech to be cramped and, as he puts it, "formulaic."
Currently running for reelection to the board of CLUM, Kennedy notes in his candidate statement that "while the dominant ethos within CLUM appears to be one of almost total tolerance, I am unwilling to tolerate inhumane speech activity."
Kennedy, who is himself engagingly open to debate, told me that if a South African government official were to come to this land and speak on the need to protect white minority rule "in defense of South African democracy," he would applaud those who decided to drown out the speaker.
As for committing actual violence against an "inhumane" speaker, Kennedy has said in a letter to his colleagues on the law school faculty that "I would be unable to assert categorically that violence under any circumstances would be improper and . . . I could imagine situations that would pose an agonizing dilemma as to whether resort to violence would be a legitimate response to a speaker."
When we spoke, Kennedy said that if Nazis had ever actually demonstrated in Skokie, he would have excused Jews there who rushed to get at a speaker proclaiming that Hitler was right. There are times, he added, when it is necessary to make "an existential jump, to break the taboos."
In accusing the ACLU of being "formulaic," Kennedy emphasizes that while the ACLU is "all for the First Amendment," it "only pretends it is concerned with the kind of society we have." Yet, I told the professor, those who want to change the society soon find they need the First Amendment as much as their daily bread. Nonetheless, Kennedy countered, "There are a lot of decent societies -- England, for instance -- that proscribe racist expression." He might have added Israel. But neither has a First Amendment, and both limit more speech than racist expression.
Kennedy was impressed at the intensity of the criticism he has received: "It's heartening. It shows that civil libertarians have made people extremely sensitive about the First Amendment. But it's also unthoughtful. Civil libertarians have almost been too good. They don't think in terms of what they actually believe when they hear certain kinds of speech and speakers."
I asked Kennedy whether there had been any particular sources for his approach to curbing speech. To begin with, he mentioned Herbert Marcuse, Pied Piper of many college radicals in the 1960s. Marcuse believed that American society -- including its alleged tolerance for free speech -- was essentially repressive. Taboos should be broken.
Kennedy also cited George Will as a resource, particularly, says Kennedy, for his views on the limits to speech that should have been imposed in Skokie. And there is Walter Berns, with whom Kennedy disagrees politically, but whom he cites as a fellow believer that there must be limits to certain kinds of speech.
Talking with Kennedy, I remembered a panel I was on with Marcuse in the 1960s. He was advocating student takeovers of government buildings and factories. I asked him about student takeovers of universities.
"There I must admit to being a fink," Marcuse told me. "The university is where I am." Randall Kennedy, still working out his ideas on the limits of speech, wants to spend his working life in the academy. Would he approve his students' taking over his class if they found him "inhumane"?