The Washington PostDemocracy Dies in Darkness

Opinion Free speech doesn’t mean hecklers get to shut down campus debate

Yale Law School on Sept. 27, 2018, in New Haven, Conn. (Yana Paskova/Getty Images)

Erwin Chemerinsky is dean of Berkeley Law and Howard Gillman is chancellor of the University of California at Irvine. They are co-chairs of the national advisory board of the University of California National Center for Free Speech and Civic Engagement.

Freedom of speech does not include a right to shout down others so they cannot be heard. Two recent incidents at law schools where protesting students sought to keep invited speakers from addressing their audiences are deeply troubling. In both cases, those defending the disruptive students have said their actions came under the constitutional protection of freedom of speech. That is wrong in terms of both the law and appropriate campus policy.

On March 1, the Federalist Society chapter at the University of California’s Hastings College of the Law attempted to hold an event titled “The Battle Over Justice Breyer’s Seat.” The program included Ilya Shapiro, a constitutional scholar who was placed on leave at Georgetown Law after posting offensive tweets in January about President Biden being likely to appoint a “lesser black woman” to the Supreme Court. Whenever Shapiro tried to speak, student protesters drowned him out with shouting, table-banging, profanity and personal insults. The disruption shut down the event.

On March 10, something similar occurred at Yale Law School. The Yale Federalist Society held a panel that featured Monica Miller of the progressive American Humanist Association and Kristen Waggoner of the Alliance Defending Freedom (ADF), a conservative nonprofit. Again, students protested and disrupted the event, in this case reportedly over the ADF’s consistent opposition to protection of rights for LGBTQ individuals. Unlike the program at Hastings, the Yale panel ultimately was able to proceed.

It is profoundly disturbing that some students assert a right to determine what messages are acceptable on a campus and try to deprive others within the community of their right to invite or listen to speakers of their choice.

If such a “heckler’s veto” is allowed, the only speech that occurs will be that which no one cares enough about to shout down. If the Hastings protesters believe that they are entitled to drown out speakers invited by the Federalist Society, then they must accept that nothing prevents Federalist Society members from drowning out speakers that they support. Before too long, no one would be able to hold any events worth attending.

College campuses should be a place where all ideas and views can be expressed. A primary goal of higher education is to empower students to critically analyze ideas across a broad spectrum of disciplines. The strengths and weaknesses of ideas are determined not by conformity to any preexisting orthodoxy, but through the process of rational argument and evidence-based reasoning. This is how better ideas gain more legitimacy and worse ideas are exposed and rebutted.

It is especially problematic when the students attempting to silence other viewpoints are lawyers in training. How are legal professionals to argue cases if they are unwilling to hear from, and learn to respond to, the opposing side of current debates?

Although the goal of inclusivity is noble and imperative, silencing speech cannot be the way to achieve it. Colleges must take affirmative steps to create inclusive environments, but this cannot come about by suppressing expression or allowing protesters to silence unpopular speakers.

Nor must students be silent in the face of speakers whom they find offensive. As administrators, we encourage students to engage in peaceful protests of speakers whom they deem objectionable and invite their own speakers in response.

In public parks, nothing stops opposing parties from shouting at each other until no one can be heard. But this is never tolerable at colleges when members of the campus community have organized events for the purpose of hearing particular points of view. Colleges and universities must be clear and emphatic that attempting to shut down such events will not be tolerated and those engaging in it face disciplinary action.