Free Speech On Campus

>> Jane Bambauer: Welcome to free speech unmuted, I'm Jane Bambauer Bruckner eminent scholar and professor of law at the University of Florida.

>> Eugene Volokh: And I'm Eugene Volokh, I'm finishing up as a law professor at UCLA Law School after 30 years and moving to the Hoover Institution as senior fellow starting May 11.

 

>> Jane Bambauer: Very soon.

>> Eugene Volokh: Very soon, it's a change, but I'm looking forward to it.

>> Jane Bambauer: Well, one way in which there's a change is that you're moving from a public university to a private one. That might wind up being relevant to the conversation we're gonna have today cuz we're going to tackle campus free speech issues.

As everyone knows, probably at this point, there are lots of student protests happening across the country at both private and public universities. And the Columbia University might be the epicenter at the moment, thanks to a recent congressional hearing, another congressional hearing with a university president. This time, Columbia's president was in the hot seat.

And also in the last month or so, there was an incident at University of Berkeley involving the law school dean, Erwin Chemerinsky. So I thought maybe, Eugene, how about if we describe what happened to Dean Chemerinsky and then maybe you can lay out how student speech rules work.

 

>> Eugene Volokh: Sure. So Dean Chemerinsky is the dean at a public university law school, he was having dinner at his house for students, graduating students at the law school. And some students showed up and took out a microphone and started orating in his backyard about their position on the Palestinian conference.

 

>> Speaker 3: Please leave if you don't wanna be here, leave my house.

>> Eugene Volokh: And he and his wife, who's also a professor at Berkeley, told them to stop and they wouldn't, and then the wife tried to take away the microphone, and eventually the students left. And you hear some people talking about this as a question of, well, was this really a fully private home because it was owned by the dean and his wife?

Or was it kind of partly public because the dinner was funded by the law school? I think that's actually the wrong framing, and let me briefly explain the background, and then I think we can see why. So here's the background legal principle for public universities we're gonna get shortly to private universities, which are different but similar.

So at a public university, because the First Amendment applies to public universities, students generally can't be disciplined for the content or the viewpoint of their speech. So if somebody, for example, hands out allegedly anti-Semitic leaflets or racist leaflets or anti-government leaflets, they can't be punished for what they are saying.

Generally speaking, there are some exceptions, just like there are outside the university for things like true threats of illegal conduct. But by and large, at least outside the classroom and classroom assignments, a separate matter. Generally speaking, the content and the viewpoint of student speech cannot be restricted any more than it can be out on the street.

 

>> Jane Bambauer: And actually, maybe before we get to the actual dinner party, before the dinner party, some of the students who wound up demonstrating at Dean Chemerinsky's house had already put up some flyers around the building. And maybe this is a good illustration of exactly the point you're just making, Eugene, because the flyers had a sort of comic version illustration of Dean Chemerinsky.

But it looked like he was, he looked like he had a bloody fork and knife and blood around his mouth. And it urged, it said zionist chem, while Gaza starves. So suggesting that people should boycott the well, I don't know that people should pressure the university into doing something defunding or de investing from Israel and etc.

And so these flyers were probably quite repugnant, repulsive to the dean himself and many other students, but those flyers got left up, right?

>> Eugene Volokh: Right, because they are protected by the First Amendment, at least with regard to their content. Now, of course, if they were hosted and building walls that were not open to flyers, then they could be taken down because you can't post things in that part of the wall.

But if they were posted on, say, some student organization's bulletin board, with that organization's permission, that would be protected speech, generally speaking. A second point is that students do have the right at public universities also to leaflet, talk to people, even hold demonstrations in public spaces. Not inside the building, not in the lobby of the law school, let's say, but in public spaces, most universities have these kinds of odds where that kind of speech is protected.

So even content neutral restrictions, like no leafletting, is a totally neutral restriction, but that would be First Amendment violation, generally speaking. But speech is subject to content neutral time, place, and manner restrictions, especially as to large or loud demonstrations. So no, people don't have a right to take out bullhorns in the quad where other people might be studying or taking exams or whatever else nearby.

When there's a content neutral rule that says no sound amplification, no sound amplification except during lunchtime with a permit or some such. Likewise, if you're gonna have a large demonstration, there may in fact be content neutral permit requirements that you have to get a permit before that. And there could be rules like you can't sleep there, you can't put up tents there overnight because it's a multipurpose space, it's a shared space.

You can't just sort of take it for your own exclusive purposes for weeks on end. Indeed, even in public parks, which are long recognized as traditional public forums, the Supreme Court has said you could have a restriction, content neutral restriction, on camping in public parks. And sleeping overnight in public parks.

So that's the general framework that applies to at least these outdoor spaces. But one of these to keep in mind also is that when you get outside the outdoor spaces to kind of indoor. Again, as I said, the lobby of the law school, or maybe some place in the law school, imagine there was a dinner for students or for alumni in the law school, indubitably government owned property.

Still, people couldn't get up and take out a microphone and start talking in the middle of that, just like they can get up in the library and start talking or start demonstrating.

>> Jane Bambauer: Or get up in the middle of class and start talking and demonstrating

>> Eugene Volokh: Right, so content-based and viewpoint-based restrictions on speech because it's offensive or because it expresses certain viewpoints.

That is generally impermissible, although in the classroom, actually it's more complicated than that. But when you're talking about just rules that say when there is dinner, you can say all sorts of things to your tablemates about dinner and not get kicked out and not get. At least in a public place, public law school organized dinner and not get disciplined for it, but you cant get up and start orating when other people are just having their conversations.

That is a permissible restriction, whether it is at the dean's house or at a dean run party at the law school.

>> Jane Bambauer: Right, so I take it that the distinction between it being at the dean's house and being as opposed to, which is private property, as opposed to in some internal space within the law school.

Is a distinction that doesn't really make a difference, because for those who understand the forum analysis, as they call it. Who understand the First Amendment implications about whether the public grounds are a traditional public forum or whether it's a non public forum, even though it's government owned. These types of rules, the rules for non public forums would basically apply to privately owned forums as well.

 

>> Eugene Volokh: So that's absolutely right. And, Gene, you correctly identify, of course, the legal doctrine. Although now that we're getting into legalese, we need to chart out the legalese a little bit more. So, when we're talking about government property, like something at a public university, there are basically five categories that the court has identified.

One is traditional public forum places like a park or a sidewalk outside of the university. Just city parks, city sidewalks, those really are open traditionally for public speech. Even their content neutral restrictions on size of a demonstration, loudness of a demonstration, timing are permissible, but their speech is sort of maximally protected.

A second category is so called designated public forum. And some universities say, even though our campus, our quads, aren't exactly city parks, they're part of the university. We're gonna designate them as a place for everybody to speak, not just students, but the public as a whole. Texas actually has a state statute that basically ends up designating public spaces, public quads, that is to say, at universities, as public forums.

Third categories are limited public forum, which is something that's open but for a limited set of topics or a limited set of speakers. So, for example, universities often open up classrooms outside of class hours for student groups to meet, but it's limited because it's only for student groups.

If an outside group wants to use it, say, no, this is for students. And likewise, you can imagine content based, but the endpoint neutral restrictions that might be permissible. So, for example, law school could open things up for student groups, but only for law related events. Let's say the fourth category is so called non public forum.

That is government property, where people are allowed to come, but not for purposes of speaking. So one example is the lobby of the law school. Yeah, people, especially students, are allowed to come there, but it's not set up for purposes of public speech. Likewise, if you've got a dinner on university property in some dining hall or some such, people are allowed to go there to dine.

And yes, incidentally, they are actually gonna speak to friends over dinner, because that's what one does. But that doesn't mean that it's open for demonstrations or anything like that. And then the last category is sometimes called not a forum at all. Those are places that the government uses to speak.

And there the government has very broad authority. So generally speaking, in the non public forum and in the limited public forum, the government can impose considerable restrictions on speech so long as they're reasonable and viewpoint neutral. And a rule that says, look, you can't again, get up and start orating to people who are sitting around having dinner, regardless of what your topic is.

Pro Israel, Anti Israel, unrelated to Israel. That is a reasonable, viewport neutral rule. It would be permissible even on government property and certainly on private property, even if there's a law school function happening there.

>> Jane Bambauer: Yeah, I think, luckily, the forum analysis doesn't require us to delve into this or, it won't really matter what we decide.

But the fact that the invitation to dine in his home was open to any and every third year law student maybe would have made this a more difficult case. I don't know, I guess it's an open question. It seems if the dean had invited students for some kind of open mic discussion or a free for all discussion at his house, then maybe there would be a harder.

Maybe it would no longer be considered a private forum. But in any case, here, this was a dinner that was for a specific purpose, highly controlled, the way any event at the law school would have been so.

>> Eugene Volokh: Right and, there is precedent sometimes for private property becoming kind of government property temporarily when it's being used for government purposes.

Classic example is polling places. There are times, I think, in most jurisdictions, some polling places are at schools or maybe post offices or some such. I'm not sure about post offices, but at least at schools and parks. I remember that was so in a place I used to live.

But sometimes it could be at a private place, could be a private school or something along those lines for the day that that does become kind of government run property, and the government can have rules. They're saying you can't electioneer. Again, there would be reasonable, viewpoint neutral rules there.

And there are cases having to do with what's allowed there. But in any case, the important point is that whether you treat the dean's house as temporarily kind of used for a public function. Or even if you do treat it that way, the bottom line is these kinds of public functions, dinners for law students, those are not places for orations.

They're not places for people to take out a microphone.

>> Jane Bambauer: Okay, so before I let us leave the quad or the public spaces and ask you about other things that have come up, I'm wondering. Okay, so the basic rule is in a traditional public forum or a designated public forum, the quad, on the university, there cannot be speech restrictions outside of.

I mean, the speech restrict, basically what you would be able to do on a public street is what you would be able to do on the campus. And so the university can have conduct restrictions. They can have time, place, and manner restrictions of the sort that they can do in a public park or on a public street.

What if, is there any problem with, if a university uses a high degree of discretion in terms of which encampments it closes down and which it allows and tolerates, would that.

>> Eugene Volokh: As a matter of fact, there is. Thank you for that leading question, Jane. So it's a huge potential problem because the court has long recognized that when viewpoint discrimination, or sometimes even content discrimination, is forbidden, there are two ways it could happen.

One is there's a formal rule that says no anti Israel protests or no anti semitic or racist protests or some such. That's clearly viewpoint discriminatory on its face. But another might be there's a facially neutral rule, but it's implemented in a discriminatory way. And that court recognizes that would be unconstitutional because of how it's implemented.

And then, relatedly, there's a situation where there's a neutral rule, but it leaves so much discretion that it's just very likely it's going to be implemented in a viewpoint based way. Or sometimes even just a content based way that might also be impermissible. So, for example, if a university were to say, if you want to have a demonstration, you need a permit, and then we'll just decide whether we think that we shouldn't give you a permit.

That would be impermissible discretion, certainly in a traditional public forum, public park. But if a university does, by rule, open things up. Open up the quads for a vast range of speakers, either all students or all visitors. Generally, it can still implement content neutral time, place, and manner restrictions.

But they have to be clear and precise enough so they don't have this risk of discrimination that is inevitable when you've got a great deal of discretion on the government decision makers.

>> Jane Bambauer: Yeah, okay, so let's go ahead and discuss, then, how the rules may apply differently at a private university.

 

>> Eugene Volokh: Right, so the first word of the First Amendment is Congress, right? So that applies to the federal government. Originally, the Bill of Rights only applied to the federal government, but then 14th Amendment enacted after the civil war starts with a new state shall and then goes on to say, basically violate certain rights that people have.

And that applies the First Amendment, that's been read as applying the First Amendment to state governments, and that includes local governments and other state entities. Such as public universities. Now, so private universities are not governed by the First Amendment as such. Now, sometimes people say, well, don't private universities get a lot of federal funds?

Yes, absolutely they do. But that is not the test for whether the First Amendment applies. And we know that because there's a case, very important but little known case called Rendell Baker versus Cohenous from 1982. And there the court said the Bill of rights, First Amendment due process clause does not apply to entities just because they get government funds.

The question is whether the restrictions are being imposed at the behest of the government, are being imposed by the government. So if the government were to tell the private universities, you need to restrict speech, then that would be state action subject to the First Amendment. But if the government just leaves private universities alone, gives them lots of money, but leaves them to decide which restrictions to impose, that doesn't violate the first amendment.

But the First Amendment is not the only game in town. So most commonly many private universities, provide in their student handbooks, well, we're going to protect your free speech rights. And they do that for a variety of reasons. Some of it may be sort of a sense of academic ethics, that that's what universities ought to do.

Sometimes it might be a matter of public pressure. They don't wanna look like they're more censorious than the public university, maybe their competitor university down the road. So if the university does say that in its rules, then presumably it needs to comply with that. At least it needs to comply with that as a matter of just kind of honest administration.

But in fact, that statement might very well be seen as a binding contract. So many private universities have voluntarily decided to follow the First Amendment rules as applied to their students on their property. Now, they may have a somewhat different approach, so for example, they may say, well, that's for our students.

Outsiders, well, we're just not gonna allow them at all, and they're free to do that.

>> Jane Bambauer: And even the claim that a student might be able to bring, I guess, would be contractual rather than.

>> Eugene Volokh: Right, it may be a contract claim rather than a first amendment claim, but it may still be a claim.

And again, even sitting inside whether they can sue, presumably universities should model honest behavior. Students, they shouldn't say, here are the rules, and then, And you trusted us, but now we're telling you we're not gonna fall.

>> Jane Bambauer: Fair enough, right?

>> Eugene Volokh: So also in my own state of California, and this applies to Stanford University, where Hoover institution is located, there's a statute, a state statute.

That applies basically First Amendment rules to student discipline for most private universities and an exception for certain religious universities. So Stanford can't impose campus speech codes based on content or viewpoint any more than Cal can impose them. California is the only state with this particular statute, but it's there, and it's pretty important for Stanford, USC, various other institutions.

New Jersey and Pennsylvania, they're the state high courts have concluded that public spaces, these open quads at public universities, need to be opened up as essentially the equivalent of a traditional public forum, more or less. Again, that's a matter of state law. And states could impose, essentially, states there are providing greater speech protections than the First Amendment provides.

So one thing to keep in mind, we talk a lot about the First Amendment as shorthand for free speech. But free speech is protected by a lot more than just the First Amendment. It's also protected by state and sometimes federal laws, and it's often protected by contract.

>> Jane Bambauer: Okay, so whether it's a private or a public university, one thing that the current situation makes me feel just sort of queasy about is, well, I guess it's two things.

On one hand, it seems to me, I went to college long ago. I remember sort of encampments and student protests of smaller scale. I'd say less, maybe certainly less newsworthy, but still, I remember protesters camping out in the Yale Quad, and basically it was tolerated for long stretches of time.

Sometimes they would even go into the buildings, and that was tolerated to some degree, too. And so on one hand, I see that the universities have sort of put themselves into a pickle, because now if they start actually calling in the police and enforcing trespass rules and enforcing no camping rules.

It looks like the content of the protest has determined the outcome. On the other hand, if there were a protest that were this large in size and that was the same scale of hostility, but the hostility was directed at racial minority groups or the transgender community or something like that.

I could not imagine any university not taking action. And so I guess I'm wondering, going back for a second to the question, oops, Kat has entered the scene.

>> Eugene Volokh: Always good to have a cat in the video.

>> Eugene Volokh: The Internet is all about cats.

>> Jane Bambauer: It is, yes We just We're just visitors here in some Cats world.

Anyway, so going back for a minute to the, it's back, the question of uneven enforcement or viewpoint based discrimination. Do you think universities that decided, let's take a public university, do you think that when the University of Texas, for example, clears encampments, that there's any risk of First Amendment liability?

And then maybe conversely, I'll also ask you, if they don't clear the encampments, is there any risk that the university is falling short of anti discrimination law or permitting harassment for students who are on campus. Jewish students who feel, rightly or wrongly, that these messages are directed at them?

 

>> Eugene Volokh: Sure, so those are tremendously important points and often very difficult, especially when you try to figure out how they apply to particular facts. Let me try to tease them apart a little bit. So, first, if a university is gonna clear a demonstration, it's got to have the goods on the demonstration actually violating the rules.

I don't know enough of the facts about the Texas situation. Tried to get at them. I've tried to figure out what was going on there exactly. Hard for me to know, I think in part because it's still just a few days ago, but at least many people say, it's not clear that these students were violating any really genuinely neutral rules.

They were told that they had to leave and they violated the order, but was there a basis for the order? I don't know, but at the very least it would have to be that. So, it's true that a university could have content neutral time, place, and manner restrictions, but then we need to know what are those restrictions and were they in fact violated?

And if they were, then the university could clear the demonstrators away, but would have to actually show that there was this violation. And maybe, for example, it could clear away some who were violating the rules, but not others who were not sleeping by just sort of standing and expressing their views.

So, a lot depends on the particular details, just like with any law, right? Should we have laws against murder? Well, yes, absolutely. Should this person go to jail or go to prison for murder? Well, did he murder on something? So we need to know the fact. The second question is, how do you try to make sure that these rules are enforced even handedly?

And there is always the danger, because there's always some degree of enforcement discretion that, yeah, for this protest, they even, as you point out, sometimes they clearly violated the rules by occupying some government buildings. That's not legal, it is just not legal, it's a crime. Generally speaking, it is a violation of the rules, but sometimes universities have cut groups some slack.

And I think one reason why universities should enforce these rules rather than cut slack is because, once you set the precedent of, well, this group was allowed to do this, then other groups will say later, well, we wanna do the same, and now you're kicking us out. How are we different from,

 

>> Jane Bambauer: Right, yeah.

>> Eugene Volokh: So that's why I think, actually, once you have the rules, you ought to enforce. That's why I actually think, it's quite right for universities to eject student demonstrators and non-student demonstrators who are actually violating the rules. Certainly if they're acting violently, but even if they're just trespassing or making loud noises that say, using sound implantation and such, in violation of the rules.

Among other things, what if next time it's going to be some white supremacist protest? Or to take an example of a group that I don't agree with, but I think have a legitimate viewpoint, but one that many people don't like. What about anti-abortion protesters? Imagine they say, we want to occupy the Columbia Quad in order to denounce the genocide of the unborn.

I mean, that's a perfectly legit position, but they shouldn't be able to do that for days on end in the middle of a university which is devoted to other projects. And I think the same thing is true of the anti-Israel demonstrations that I do think that they need to enforce the rules evenhandedly.

Now, one question is, okay, well, let's say that they didn't enforce the rules in the past, are they now barred from enforcing them now? I should say, while, again, I think we want to avoid that by enforcing the rules pretty solidly and steadily. I think a university has to be able to say, look, now that we see just how large these protests can be, how disruptive they can be, we recognize that these rules need to be enforced.

They can't be forever barred from enforcing the rules because they once wrongly.

>> Jane Bambauer: Right.

>> Eugene Volokh: Now, the last point that you raise, which I think is also a very important one is, universities do have some obligations to protect their students from threats, from harassment. Which I understand in this context to mean kind of targeted insults and target maybe doing things that are perhaps intimidating or kind of continued unwanted contact with a particular person.

I don't think universities have a legal obligation, or for public universities, even a legal right to protect people from merely offensive public speech. But when it gets to be threats, when it gets to be violence, when it gets to be trespass on places where other students are entitled to go, I think universities do have some such legal obligation.

Now, what exactly is happening at each particular university? Again, you need to know what the facts are. But if indeed there is evidence that this organization has turned into a vehicle for anti-semitic threats, or racist threats, or other threats, it seems to me, that is to say, the demonstration turned into a vehicle for that.

I do think that, yes, universities need to come in to step in and stop that.

>> Jane Bambauer: Okay, so two more quick issues I wanna go over. I know, yes, but before we let this topic go, and by the way, I think we're gonna have to do another one on campus issues, cuz we haven't even talked about faculty.

But two other things that came, of course not,

>> Eugene Volokh: Aren't faculty the most important people in the world?

>> Jane Bambauer: I thought we were the,

>> Eugene Volokh: All right, so the most important ones imaginable.

>> Jane Bambauer: Right, I thought so, yes, we're doing God's work. And anyway, so you mentioned these two other types of public forums that I wanna discuss briefly because they've come up recently.

So one is the limited public forum. One example of that is student groups, like official student groups that get to therefore check out rooms and get their own email accounts and that sort of thing. So here at the University of Florida, we were affected by an attempt by Governor DeSantis and the Board of Regents of the university system here to delist the students for justice in Palestine shortly after October 7th.

This was in response to a protest that the national SJP group was trying to organize. And the DeSantis, the governor's office, thought that this student group was facilitating terrorism in some of the teaching materials or something may have come directly from Hamas or from Palestinians of some sort.

It's interesting, so what happened, there was no public university in the state actually did what they were told to do. So none of the groups were actually delisted. I think that's right under, yeah, because I don't buy the support for terrorism statutory interpretation that the governor's office was making.

I think it was absolutely right to keep the group intact and to leave their rights intact as well. It seems like you agree.

>> Eugene Volokh: Yeah, so I think you're absolutely right. And you're also right to point out this is a limited public forum situation. The category of various kinds of public forum emerged as to physical spaces, like the forum refers to the forum back in ancient Rome, like an open square that people could gather in.

So it was likewise applied to physical spaces like quads at universities or classrooms and universities, that was a classic example of a limited public forum. But the court has since, I think, quite correctly, applied it to other programs which are basically open to a wide range of applicants on a relatively non-selective basis.

That includes funding like, any student group will get $500 a semester, or some amount of money per student. Or they'll get a bulletin board, or they'll get their email account, or back when it was hard to set up your own web page, that we would give them a web page.

So that cannot be allocated on a viewpoint based basis because, restrictions and limited public Florida have to be reasonable neutral. So to the extent that a student group is being rejected because it's pro Palestinian or pro terrorist or pro murder or anti Semitic, that is an impermissible viewpoint discrimination.

Now, if indeed the rule is, well, we're not rejecting them because of what they say. We're rejecting them if they're basically conspiring with a designated foreign terrorist organization, that's a viewpoint neutral rule. In fact, it may be legally obligated that the university may be legally obligated not to assist, essentially an entity that's basically violating the law that way.

But there didn't seem to be enough evidence that that is what the local chapters in Florida universities were actually doing. And in fact, the University of Florida, at the very least, expressly rejected the call to de recognize the students for justice. And in fact, that's why the students lost.

They sued the University of Florida seeking an injunction, and the court said, wait a minute, the university already said it wasn't gonna do anything to you.

>> Jane Bambauer: Yeah, okay, good. So then finally, at USC, one of the selected student speakers was disinvited from speaking at their graduation ceremony.

And so this also caught some national news. How would you analyze that situation?

>> Eugene Volokh: Yeah, so remember, there was this category I mentioned of not a forum at all, often ignored in these kinds of discussions, but tremendously important and indubitably, it exists. Which is to say, there are certain things that are basically the university speaking itself, sometimes through people.

Any entity has to speak through people. So USC, of course, is a private university. And by the way, that private law, excuse me, that's California law, that applies to private universities. Doesn't say private universities are entirely bound by the First Amendment. It just says, no students can be disciplined for their speech.

It doesn't say that they have to be given an opportunity to speak at graduation. So USC wouldn't be bound here by any of these rules as a legal matter. But imagine this had happened at UCLA or at some other public university. Even there, the university is entitled to say, look, we're putting on a show.

This is our pageant, and we invited people. And some people we've invited precisely because we kind of like what we expect them to say, the valedictorian. Historically, I think we sometimes think of it as this is the student with the highest grade. But no, it's actually a student chosen from a lot of applicants who meet a very high grade threshold.

There are lots of people who do, and it's chosen in a discretionary process. They may say, we wanna choose someone who is expecting views we like or just whose persona we think will enhance the event rather than diminish the event. So I think in that respect, I think even a public university, this wouldn't violate the first event.

 

>> Jane Bambauer: So I agree with that. Exactly, I was just gonna say it's a very poor form, though.

>> Eugene Volokh: It is, and it's so for a couple of reasons. One is that the student had indeed expressed some statements that, as I understand it from the reports, were very, very anti Israel.

But lots of students have these views, and probably lots of students have anti Palestinian, that is to say, anti Hamas and anti Palestinian government perspectives. And I just don't think we wanna be in a situation where people are visibly, publicly removed from these honors because they express these views not even in their speech.

There was enough indication she was going to express sharply anti Israel views in her speech, but just in their public social media comments. The other thing that was bad, I think about it is the university says, didn't say, we just think she's too controversial, and we would like a speaker who is less divisive, less alienating.

They said, we're afraid there's been some indication, we've been warned that there might be some danger of some people who dislike her enough that they might cause trouble, maybe attack the graduation. So that's why we're gonna cancel this. If that's all it takes to cancel a speaker, the message is loud and clear to anybody who really doesn't like a speaker.

All I need to do is send enough emails through one person, maybe just send a bunch of emails through anonymous accounts, pretty safe for me, and they're gonna say, ooh, there might be something happening, so we're going to cancel the speaker. Behavior that is rewarded is repeated. I don't know how many people actually, if anybody actually sent any outright threats.

I think the university didn't point to any specific threats. So make, suggest that maybe there were some really kind of hostile, nasty remarks, but those people wanted her, can, wanted her speech canceled. So the result is that anybody else who wants someone's speech cancelled say, well, they worked for them, let me try it, too.

So the consequence will be a further, further spiral of threats or near threats. And the result is this classic example of the heckler's veto, where people who are essentially, expressly or implicitly threatening some misconduct basically get their way. I don't like that, I don't think universities should contribute to that.

I think it's important to keep graduation safe, but I think we can't maintain our freedom, and not just legal freedom, but a culture of freedom of speech. If universities just give in at the slightest hint of some possible disruption of freedom.

>> Jane Bambauer: Right.

>> Eugene Volokh: So I was very disappointed, and not just because it's USC and I'm UCLA, I swear.

 

>> Jane Bambauer: I do believe you have a principled reason.

>> Eugene Volokh: For any university.

>> Jane Bambauer: I believe that. It actually kind of reminds me of our very first topic, the book bands. And let me explain why. I think one thing that went wrong here was that the administrative committee selecting the speaker.

I mean, the reporting is a little bit vague on this, but it's possible that they selected her in part because of her background and her political views. Maybe not, but it seems that the flaw if the university wanted to avoid a controversial speaker and there was reason to think that she would bring politics.

And especially a political statement about the war in Gaza, into the speech, the proper time to make a wiser selection was before they announced the valedictorian honor, right?

>> Eugene Volokh: So yeah, that's right. By the way, just to specifically, concretely illuminate your point about why they chose her, we don't know for sure, what criteria actually make a difference there.

But one of the criteria formally listed on the USC valedictorian eligibility site is contribution to university and community life. And that's a kind of criterion which possibly quite legitimately, could be used to say, look, if there's somebody who we think is particularly uniting. Particularly activist in a way that is likely to kind of make our fellow Trojans feel good about the university and the community and them, then we'll choose this person.

On the other hand, if this person is really very militant about various topics in a way that alienates some people, they have every right to be that. But maybe they're not the best choice. I'm not, I don't really love that as a condition for selecting someone, even for a place of honor like that at a university.

But if you're gonna do that, do it quietly. Do it behind closed doors.

>> Jane Bambauer: Do it early and quietly

>> Eugene Volokh: Yes, we're gonna choose her. No, no, no, no, we've gotten such pushback, we're gonna unchoose her.

>> Jane Bambauer: Yeah, so it does remind me of removing the book after it has already been purchased, but.

 

>> Eugene Volokh: Right.

>> Jane Bambauer: Well, okay, so I think we better wrap it up. There's clearly much more to say about campus free speech and culture issues more generally. So I'm sure we'll revisit this.

>> Eugene Volokh: Absolutely, I'm much looking forward to it. Always a great topic to discuss and always a great pleasure to discuss any topic with you Jane.

Looking forward to next time.

>> Jane Bambauer: See you next time, everyone.