Schools Of Hard Knocks: Columbia And UCLA Get Educated On Free Speech

Tom Church: Welcome back to the Libertarian podcast, the Hoover Institution. I'm your host, Tom Church, joined as always by the libertarian professor Richard Epstein. Richard is the Peter and Kirsten Bedford senior fellow here at the Hoover Institution. He's the Lawrence A Tisch professor of law at NYU, and he's also a senior lecturer at the University of Chicago.

On today's show, we'll be talking about UCLA's unbelievable approach to pro-Palestinian groups and their treatment of Jewish students on campus, the results of poor handling of protests by Colombia's now resigned president, and the upcoming DNC convention. Richard, how are you today?

Richard Epstein: Well, I'm very pessimistic cuz I think it's all gonna turn out quite badly.

Tom Church: Richard, when was the last time that you felt optimistic?

Richard Epstein: October 6th.

Tom Church: You know what? Fair answer, fair answer.

Richard Epstein: I think it's just been a downward spiral since that time.

Tom Church: It's really led to some, frankly, I think, unbelievable behavior on campuses. Let's start with UCLA.

A federal court just blocked UCLA from allowing and assisting pro palestinian encampments and their supporters from barring jewish students from large parts of UCLA's campus. Now, this happened earlier this year, right, while students were still on campus. Pro-Palestinian groups were excluding Jews from parts of campus, weren't letting them go through, were trying to get them to do things like renounce their faith or try to identify them.

And obviously this is not allowed. And yet you still argued that, hey, they at some instances allowed them to do this. They didn't clear them out, they didn't prevent them from doing it, and they were trying to de escalate violence. Richard, I'd love to know your reaction here to the federal court and what's likely to happen to UCLA now.

Richard Epstein: Well, we don't know about the latter. The liability issue is so astonishingly clear that it's almost impossible to understand how it is that a university can stand aside when people engage in this kind of conduct. There is a long tradition to allow people peaceably to assemble in order to address their grievances.

This is actually a kind of a tricky notion. So let's talk about some of the violence, some of the variations. First of all, where is it that you're allowed to do it? Well, if you happen to own a particular piece of property and you want to have a meeting there, you're protected by the law of property against trespasses or intrusions by others, and you could run your meeting subject to the usual constraints against you or committing violence, inducing violence or creating some kind of a nuisance when you get onto public spaces, it's much more difficult because there's no clear ownership pattern.

And almost invariably you have to get some kind of a permit, and the permit is usually subject to conditions that you make sure that you stay within the bounds of peaceable behavior. My understanding in the Palestinian case is nobody bothers to get any kinds of permits, and nobody bothers to make sure that they don't interfere with the right of free ingress and egress of others.

And so at this particular point, you have two wrongdoers. First of all, the groups and all the members of the groups that actually engage in the exclusion. And secondly, the university, which at this particular point owes its students, its jewish students and everybody else the right of free access, and they're in breach of their duty to stop the wrong.

On the other side, generally speaking, engaging in this kind of conduct is a more serious harm than is not preventing it. But that's not to say that not preventing it is as a trivial offense. It's an extremely powerful offense and a very troublesome one under these kinds of circumstances.

And so, I can't conceive of any serious sort of defense that you have in these particular cases when it comes to the issue of liability. And the thing that's so amazing is how it is that UCLA can have an administration that would allow this thing to go that far.

I think the only thing to do when you have willful force is to do what President Schaefflich tried to do but failed to do at Columbia, which is to call in the police and to have them immediately move, have them arrested and subject to criminal prosecution. And if the jewish students were doing that kind of behavior, I would say the same thing with respect to them.

And indeed, if you actually look at the patterns in Israel, if there is a serious offense by a Jewish settler against somebody else, they are usually brought to justice and have to pay some kind of a criminal price. Either fines are usually incarceration of one kind or another.

And so it's just incomprehensible that they could let this go that far. The Governor must have some oversight, it's kind of incomprehensible that he doesn't speak out about this. And so what it is, it becomes a national disgrace. The hard question is, what do we do by way of a remedy?

Are these students are gonna return enforced come the fall? Are they gonna come enforce to the Chicago Convention next week? And if they do that, what is the appropriate response? Well, I think at this particular point, having been burned in the way it did. What happens is that UCLA is duty bound to put into place some protective situation so as to prevent these aggregations and these blockades from taking place altogether, and that they will be in violation of any order if they stand aside and allow a repetition of the previous event.

And if the students come in, I think they have to be put on perfect notice that what's going to happen to them is they're going to be arrested and tried as criminals, which is what they are. And I think that UCLA, in order to comply with the judge, has to say, we commit, if this happens on our campus again, to impose very heavy sanctions on the people who engage in that.

And that includes expulsion for students who've been involved in this with some kind of a warning the second time. You just can't run a civilized society by allowing people to bully everybody else and then to claim that the nobility of their particular cause justifies or excuses everything else that they want to do.

I just don't regard this as a hard case. It's even worse because you've got yourself a state institution which had some kind of fiduciary duties to all people. And it kind of shows that the Palestinian protests have gone so far beyond the traditional grounds for protest, no permit, massive violence.

All sorts of invidious and ugly kinds of speech and rhetoric, and other kinds of actions of destruction that is just not acceptable in a similar society. And I just don't think the people at UCLA actually believe that. And to me, that's going to be the real challenge, and it may well be.

If they decide to turn the blind eye again, they're going to be personally liable perhaps toward action. And it may well be that they will, if it's sufficiently flagrant in their indifference, maybe be even subject to some kind of criminal liability themselves for neglect of duty. That's a stretch to some extent.

But if the patterns are as they've been in the past, willful ignoring of these particular duties and aiding and abetting other individuals in the performance as a criminal act. Then it seems to me that a well-timed prosecution against the administration would be deserved. But the great problem is, the state of California and the Los Angeles police force has no willingness to suspect, to enforce standard property rights laws.

And so what they do is they kind of say, well, we're indifferent. We think these guys have a right to talk and the other guys have a right to talk, but it's all chatter and that kind of moral equivalence between really venal acts on the one hand, and people being victimized by those act, on the other hand, is just not acceptable in a civilized society.

Tom Church: Richard, I wanna get some clarifying questions here.

Richard Epstein: Sure.

Tom Church: So on UCLA's campus, I mean, sure, a lot were students who are doing this, but as we've seen on other college campuses, there are lots of outside groups, third party groups. It's one of the things UCLA argued was, hey, these were third parties doing this.

It wasn't us, it wasn't our responsibility. So I mean, is it a little bit tougher To enforce, or is it, I'm trying to think of jurisdictional issues. On a college campus, usually, there's some sort of public safety, not police force, but public safety officers. Is it as clear as you have to coordinate with the LAPD in order to bring people in?

I mean, if this fall happens and the students come back, the protesters come back and they do this again, would you expect UCLA to jump on it because of this lawsuit?

Richard Epstein: I think they have to. Look, one of the things that Columbia said before Ms. Shafik resigned is we're only going to allow people on campus who have campus IDs and everybody else has to go through a fairly close vetting before they're allowed on the campus.

And I think that that's absolutely, strictly necessary in order to protect the students that are involved. What happens is UCLA cannot claim to be a respectable bystander with no affirmative duties to act. So long as they're in control of the premises, they have very strong liabilities to the students who are there lawfully to protect them from various kinds of terrible behaviors going on.

Now, the students, we certainly don't wanna do the following. Have the Israeli students come and have them armed to the teeth, and then start to go after the Palestinians in what becomes some kind of a bloodbath. And so since you don't want those people who're victimized to resort to force, a preemptive force, what you have to do is to make sure it's not necessary for them to do it by supplying them with the kinds of protection that every citizen, every student, and every person who works or lives on the UCLA campus is entitled to have.

So the whole thing is kinda grotesque at this particular point, and I just cannot understand it. Let me make one other point. The bad news began, I said, the joke was, when was the last good day? October 6th, the last day of the truce. Remember, the single most devastating episode in this whole thing was on October 8th, where the Palestinian students and their various support groups posted on Harvard stationery and on Harvard style, the notion that the Zionist entity as a regime is entirely responsible for everything that happened at Hamad.

And all the universities said is we disagree with that, we dissociate ourselves from it. But when people are engaged in that kind of defamation, that kind of reckless falsehood, it's not only a duty to dissociate yourself, you have to shut it down, if they're using university facilities. And there's no free speech argument which allows you to usurp the university's name and the university's equipment to state falsehoods against other individual.

But the moment they basically decided that, well, it's one side against another, we're just gonna be indifferent to the situation. If you're indifferent to words, then all of a sudden you become indifferent to force, and that's exactly what has happened in this case. So they have a lot of soul searching to engage in.

But given the political constellations in California, my view is there's gonna be trouble ahead. And the university will try to do some half measures which will be insufficient and will, again, raise the judge to get in the case and perhaps be even more tough with this way in which he deals with UCLA.

He may want, as I said, jail and fines and other kinds of restrictions, have the police take over the campus, or the National Guard come in. All of these things all of a sudden become in play again, if, in fact, we see a repetition and worse of what we had the first time.

Tom Church: Last one on this, Richard, UCLA being a public school, free speech rules are a little different. But I know that speech codes can change at universities. What kind of different limits are we looking at for UCLA students or, I don't know, I'm not gonna get into outside protesters, but say UCLA students protesting and carrying the rhetoric as far as-

Richard Epstein: What happens is the university here has a duty with respect to speech. It's a public institution, and it certainly cannot go around and engage in the suppression of speech on campus, which is truthful, trying to disseminate public information. But if it turns out that what you have on campus are the threats of force and the use of defamation, then as a public institution, they, I think, have to enforce the restrictions against the behavior that are utterly inconsistent with the principles of free speech as they developed elsewhere.

And so if it turned out that the Palestinian students had found a place on campus in which it was relatively guarded to speak one way or another, I think that what would happen is you should do what they did at Stanford, which is do nothing with respect to those kinds of activities.

But the moment they stop demonstrating in that particular fashion and start coercing in another fashion, then you have to come extremely heavily down upon them. So the university essentially is a public institution, but it's one that has management prerogatives. So it has more leeway in the way in which it deals with protests on its campus than it did if it tried to go out into the world and to regulate the way everybody else behave.

So a general police force trying to deal with public spaces would face different kinds of problems. But even there, I mean, you can't just simply march into the public and say, we're demonstrating anywhere you want on the streets and so forth. There are places which are simply taboo to these kinds of activities.

And there are other places where you need to have permits to get in there. And the permitting process has to be reasonably tough. It has to have conditions on where you can go and what you can do. I think it could require you to post some sort of bond, and you could require people to understand that they can be arrested and they won't be able to essentially challenge the legality of the ban after the whole thing is in place.

It's really complicated. It's something of a mess. But what you can't do is to say that the rioters and those people who decide to threaten everybody else get to determine the rules of the game as to when they can and cannot behave in certain kinds of ways. And if the university lets them have that degree of discretion by blocking and interfering with everything else, then it's going to be on the hook for tortious liability and probably for criminal liability as well.

I just don't think that there's any compromise on this issue, given the facts as they were portrayed by the judge.

Tom Church: Richard, let's switch over to Columbia, where the embattled, I guess, former president Minouche Shafik has resigned following her handling of all the pro-Palestinian protesters. They did try and go in and clear the campus, but then, of course, they invaded several buildings and blockaded and graffitied.

Many of those students, I believe, have not either have had sentences dropped by friendly DAs or the universities maybe not expelled them. So she's out now. She's just announced that she's gonna resign and-

Richard Epstein: No, she's already resigned.

Tom Church: She's already resigned, yes. Yes, she's already resigned. I mean, I'd love to get your reaction here, but also to know how we treat Columbia differently than UCLA because it's a private university.

I mean, they did call in the police and arrested the whole group and brought a wyvern in. So it doesn't seem like they're on the hook for as much liability.

Richard Epstein: Well, I think it's actually a somewhat tragic situation. The first thing we have to ask about Ms. Shafik is, was she pushed or did she jump?

Was she kind of told to leave but not fire? And I don't think that's what happened. I think she decided to jump, and I think she decided to jump because she had concluded that Columbia was completely ungovernable. Because she was being absolutely viciously attacked by all the pro-Israelis people, including Republicans in Congress, and by all of the faculty who were pro -Hamas and by the huge student body.

And as far as I can tell, anything that she did going forward would inspire the wrath of either of both sides of it, because the way in which these things are going now, Hamas is so strong, and the Palestinian groups are so emphatic that anything short of the total destruction of Israel is an un-defensible position in their mind.

And the Jewish students are obviously gonna disagree with that, so she calls in the police the right thing to do. And then Alvin Bragg, the worst district attorney in the world, perhaps what he does is he dismisses the charge on evidentiary grounds when he knows who the people were.

They have them in handcuffs and all the rest of that stuff, tie downs and so on. And he just lets them go because he said, I'm not quite sure who they were. Well, you could find out who they were if you want to. You had them there, you arrested them.

You could take their face masks off and take pictures of them. So what happened is he double crossed them, did the university come to her defense afterwards? I think it was noticeable for it silent, probably because the board of trustees there was completely torn amongst itself as to whether to back her or nothing.

This is not what happened at Penn, this is not what happened at Cornell. This is not what happened at any of these other places or Harvard. This was a competent woman who has caught an incredible crossfire between two utterly opposed groups. So what happened is the British Labour Party comes in.

She is a kind of Labor party guy, a conservative labor guy, believes in international welfare, coordination of plans of one kind or another. She's devoted her life to this stuff. And the prime minister of Great Britain comes and says, would you like to have a big job with me?

And I think she said, why do I have to stay here and suffer all that? So she accepted the position, arrived, resigned immediately. That's much more a behavior. You don't resign immediately if, in fact, you have some hopes of staying out, because it puts Columbia in a terrible position to have an instantaneous leader, which they've now managed to supply themselves in the medical center.

But I think, in effect, what she decided, and I think she was right, is that Colombia had become completely ungovernable, and that no matter what she did, she would be subject to the really vicious attacks from everybody else. And so 13 months into it, she doesn't have to get ulcers.

She has a family, and she was from England anyhow. So what she does, she just decides to jump ship. And, I mean, Columbia has not defended her. The occupation of Hamilton hall, is that peaceable when you break and enter a building and barricade yourself? Well, only if you think that the definition of peaceable excludes only one thing, which is homicidal activities and there were no homicides that were planned in this particular case.

So I regard it as a great tragedy what's gonna happen, I think you're gonna see the same thing and more. You mentioned that it's gonna be funded by student groups. It's also gonna be funded by various kinds of outside groups associated with the Palestinian cause. I think that this sort of the world rhetoric about the International Court of Justice announcing that the Israelis are liable for genocidal acts of one kind or another on suitable investigation.

All that does is to feed into this particular situation by saying, see, how could you not demonstrate against people who basically have committed some form of genocide? Look at what the ICJ, the International Court of Justice, has done. So it's gonna be a ghastly mistake there. And as you said, it's gonna be students on campus.

It's also gonna be people coming from off campus. Columbia, if it wants to survive at all, has to have a very strict rule about outsiders coming onto the campus. And what it has to do is to work out some kind of deal with the mayor and with this wretched attorney Bragg to make sure that if they're going to be arrested, these things will actually be consistently carried out.

So they will not be subject to being countermanded, leaving the next president as hopeless as the former. And remember, what do I think about the Columbia students? Well, I mean, if you have 30,000 students or 40,000 students, and you have 10% of them who create mayhem, you have a very nice student body and you have 4000 people out in protestors bringing their friend.

So the great problem of a place like Colombia is all those people sitting there working in laboratories, translating texts from foreign languages, writing their PhD thesis they don't matter. You have to deal with the squeaky wheel, and it doesn't need oil, it needs a thrashing down. And I just don't believe that given the history that we've seen with all of the refusals over the summit to continue, with the exclusions, the suspensions and so forth, that any university is going to have the strong courage to stand up to what's going on.

So I think we're into some kind of an intellectual nuclear winter as these protests continue and the universities constantly try to dissociate themselves from the protest, but don't believe that they could use force to stop themselves. Unless you see some very strong announcement coming out of Colombia, not only from its president, but from the head of the board of trustees unanimously saying, we will not tolerate a repetition of what happened on campus last year, and they're gonna get that repetition and more.

There has been no sign of any self restraint in any public forum. I mean, these are people who take Kamala Harris and they call a killer Kamala, what's going on here? Absolutely mad. I mean, think about her Middle east policy is, I think, in fact, it's much too sympathetic to a moth, but she doesn't deserve that kind of treatment.

Nobody does. And the fact that the convention is gonna be disrupted by cries like this, this is a genuine threat to the nature of Republic. Because the people who are doing this insist that they speak for the entire nation when they demand divestiture, alienation from Israel, and everything else that's going on.

And you cannot let a tiny minority of raucous individuals who are willing to use force and know how to do so effectively dictate the pattern of behavior that takes place in this country. And so the Democratic convention has to do is issue a statement, we welcome anybody's support, but we will not take the support of anybody who wants to subvert and to undermine American institutions by the use of force and violence.

You notice those are the words of the Sedition Act, the Smith Act, and all the great statutes that were used punishment, and many times they were obviously abused. You don't wanna apply a sedition statute to a bunch of left wingers who sit in somebody's living room and study some Marxist texts.

But that's not what's going on in this particular case, it's going so much further. And you do have here an immediate threat of violence in force. And those are the circumstances in which public intervention has its maximum justification.

Tom Church: You've been listening to the libertarian podcast with Richard Epstein.

As always, you can learn more if you head over to Richard's column, the Libertarian, which we publish on defining ideas @hoover.org. If you found our conversation thought provoking, please share it with your friends and rate the show on Apple podcasts, Spotify, or wherever you're tuning in. For Richard Epstein, I'm Tom Church, we'll talk to you next time.

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