The national debate on the topic of free speech at college campuses took over the Marshall-Wythe School of Law last Friday, Feb. 2.
The First Amendment Under Fire: A Symposium on Speech, Protest and the Role of State Actors, co-sponsored by the American Civil Liberties Union of Virginia and the law school, was attended by students, faculty and community members. The symposium was composed of three panels addressed issues relating to speech on campus, racial justice, hate speech and policing of protests.
It has become even more important than ever that campuses have reasoned, collegial, hard-hitting conversations about the First Amendment — conversations of the sort that are going to take place at William and Mary today,” Reveley said.
“I think the facts about speech on campus often get lost in the excitement,” College of William and Mary President Taylor Reveley said in his introductory remarks. “And amid all this, it has become even more important than ever that campuses have reasoned, collegial, hard-hitting conversations about the First Amendment — conversations of the sort that are going to take place at William and Mary today.”
The symposium, which was conceived after the Aug. 12 white supremacist rally of Charlottesville, Virginia, invited Executive Director of the ACLU of Virginia Claire Guthrie Gastañaga to speak. Gastañaga had been a scheduled speaker for AMP’s Sept. 27 event “Students and the First Amendment” at the College. However, Gastañaga never spoke, because the event was canceled amid student protests from Black Lives Matter criticizing the ACLU’s choice to protect the white supremacists’ right to march in Charlottesville.
“There’s no way that we at the ACLU of Virginia have any illusions about how difficult these issues are, how tragic the events of Charlottesville were, how every single person who had anything to do with it wishes that it didn’t happen and feels deep regret for loss of life that occurred there,” Gastañaga said. “We all need to continue to struggle to understand what we can do, should do, and are able to do to both secure our right to speak freely and to do so when we assemble peaceably and to confront white supremacists and Nazis and the Ku Klux Klan assertively every way we can within that peaceable context. “
Susan Herman, president of the ACLU and professor of law at Brooklyn Law School, emphasized the ACLU’s content-neutral policy when deciding to represent individuals and groups, noting that being content neutral is not the same as agreeing with ideas.
We’ve represented all sorts of people who we don’t agree with too, including the Nazis and Skokies, the Klan, the Westboro Baptist Church — we wrote an amicus brief in that Supreme Court case,” Herman said.
“We’ve represented all sorts of people who we don’t agree with too, including the Nazis and Skokies, the Klan, the Westboro Baptist Church — we wrote an amicus brief in that Supreme Court case,” Herman said. “The north star for us in all of our First Amendment work has always been content neutrality. … Defending somebody’s right to say something under the First Amendment is not the same as agreeing with what they say. … We’re not defending the speech — we’re not in fact white supremacists, or Nazis, or Communists or whatever. The idea is that we are defending the First Amendment in the same way that due process is defended.”
Herman emphasized the importance of including all speech to the goal of achieving racial justice, even if the speech included is hate speech. She also pointed out that the creation of laws to censor hate speech would be counterproductive.
“I think the solution is not to change the law around that fact, because I think that does more harm than good,” Herman said. “The way to achieve racial justice is not to give government the power to censor hate speech. Think about who government is. It seems to me that the very challenge to the idea of the injurious nature of hate speech on a campus for example, or in a demonstration in Charlottesville, comes from the recognition that our institutions are not always free from bias, that they are generally majoritarian, and the majority rules. … Why would you want to allow the university, or the city of Charlottesville, or the Trump administration to be holding the reins of what speech is allowed and what speech is not allowed?”
Wornie Reed, professor of sociology at Virginia Tech and director of the Race and Social Policy Center, acknowledged that hate speech and racial justice can coexist provided that “we resist the emergent idea that speech is violence.”
“If we resist this trend, and I suggest we should, we will see hate speech as something different from racial injustice,” Reed said.
Reed gave an example of racial injustice, noting that while African Americans make up only 20 percent of the population and only 22 percent of illegal substance users and sellers in Virginia, they make up 50 percent of those arrested and 70 percent of those incarcerated for the crime.
“If we stop racial epithets, that won’t bring us racial justice,” Reed said. “So its existence is unrelated to whether or not we have racial justice.”
George Nwanze J.D. ’19 said he believes that colleges need to be mindful of the types of speech that they encourage. He said they also need to ensure that marginalized communities feel included and supported before the arrival of speech they oppose or disagree with.
There exists this problem in terms of representation — not just representation in terms of ideology, but representation in terms of demographics, representation in terms of speech and the type of speech that the college promotes,” Nwanze said.
“There exists this problem in terms of representation — not just representation in terms of ideology, but representation in terms of demographics, representation in terms of speech and the type of speech that the college promotes,” Nwanze said. “Recognizing and validating people’s experiences from all walks of life is a great step in the right direction.”
University of Pennsylvania Graduate School of Education professor Sigal Ben-Porath said she believes that because high school institutions have increasingly viewed free speech as a disruption to learning in the classroom, colleges needed to take a more active role in helping students manage conflict. She said that because students admitted to selective colleges are not used to conflictual and diverse environments, they have trouble resolving conflict independently.
“They are used to being silenced by their public institutions that they have experienced so far,” Ben-Porath said. “That’s their common experience they share.”
While Ben-Porath acknowledged internal conflict surrounding free speech at colleges, she emphasized that speech on campuses is more threatened by current legislation, both in state legislatures and at a federal level.
“At the federal level, with the effort to tack on a set of restrictions into the re-authorization of the 1965 Higher Education Bill, … there is an effort to impose viewpoint diversity and extensive forms of religious liberties to the re-authorization of the Higher Education Act,” Ben-Porath said. “This is a concern to me because I think it’s going to be highly restrictive of the kind of actions that college and universities can do.”
