There are no binding precedents on these complex issues, and the courts will have to balance conflicting rights — to free speech and to a safe environment. Violence and threats against Jewish students have become so rampant on many American campuses as to create a hostile and unsafe environment. University administrators face difficult challenges — legal, educational, moral, and financial — in trying to deal with this growing concern.
I appreciate your advocacy on the safety of students in this campus environment. I also have concerns for faculty. I want to explore the constitutional theory here and then my practical take and invite feedback. Universities have higher obligations to protect students than governments do toward the general public. Schools have been recognized as places where free speech can be burdened to protect students. However, recently C1.G v. Siegfred 38 F.4th 1270 (10th Cir. 2022) just affirmed the right for students in school to make anti-semitic speech, no matter how "assine". (But when it crosses the line to "fighting words" it becomes dangerous and tips the balance to burdening free speech but that is not the dynamic here.) This case seems most like Virginia v. Black, 538 US 343 (2003), where the standard is "intent to intimidate" where the defendants burned a cross in the yard of a black family. This is not unlike wearing Nazi attire accompanied by statements with an "intent to intimidate", but the cases where it is directed specifically at an individual student or groups of students or a family (like Virginia v. Black) would be the cases that would probably be most successful. (However in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) a similar ordinance had been struck down as unconstitutional because it targeted content based speech, so there is a narrow band of balance.) I am not as optimistic about the contract theory because such things as course syllabi are considered "contracts" and are all very subject to change, despite "safety" being a top obligation you expect from universities, it is not the reality and probably not a legal obligation. The Clery Act is very on point here which requires universities to have a safety plan, report every incident and to address protecting victims. Unfortunately there is no cause of action in the Clery Act, meaning it does not give you a right to sue for violating it. But in 2022 Liberty University was sued by multiple "Jane Does" for failing to comply with reporting and addressing campus crimes, and they reportedly settled with multiple plaintiffs for undisclosed amounts. So with these longer term solutions, an immediate step is needed for safety. The practical step to ensure safety is to apply equally to all students a warning that if you are intimidating any student you will be ordered to leave the campus and if not you will be arrested for criminal trespass. In the end, this is what Virginia v. Black relied on in upholding their statute. Universities are all afraid of being sued by the arrested or expelled student if their reasons end up being based on unconstitutional reasons, and criminal trespass is about as risk averse and neutral as you can go without running into questions of First Amendment or content-based regulation. Public universities have the same standard as governments not to burden Free Speech, while private institutions are not government actors and may have more restrictions (like a religious university). In the end, restricting free speech is almost always a bad idea with a few exceptions hammered out by the U.S. Supreme Court, so this is not the best solution. So a strict "no intimidation or you will be asked to leave the campus or be arrested for criminal trespass" policy (followed by a due process hearing for temporary or permanent expulsion from the institution) would be a good immediate response. Then use the Clery Act for individual cases of threats to safety and the hostile environment arguments articulated by Prof. Dershowitz for individual student cases. Any thoughts on this?
You have focused on the demarcation between free and non-free speech, showing an admirable respect for the protection of free speech, even if it is noxious. I must agree with that.
The line between free speech and assault is crossed when offensive speech is aggressively directed at its target. Even more so if it is done in such a way as to imply an escalation to violence may be imminent, and that such violence would be justified. This is exacerbated further if the victim is prevented from removing themselves from the encounter by being obstructed or surrounded, and there is no doubt whatsoever if the aggressor engages in actual battery. All of these have taken place in universities.
In short, this is more about violence than speech - actual physical violence, not as in 'misgendering' some entity with day-glo hair, or Trumpian 'hurty words' on twitter. Physical violence.
In the light of this, it may be worth reviewing the approach taken by the SPLC when they successfully sued and bankrupted the organizations to which certain racially motivated attackers belonged, by arguing that they also had some agency in the crimes.
It may well be possible to show that institutions such as the universities, DEI departments, and student groups, have significant agency in encouraging, or even just facilitating such acts.
"In 1987, Morris Dees of the Southern Poverty Law Center (SPLC) began using a new legal strategy to successfully sue hate groups for criminal acts of violence committed by their members. The judgements often bankrupted the defendant organizations. Dees’ strategy relied on agency theory, which asserts that an employer has legal liability for the acts of an employee when the employee performs their duties in line with the interests of the company. However, Dees applied agency theory outside of its traditional commercial context to non-profits and other organizations."
"[w]ith few exceptions, those most directly charged with confronting prejudice — Offices of Diversity, Equity, and Inclusion — have failed to stand with Israeli and Jewish students confronting the oldest prejudice of them all.”
This is a bizarre statement. DEI is not designed to reduce or confront prejudice. It's designed to be prejudice. It favors certain groups over others predicated upon skin color. It's purpose is to discriminate. What planet is Secretary Summers living on? Where has he been for the past forty years?
Does he not understand the postmodernist neo-marxist position? They've made it quite clear.
Alan, during the Bush administration, Bill O'Reilly had a news segment called "The No Spin Zone". In one episode , he explained as to how the educational system was becoming anti American and out of control. Yet, no one paid attention , nor bothered to check if this was true or not true. So , here we are . The fact is that when a person tells the truth, 99 % of the population will not listed , nor desires to listen. In our society, Americans practice crisis management, instead of preventive management .
I appreciate your advocacy on the safety of students in this campus environment. I also have concerns for faculty. I want to explore the constitutional theory here and then my practical take and invite feedback. Universities have higher obligations to protect students than governments do toward the general public. Schools have been recognized as places where free speech can be burdened to protect students. However, recently C1.G v. Siegfred 38 F.4th 1270 (10th Cir. 2022) just affirmed the right for students in school to make anti-semitic speech, no matter how "assine". (But when it crosses the line to "fighting words" it becomes dangerous and tips the balance to burdening free speech but that is not the dynamic here.) This case seems most like Virginia v. Black, 538 US 343 (2003), where the standard is "intent to intimidate" where the defendants burned a cross in the yard of a black family. This is not unlike wearing Nazi attire accompanied by statements with an "intent to intimidate", but the cases where it is directed specifically at an individual student or groups of students or a family (like Virginia v. Black) would be the cases that would probably be most successful. (However in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) a similar ordinance had been struck down as unconstitutional because it targeted content based speech, so there is a narrow band of balance.) I am not as optimistic about the contract theory because such things as course syllabi are considered "contracts" and are all very subject to change, despite "safety" being a top obligation you expect from universities, it is not the reality and probably not a legal obligation. The Clery Act is very on point here which requires universities to have a safety plan, report every incident and to address protecting victims. Unfortunately there is no cause of action in the Clery Act, meaning it does not give you a right to sue for violating it. But in 2022 Liberty University was sued by multiple "Jane Does" for failing to comply with reporting and addressing campus crimes, and they reportedly settled with multiple plaintiffs for undisclosed amounts. So with these longer term solutions, an immediate step is needed for safety. The practical step to ensure safety is to apply equally to all students a warning that if you are intimidating any student you will be ordered to leave the campus and if not you will be arrested for criminal trespass. In the end, this is what Virginia v. Black relied on in upholding their statute. Universities are all afraid of being sued by the arrested or expelled student if their reasons end up being based on unconstitutional reasons, and criminal trespass is about as risk averse and neutral as you can go without running into questions of First Amendment or content-based regulation. Public universities have the same standard as governments not to burden Free Speech, while private institutions are not government actors and may have more restrictions (like a religious university). In the end, restricting free speech is almost always a bad idea with a few exceptions hammered out by the U.S. Supreme Court, so this is not the best solution. So a strict "no intimidation or you will be asked to leave the campus or be arrested for criminal trespass" policy (followed by a due process hearing for temporary or permanent expulsion from the institution) would be a good immediate response. Then use the Clery Act for individual cases of threats to safety and the hostile environment arguments articulated by Prof. Dershowitz for individual student cases. Any thoughts on this?
You have focused on the demarcation between free and non-free speech, showing an admirable respect for the protection of free speech, even if it is noxious. I must agree with that.
The line between free speech and assault is crossed when offensive speech is aggressively directed at its target. Even more so if it is done in such a way as to imply an escalation to violence may be imminent, and that such violence would be justified. This is exacerbated further if the victim is prevented from removing themselves from the encounter by being obstructed or surrounded, and there is no doubt whatsoever if the aggressor engages in actual battery. All of these have taken place in universities.
In short, this is more about violence than speech - actual physical violence, not as in 'misgendering' some entity with day-glo hair, or Trumpian 'hurty words' on twitter. Physical violence.
In the light of this, it may be worth reviewing the approach taken by the SPLC when they successfully sued and bankrupted the organizations to which certain racially motivated attackers belonged, by arguing that they also had some agency in the crimes.
It may well be possible to show that institutions such as the universities, DEI departments, and student groups, have significant agency in encouraging, or even just facilitating such acts.
https://www.aporiamagazine.com/p/lawfare-vs-revolutionaries
"In 1987, Morris Dees of the Southern Poverty Law Center (SPLC) began using a new legal strategy to successfully sue hate groups for criminal acts of violence committed by their members. The judgements often bankrupted the defendant organizations. Dees’ strategy relied on agency theory, which asserts that an employer has legal liability for the acts of an employee when the employee performs their duties in line with the interests of the company. However, Dees applied agency theory outside of its traditional commercial context to non-profits and other organizations."
"[w]ith few exceptions, those most directly charged with confronting prejudice — Offices of Diversity, Equity, and Inclusion — have failed to stand with Israeli and Jewish students confronting the oldest prejudice of them all.”
This is a bizarre statement. DEI is not designed to reduce or confront prejudice. It's designed to be prejudice. It favors certain groups over others predicated upon skin color. It's purpose is to discriminate. What planet is Secretary Summers living on? Where has he been for the past forty years?
Does he not understand the postmodernist neo-marxist position? They've made it quite clear.
Alan, during the Bush administration, Bill O'Reilly had a news segment called "The No Spin Zone". In one episode , he explained as to how the educational system was becoming anti American and out of control. Yet, no one paid attention , nor bothered to check if this was true or not true. So , here we are . The fact is that when a person tells the truth, 99 % of the population will not listed , nor desires to listen. In our society, Americans practice crisis management, instead of preventive management .
So, is it then legal for the KKK to protest for the killing of all minorities ?
Excellent summation.
You are correct and I agree.