[Eugene Volokh, February 5, 2008 at 7:25pm] Trackbacks
ACLU of Massachusetts Condemns Brandeis University

in the Hindley "wetback" matter.

Related Posts (on one page):

  1. ACLU of Massachusetts Condemns Brandeis University
  2. Better Not Denigrate Religions / Disabilities / Veteran Status / Sexual Orientation / Etc. at Your University:
  3. Calling Brandeis Professors and Students:
  4. Saying "Jehovah" at Brandeis?
  5. Don't Say This, I Won't Tell You What:
  6. Brandeis University Trying To Discipline Professor
Visitor Again:
An excellent statement from the ACLU's Massachusetts branch, making it plain that its condemnation of racial and ethnic hostility in the school environment does not detract from or undercut its commitment to free speech and due process.
2.5.2008 9:51pm
Aeon J. Skoble (mail):
About time!
2.5.2008 10:05pm
DavidBernstein (mail):
I'd respect the Mass. ACLU a lot more if they hadn't included in their press release an extremely tendentious account of the Carter incident at Brandeis. In brief, Carter demanded over $50K in fees and expenses to speak at Brandeis. Brandeis responded that if we're going to spend that much, we don't want this to be part of your book tour, but an academic event, i.e., a debate. Carter refused to debate. Brandeis said, then don't expect us to put up $50,000+. Where's the violation of free speech?
2.5.2008 10:09pm
Brandeis Alum:
Carter did not require any fees--he spoke for free. The costs at issue were for security around the event, which approached $100,000. (The other "costs" were that the school thought that they would lose donors if Carter came, but that's another matter.) It is worth noting that the issue of security costs did not come up when Pres. Clinton came to campus in December.
2.5.2008 10:26pm
Oren:
As an attendee at both events, I think they could have cut their security apparatus in half and still been fine. From the looks of if, they were expecting an all out assault by a squad of heavily armed soldiers (as opposed to a college full of liberals). It seemed at times like there were more goons than students . . .
2.5.2008 10:35pm
Waldensian (mail):

Brandeis said, then don't expect us to put up $50,000+. Where's the violation of free speech?

Of course there's no real "violation of free speech" here as most people understand that phrase. Unless Brandeis has gone public on us.
2.5.2008 11:06pm
CDU (mail) (www):
Of course there's no real "violation of free speech" here as most people understand that phrase. Unless Brandeis has gone public on us.
I would say that there is a "violation of free speech" here. The First Amendment may be limited to protecting against government action suppressing speech, but freedom of speech is an underlying moral principle that goes well beyond this limited protection. While someone may not have a constitutional remedy when a private actor restricts their speech, it still violates the principle of freedom of speech.
2.5.2008 11:34pm
Visitor Again:
I would say that there is a "violation of free speech" here. The First Amendment may be limited to protecting against government action suppressing speech, but freedom of speech is an underlying moral principle that goes well beyond this limited protection.

Precisely. And in the university setting, free speech principles coincide with principles of academic freedom, which govern whether or not the academic institution is a state actor.
2.5.2008 11:48pm
Elliot123 (mail):
"The First Amendment may be limited to protecting against government action suppressing speech, but freedom of speech is an underlying moral principle that goes well beyond this limited protection."

What is the underlying moral principle of freedom of speech? Can you tell us how it applies to private individuals or organizations? Are they required to let anyone who chooses use their property as a forum? Am I violating someone's freedom of speech when I kick him off my front steps while he is orating?
2.5.2008 11:49pm
therut:
What happened to the private freedom from speech. If I do not want to listen to you privately I do not have to. Talk about freedom of speech absolutists.
2.5.2008 11:50pm
Waldensian (mail):

While someone may not have a constitutional remedy when a private actor restricts their speech, it still violates the principle of freedom of speech.

But this alleged private "principle of freedom of speech" is of course meaningless.

For example, who exactly is entitled to this alleged freedom to spout off free of interference by private actors? Would it violate this "principle of freedom of speech" for a seminary to fire an employee who constantly proclaimed that God was fictional? What about the seminary's right to proclaim the truth of its religion?

When two opposing protest groups are shouting each other down, is each group violating the other's right to free speech? Something's got to give.

True, if a private university purports to believe in academic freedom and free inquiry, the university can justifiably be criticized when it stifles free expression. But calling the situation a "violation of free speech" is either hyperbolic or a complete devaluation of an important constitutional phrase.
2.6.2008 12:02am
Waldensian (mail):

And in the university setting, free speech principles coincide with principles of academic freedom, which govern whether or not the academic institution is a state actor.

I don't follow this. Are you saying that principles of academic freedom mean that a stifled professor has a constitutional claim against a private university?
2.6.2008 12:05am
David Schwartz (mail):
We can justifiably condemn private actors when they engage in discrimination whether or not we think any laws should have been or actually have been violated.

Even a person who believes private actors should have the legal right to discriminate on the basis of race in housing and employment may justifiably strongly condemn those who do so.
2.6.2008 12:20am
CDU (mail) (www):
For example, who exactly is entitled to this alleged freedom to spout off free of interference by private actors?
Everyone.

Would it violate this "principle of freedom of speech" for a seminary to fire an employee who constantly proclaimed that God was fictional?
If they fired him because of the content of his speech, as opposed to "constantly spouting off" that would have been disruptive regardless of his content, yes.
What about the seminary's right to proclaim the truth of its religion?
If this militant atheist seminarian attempted to prevent others from proclaiming the word of god, then he would be violating their freedom of speech.

When two opposing protest groups are shouting each other down, is each group violating the other's right to free speech? Something's got to give.
To the extent that they are trying to prevent the other group from speaking, rather than present their own views, yes. If the two groups cannot work out a way for both of them to voice their opinions without drowning out the other side then they are both in the wrong.
2.6.2008 12:49am
David Schwartz (mail):
What about the seminary's right to proclaim the truth of its religion?

What about it?

I may have a right to privately believe that black people are inferior to whites. I may have a right not to privately associate with black people.

People have the right to do many things that everyone can justifiably criticize them for doing. It is never a defense to this kind of criticism to say "I was acting within my rights". That's only a defense to a legal argument.
2.6.2008 4:49am
Visitor Again:
And in the university setting, free speech principles coincide with principles of academic freedom, which govern whether or not the academic institution is a state actor.

I don't follow this. Are you saying that principles of academic freedom mean that a stifled professor has a constitutional claim against a private university?

Who said anything about claims or lawsuits? I'm talking about free speech and academic freedom as valuable concepts quite apart from whether or not they are found in the Constitution and whether or not they are legally enforceable. If one concedes, for example, that free inquiry and free expression are important to progress, to learning, it should be apparent that free speech and academic freedom have a value quite apart from whether they are legally enforceable as constitutional rights.

I imagine some free speech and academic freedom principls are enforceable against private academic institutions by way of employment agreement or contract law. There once was a movement towards developing a common law of rights belonging to individuals within private organizations. It began with procedural due process rights, and I don't know how far it went in terms of substantive rights. It seems to be a dead letter now; I haven't heard or read about it for decades.
2.6.2008 6:06am
DavidBernstein (mail):
Universities have limited resources. I don't see that President Carter had anything to say that would justify paying the annual salary of a professor to have him speak. I think Brandeis was beign generous to offer the debate. Maybe I should get some students to invite me to Brandeis, and cry censorship when the university won't pay me 10K (actually, I was once invited to speak at Brandeis, and the students said they had a $400 budget, which I pointed out wouldn't even cover my airfare, hotel, and taxi expenses, so I declined--I didn't realize my free speech was violated!).
2.6.2008 8:22am
DavidBernstein (mail):
Universities have limited resources. I don't see that President Carter had anything to say that would justify paying the annual salary of a professor to have him speak. I think Brandeis was beign generous to offer the debate. Maybe I should get some students to invite me to Brandeis, and cry censorship when the university won't pay me 10K (actually, I was once invited to speak at Brandeis, and the students said they had a $400 budget, which I pointed out wouldn't even cover my airfare, hotel, and taxi expenses, so I declined--I didn't realize my free speech was violated!).
2.6.2008 8:22am
DavidBernstein (mail):
BTW, I guarantee you that most of the professors who raised the biggest fuss about Carter would have protested with all their might if Brandeis had laid out 100K to invite Reagan or even Bush I to speak on campus.
2.6.2008 8:25am
Waldensian (mail):

We can justifiably condemn private actors when they engage in discrimination whether or not we think any laws should have been or actually have been violated.

Even a person who believes private actors should have the legal right to discriminate on the basis of race in housing and employment may justifiably strongly condemn those who do so.


I don't disagree with this at all. I just think calling Brandeis's actions a "violation of free speech" is hyperbolic and misleading.
2.6.2008 9:59am
Waldensian (mail):

If one concedes, for example, that free inquiry and free expression are important to progress, to learning, it should be apparent that free speech and academic freedom have a value quite apart from whether they are legally enforceable as constitutional rights.

Of course, but you said that:

free speech principles coincide with principles of academic freedom, which govern whether or not the academic institution is a state actor.

Which makes no sense to me at all. Can you explain this to me?
2.6.2008 10:02am
Waldensian (mail):

There once was a movement towards developing a common law of rights belonging to individuals within private organizations. It began with procedural due process rights, and I don't know how far it went in terms of substantive rights. It seems to be a dead letter now; I haven't heard or read about it for decades.

I am not familiar with this -- what time period are we talking about, and who was involved in this movement?
2.6.2008 10:03am
Waldensian (mail):

People have the right to do many things that everyone can justifiably criticize them for doing.

Of course. And it is hardly a "violation of free speech" to criticize such people.
2.6.2008 10:05am
Visitor Again:
Of course, but you said that:

free speech principles coincide with principles of academic freedom, which govern whether or not the academic institution is a state actor.

Which makes no sense to me at all. Can you explain this to me?


If your problem is my use of "governed," try asking Brandeis whether, even though it is not a state actor, it adheres to principles of free speech and academic freedom. Reputable academic institutions at the college level generally consider themselves governed (bound) by those principles, or at least they go to considerable lengths to claim that they adhere to them. That's why there's a fuss about what happened at Brandeis.
2.6.2008 12:24pm
MDJD2B (mail):
Private actors may, of course, restrict freedom of speech any way they like. If my rabbi converted to Christianity and started giving sermons consistent with this conversion, then of course the synagogue would be within its rights to fire him. If a libertarian club were infiltrated with socialists(or vice versa) whose purpose for joining was to give speeches agains tthe organizatoin's purpose, of course it would be reasonable for the club to expel the dissenter.

Private organizations are not speech forums. They are organized for a purpose, and they have a right to restrict speech that is disruptive to or incompatible with that purpose.

The problem with this sort of thing at universities is that they ostensibly value and promote the free exchange of ideas. But they, too, can draw limits, especially if the speaker is sufficiently notorious that his presence on campus creates a security risk or major expenses for the university. There is nothing wrong with criticize the university for restricting speakers' access to a forum at the university, and the institution is the best judge of whether allowing a particular event is compatible with its mission.
2.6.2008 12:59pm
Jim-Jim:
Here's my favorite part of the post: When someone says "conservative speech," the Communications Manager of the Massachusetts ACLU immediately replies "Nazi rally." As proof of his helpfulness and open-mindedness.

Now before I go polish my jackboots, I must ask: if that's the official public face of the ACLU, how do they expect to get any help or support from non-lefties?
2.6.2008 1:12pm
Colin (mail):
Of course, just two comments down from the one you cite, the same person clarified that his point "was that the ACLU doesn't only defend liberal viewpoints, as the first comment suggested, or viewpoints that we like or agree with."
2.6.2008 7:13pm
David Schwartz (mail):
I agree that using the term "violation of free speech" is a bit confusing. What is meant, I think, is that it is conflict with the principles of freedom of speech. If a university, for example, goes out of its way to accommodate speakers with one point of view and goes out of its way to make things difficult for speakers on the other side, that would be a violation of this principle.

A university should consider neutrality towards the expression of both sides of an issue to be of value, even when it institutionally takes a side in an issue.

For example, I strongly oppose the teaching of creationism in public schools. But if I operated a University, I wouldn't suppress one side of the debate or favor the other.

Why? Because if the debate is unimportant, I have no rational reason to favor people who agree with me. And if the debate is a live and important one, and I believe one side has the stronger view, I benefit from an unbiased hearing. And who knows, maybe somebody will convince me I'm wrong. If I'm so sure I'm right, why would I not support a fair hearing?
2.6.2008 7:47pm
Elliot123 (mail):
The criticism appears to be aimed at private actors who do not provide resources for someone who thinks he has something important to say. I doubt anyone cares what the guy says in the park or on the street corner; they just don't choose to expend resources to help him.

I'd still like someone to tell us what is meant by "underlying moral principle of freedom of speech." Anyone care to take advantage of the resources Mr. Volokh has generously provided for our free exchange?
2.6.2008 10:52pm
Jim-Jim:
Colin, I assume you're addressing me? Sure, I saw Chris Ott's clarification. I'd be pretty lazy not to take the five seconds needed to read it, right?

I'd also be pretty lazy not to take the sixty seconds needed to dig a little deeper (You did the same, too, right?) and Google Ott's other writings. The guy has it in for republicans/conservatives, he tends to conflate the sane ones with the insane, and he tends to overreact.

Examples: Ott has written that the GOP makes him want to flee America. Not the Illinois Nazis, not the Fred Phelpsoids, not any other fringe group, but the plain-vanilla GOP. Or here, where Ott decries the "deep prejudice," "bigotry," "mean-spiritedness," and lack of "fair-mindedness" of voters who *gasp* disagreed with him.

Basically, I think Ott let the mask drop for an instant. It's not that big a deal. I'm not saying Ott is a bad guy, and I'm not saying I oppose the ACLU. They did good work in this case. But I think it bodes ill for the broader cause of civil rights if the ACLU further alienates potential GOP/conservative allies. How can the American Civil Liberties Union expect to win wide support when their own mar-comm people complain -- in print, for pay -- that the GOP makes them seriously consider abandoning America?
2.7.2008 11:20pm