| Three recent disputes (seemingly unrelated to each other)—that involve controversial speech by members of higher education communities around the United States—highlight a crucial question that needs more systematic attention: when can a public university punish students or faculty for engaging in personal expression that is deemed “disruptive” of university operations? | | The first episode (about which one of us, Amar, wrote an earlier column) involves a social media posting by a University of Florida law school student (Preston Damsky) stating that “Jews must be abolished by any means necessary.” After one of the school’s Jewish faculty members engaged the student online to inquire whether he wanted to do harm to her and her family—and the student didn’t unequivocally disclaim any such intention—the law school suspended him for his speech, which the school thought members of the community might reasonably construe as a disruptive threat that is regulable under Supreme Court cases such as Counterman v. Colorado and Tinker v. Des Moines Independent School District. After a district court (whose reasoning Amar found flawed) granted Damsky a preliminary injunction blocking the suspension, a divided panel of the Eleventh Circuit earlier this month vacated the preliminary injunction and allowed the school to suspend Damksy as the case moves forward. | | In the second dispute, the United States Court of Appeals for the Ninth Circuit last month reversed a district court ruling that had upheld the decision by the University of Washington (UW) to punish professor Stuart Reges for statements he made on his class syllabus that mocked the University’s recommendations concerning so-called “land acknowledgement” statements that professors were encouraged to include in their class syllabi. The Ninth Circuit rejected UW’s claim that Reges’ speech—which the court characterized as private speech on a matter of public concern—could be punished because it was disruptive of university objectives and operations. According to the Ninth Circuit, which was influenced in significant part by concerns about a heckler’s veto, permitting the University, under the Supreme Court’s Pickering v. Board of Education line of cases, to punish Reges would silence minoritarian speech and create a problematic chilling effect. | | And the third episode, closer to home for the two of us, UC Davis (UCD or Davis) imposed sanctions on an assistant professor of American Studies, Jemma Decristo, for a social media posting, made shortly after the October 7, 2023 Hamas attack in Israel, that appeared to threaten “Zionist journalists who spread propaganda and misinformation [and who] have houses [with] addresses [and] kids in school . . . [and who] should fear us.” The posting, replete with emojis of a knife, a hatchet, and drops of blood, was claimed by Decristo to be satire, but UCD investigators found that the posting “caused a ripple effect of anxiety and increased burden on campus.” In the same vein, UCD’s Academic Senate Committee on Privilege and Tenure found that the speech had a “tremendously disruptive” impact on members of the UC Davis community. UC Davis Chancellor Gary May echoed these sentiments and observed that Decristo “failed to acknowledge the deep pain and significant disruption” she had caused. When news of the punishment went public, some free speech experts questioned Davis’s rationale, because (as one article in the Chronicle of Higher Education put it) “punishing someone largely because of how others have reacted . . . constitutes a 'heckler’s veto.’” As Nadine Strossen, past president of the ACLU, observed in the article: “It gives an incentive to people who disagree with her idea to call and complain.” | | With all due respect, we think that while the results (so far) in all three of these disputes are likely correct, some of the judicial analysis (particularly that in the Ninth Circuit ruling), and much of the criticism of UC Davis, is sloppy and problematic. While we think concerns about “hecklers’ vetoes” and “chilling effects” are important, we also think that disruption is a valid concern that university administrators can and should act on, and that the key question (which is already clearly codified in true-threat cases) is whether the reaction to speech that causes disruption is reasonable. If so, government can regulate the speech, but if not, the speech is fully protected and cannot be disciplined according to existing First Amendment doctrine. | | The Centrality of the Concept of Disruption | | Whether a situation falls under the Tinker framework that weighs student expressive interests against those of the school, or under the Pickering framework that evaluates public employees’ expressive interests against those of the public employer, or the Counterman v. Colorado true-threat line of cases, avoiding disruption to government operations and objectives and (relatedly) protecting individuals’ sense of safety and well-being are the central goals government is permitted to achieve. Although the various lines of cases use different terminology and don’t always appear to recognize the commonality of their analyses, at the end of the day, the key question is whether a speaker’s expression has interfered with the rights of public institutions and private persons to pursue their own legitimate objectives free from interference. | | Yet the Ninth Circuit majority in the UW satire case and many of the critics of the UC Davis disciplinary decision drastically undermine the importance and utility of this concern by buying whole-heartedly into the heckler’s veto argument—the idea that defining disruption by reference to how people describe their reaction to, and experience of, speech amounts to an impermissible empowerment of students and staff to silence professorial or student speech that offends them. | | As a rhetorical matter, one can have some sympathy for the heckler’s-veto argument. In an excruciatingly polarized world, the argument has bipartisan potential insofar as resort to the argument could offer protection of speech that listeners find offensive from either the Left or the Right. Conservative professors and students promoting free markets, traditional gender roles, and mass deportations by ICE agents could not be sanctioned, however offensive their views might seem to others. And liberal professors and students would be free from university constraints on their classroom speech endorsing DEI, supporting LGBTQ rights, and arguing that systemic racism permeates our society. If speech offending Native Americans in the classroom is not grounds for restricting professorial speech, then speech making white students feel guilty about racism would also not be sufficiently disruptive to support disciplining professors. | | But as a doctrinal matter, an argument relying on the fear of a heckler’s veto to refute all claims of disruption has to be wrong. Standing alone, and taken to its logical conclusion, embrace of the argument would mean that nothing a professor (or student) says (as opposed to does) could ever be punished, since (as elaborated below) the problematic consequences of speech that is deemed unprotected (threats, incitement, libel, etc.) always involve reactions by listeners. The reality is that speech doctrine must take account of how speech affects other persons in deciding whether the speech is insulated from punishment or instead can be regulated based on its content. | | That is why the heckler’s veto argument, stated in the extreme form embraced by the Ninth Circuit and UC Davis critics, cannot explain or coexist with accepted free speech doctrine more generally. In determining whether speech is protected or unprotected, or whether a regulation of speech should be upheld under applicable standards of review, courts necessarily look to the assertions of third parties about the nature of, and harm caused by, the speech at issue. Consider, for example, the way courts deal with threats. The foundation of a finding that speech constitutes a proscribable threat is that some individual or group experiences the speech as threatening. It is difficult to imagine a state prosecuting a speaker for issuing a threat if it was clear that no victim would feel threatened by the speaker’s message. | | To be sure, there might be some understandable concern about a heckler’s veto if all assertions of actual disruption or actual feelings of being threatened sufficed to establish proscribable disruption or unprotected threats. But the issue in these cases is not whether any or all assertions of disruption (or threats) carry the day. Characterizing the question presented by these episodes this way sets up a straw-man argument. Courts countenance only reasonable assertions that speech constitutes disruption or a threat. That objective reasonableness requirement substantially mitigates and neutralizes worries about a heckler’s veto. That is why we think the Ninth Circuit result is probably correct, even though the court’s reliance on heckler’s-veto reasoning is overwrought. Professor Reges’ speech was protected not because he had a right to provoke any reaction he desired; his speech was protected because, given his obvious satirical and non-threatening tone, any disruption created by people’s reaction to it would not be based on reasonable concerns of harassment, discrimination, or violence. | | If speech that causes reasonable people to be disrupted were not punishable, as an undue concern about hecklers’ vetoes might well command, even a foreseeable and fully reasonable disruptive reaction to a speaker’s comments could not form the basis of regulation. Imagine, for example, a public university professor in his syllabus decries race-based affirmative action, proclaiming his belief that Black students enrolled in the university do not really belong at the school because their intellectual capacity is limited, their academic preparation is inferior, and they, as a group, are incapable of handling the workload required for success at the university. Imagine further that, as a result, students (both Black and White) boycott the professor’s classes, based on the reasonable concern that Black students would not get a fair evaluation of their coursework when they are graded in his classes, which lack blind grading. Ultimately, no one enrolls in any of his offerings. Could it be that the University could not punish (or remove) him simply because the disruption he has caused is the result of listeners’ reactions to his speech? | | We think the Eleventh Circuit’s analysis in Damsky (which found that Damsky’s speech could reasonably be construed as sufficiently threatening as to be disruptive under Tinker), reflects a better approach to a disruption analysis (than the Ninth Circuit’s more absolutist stance). A similar analysis supports the disciplinary actions of the UC Davis administration insofar as Decristo’s assertions of satirical intent don’t square with the way people would reasonably construe her violent words and emojis. In both episodes, contentions of those who claim to have experienced disruption are relevant and probably required, but those subjective reactions are not in and of themselves dispositive. Instead, assertions of disruption must be (and were) reasonable in the circumstances, in context, for discipline of the speaker to be sustained. | | We do not suggest that a disruption analysis will be easy to apply. And, indeed, the uncertainty of predicting what could be sanctioned as disruptive speech is a serious and somewhat unavoidable cost to the implementation of this standard. What counts as a reasonable listener’s disruptive reactions will vary depending on the setting and the community involved. Grammar schools may be different from high schools, which in turn are different from higher education settings. But here are some factors that courts should consider in applying this standard in a university setting, in particular—the setting of the three episodes we recount. | | Concerns about disruption might be more plausible, for example, in some of the following circumstances: there are ongoing protests that violate legitimate time, place, and manner regulations, such as obstructing access to buildings or shouting down speakers, where speakers’ exhortations take place against that backdrop; speaker language that implies a risk of harm to homes, families, and children; speech that is directed at specific, identifiable individuals. | | By contrast, concerns about disruption seem less reasonable, for example, in these circumstances: speech is expressed in a classroom that is germane to the subject matter of the course; messages are expressed in a context, classroom or otherwise, that provides ample opportunity for civil debate; protests and other forms of dissent that comply with legitimate time, place, and manner regulations; speech that, while offensive, does not involve threatening or inciteful language, and is not directed at particular individuals; speech that is expressed off-campus that only incidentally relates to on-campus activities or persons. | | To say that certain speech, because of its disruptive effect based on reasonable and reasonably foreseeable reaction by listeners, can be regulated is not to say that all such regulation is permissible. There are also legitimate questions about what would be an appropriate disciplinary response to speech that is found to be disruptive under either Pickering or Tinker. Those decisions will also necessarily depend on the context of the expressive interaction. But those matters are beyond the scope of our observations today. |
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