- - Wednesday, October 25, 2017

From Berkeley to Charlottesville, college campuses have become a flashpoint for protests on a scale we have not seen in decades. At the Foundation for Individual Rights in Education (FIRE), where I work, our mission is to protect the rights of students and faculty on these campuses. We receive numerous complaints every year about how campuses handle controversial speakers as well as students’ responses to those speakers.

Some campuses have handled these situations better than others. From those experiences, here are five lessons that can help campus administrators make decisions when faced with a controversial event.

1. Have a lawful policy in place before there is an event request. Just as “hard cases make bad law,” ugly permit requests make bad policies. The risk of acting unconstitutionally or restrictively in the face of a request from a “hate group” is exponentially higher if your employees are making up the rules as they go along. It is much safer, legally speaking, to have a well-written policy and follow it.

As part of our work at FIRE, we review the speech-related policies of colleges and maintain a database with a simple, traffic-light-inspired red/yellow/green rating system. A list of schools with “green light,” constitutionally sound policies is available on FIRE’s website. One thing you will notice is that these policies don’t have to be long or go into a great level of detail; they need only set forth the guiding principles for the decision-making process.

2. Accept that security will cost money and that is part of protecting civil rights. Civil rights, including free speech, are expenditures. It costs the government money to provide lawyers for the accused, to hold elections, and to provide a tax exemption for religious organizations. We choose to provide these things, however, because we prioritize liberty over institutional efficiency. If you are an institution that purports to protect civil rights (public or private), that protection is occasionally going to come with a price tag.

Perhaps the biggest difference between colleges that successfully host controversial speakers and those that become cautionary headlines is their willingness to invest in adequate policing. If, for whatever reason, an event on your campus is likely to bring thousands of participants and protesters, it should be policed at a level at least equal to a sporting event that brings thousands of fans. To throw up your hands and leave safety up to the protestors is a plan calculated to turn your institution into cable news fodder for the next several months, and worse, suggests an indifference to the well-being of your community.

3. Remember: organized protests are a form of speech, and speech is not violence. It is popular in some academic circles to rationalize that the suppression of protest on campus is justifiable because some protests include hateful ideas, and hateful ideas inflict a “form of violence” on the groups they target. This statement is wrong, has no basis in law, and cannot immunize an institution from a legal challenge.

The entire model of Western democracy hinges on the idea that violence is unnecessary because speech alone will determine which ideas are worth preserving. Speech only loses First Amendment protection when it rises to the level of one of the few, narrowly drawn exceptions such as incitement or true threats.

4. Before making or enforcing any restriction on protests at a public institution, ensure the rule is viewpoint-neutral, necessary for a compelling reason, and leaves open alternative methods of engaging in the same expression. This is a layman’s restatement of the test courts use to weigh whether an institution’s speech restriction is a valid regulation of the “time, place, and manner” of speech. For example, if there’s a particularly narrow street that students must use to walk between school buildings, a college would likely be justified in requiring protesters to stand on an adjacent street that is larger or less well-traveled.

But to be permissible, these rules must be applied equally to all requesters, regardless of viewpoint. An institution cannot have one set of rules for a Mardi Gras parade and another set for white nationalists, for example.

The rules must also be necessary to achieve some compelling government interest and leave open some alternative that permits the protesters to achieve the goal of the protest. And remember, these restrictions only permit the institution to shift the protest enough to achieve the government’s interest, and then only if the protesters’ goals are still met. If you want to move the protest to a street so far from the event that the protesters can’t be seen and heard by attendees, your restriction is unconstitutional, because it frustrates the entire purpose of the protest.

5. If your institution has specific, identifiable evidence that an event is going to create a substantial risk of a physical disruption, that may justify postponing an event until those risks can be addressed. The simplest example might be a speaking engagement that seemed noncontroversial at first, but became controversial shortly before it was held, leading to some verifiable threats of violence that law enforcement authorities find to be credible. If these threats are far more likely than not to take place (based on some evidence the university can publicly share), the institution may be justified in canceling the immediate event.

The important thing to understand is that an institution compelled to take this stand will avoid much of the potential backlash by making clear it intends to ensure the event can take place at a future date and by starting the planning process to hold that event safely in the future. Your institution’s commitment to free speech and academic freedom is not something it should surrender to any heckler’s veto or threat of disruption. Instead, a university should ideally identify the risks, plan to mitigate them, and move forward.

Remember, tranquility is not the natural state of education. Students are constantly being confronted with new ideas while bringing their own to the table. Sometimes, that clash takes place with signs and chants. It is not meant to be comfortable; it is only meant to be preferable to the alternatives, none of which look like democracy.

Adam Goldstein is a Robert H. Jackson Legal Fellow at the Foundation for Individual Rights in Education and a co-author of the textbook Law of the Student Press.

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