The Free Speech Chilling of Free Speech Protests

As some of you know, there's been a bunch of controversy recently about the "free speech culture" at Yale Law School, and particularly whether the school is hospitable to conservative speech. Several conservatives have argued that particularly raucous protests that have targeted conservative speakers have crossed over into effective censorship, negating Yale's claim to be a place where diverse views can be discussed.

On that note, David Lat reports on a recent talk at Yale given by an attorney for the right-wing, anti-LGBTQ group Alliance Defending Freedom (on a panel with former ACLU head Nadine Strossen and Yale Law Professor Robert Post). By all accounts, the talk, which had approximately 100 attendees, went off without a hitch. Far from the abuses of the past, this time there was not, in Strossen's words, "even a peaceful protest."

Now, I want to be very careful in articulating what I say next. I'm not a "protest" guy. I don't enjoy going to them, I don't find them especially inspiring even when I agree with them, and I'm probably predisposed to think of them as unreasonable. And I'm fully willing to believe that in the past some forms of "protests" at Yale (e.g., I don't think that protesters can be permitted to "shout down" views they disagree with).

All that said, it is also an element of free speech culture to permit some forms of peaceful, minimally disruptive* protests. Students quietly holding signs, or passing out flyers, or even booing the speaker when she's introduced -- those, too, are exercises of free speech, the protection of which is important just as protecting the ability of dissident speakers to come to campus and have a genuine, practical ability to present their views is important.

So when I read that there wasn't "even a peaceful protest", well, obviously one explanation for that is that no Yale students felt moved to protest this speaker, or that they were busy with other things. But given that this speaker is exactly the sort of figure who had been raucously protested in the past, and that presumably there are still a fair chunk of students who probably continue to deem her protest-worthy, what does it signify that no protest occurred? It seems highly likely that the steps Yale has taken to discourage illegitimate, censorial protest (and again, I'm inclined to think that there are such protests and Yale is right to tamp down on them) have had the additional chilling effect of deterring legitimate, non-censorial protest.

The conservative journalist who quoted Strossen as saying there were no "peaceful protests" also reported that "there were no ear-shattering chants, no profanity-laden signs, and no ad hominem questions." The first of these might be validly limited as a "shout down." The latter two, however, don't seem procedurally inappropriate (though of course one can agree or disagree with their on-the-merits substance). Free speech protects the right of attendees to have signs with profanity on them. Free speech protects the right of audience members to ask harsh or hostile questions. If those, too, were eliminated, then it seems Yale didn't just ban illegitimately disruptive protest; it also functionally squelched perfectly legitimate, normal forms of protest. As one sort of speech avenue opened, another closed.

The laudatory tone of the articles I've read praising Yale for successfully hosting this speaker suggest, however, that this ebb of free speech culture is not viewed as significantly worrisome. And perhaps the problems are not in equipoise -- one might think that obstructing invited speakers from presenting via "shout downs" is a more serious violation than deterring peaceful protests of speakers via perhaps overbroad or heavy-handed administrative initiatives. But it still worth recognizing that there appears to have been a free speech cost here as well as a benefit. A healthy free speech culture at Yale absolutely must allow speakers of diverse views the realistic, non-nominal opportunity to present their arguments. But such speakers are not entitled to be free from the normal pushback and protest that is also part of a culture of free speech. If the pendulum at Yale has swung so far back as to eliminate the latter, that cannot be deemed an unmitigated victory.

* Why "minimally disruptive"? Some take the view that any sort of "disruption" of a speaker's talk, even if de minimis, represents a form of censorship. This seems untenable: normally audience reactions like booing a poorly received point would fall into this category -- a speaker probably has to temporarily pause and regroup until the booing dies down, and so is "disrupted" -- but that can't be the standard for governing whether the speaker has functionally been obstructed from speaking.  On the other hand, some argue that protests are by their nature meant to be disruptive -- considerably more so than "minimally" -- which is what makes them a protest. I don't necessarily disagree with that point, but what I would say is that a protester who takes that approach is consciously refusing to submit to or cooperate with the prevailing legal or governance structures (that, again, is implicit in the disruption) and so cannot truly complain when those structures refuse to cooperate back (e.g., by imposing various forms of sanctions). "Minimally disruptive" I think walks the line appropriately.