Consistent Enforcement of Campus Speech Rules? No, Disparate Treatment!

David Bernstein replies to an Amnesty International/ACLU report decrying crackdowns on pro-Palestinian speech on campus. The report particularly hangs its hat on the issue of double-standards: many of the "rules" pro-Palestinian activists were alleged to have broken were ones the university rarely if ever enforced when flouted by other activists and protesters.

Bernstein concedes that there "is some truth to that conclusion," but ultimately dismisses the "claim that alleged viewpoint discrimination required universities to stand down, for three interrelated reasons." But of these three reasons, two are manifestly unpersuasive. The third, by contrast, has some force but is considerably more limited in scope than he lets on.

Here's objection number 1:

First, arguing some sort of estoppel for cracking down on rule-breaking is a bad legal argument. "But your honor, the government did not prosecute the last ten rapists" isn't going to get you far.

This is a baffling argument to make in the context of free speech in particular. The entire point of the rule against viewpoint discrimination is that it nullifies government actions* even in circumstances where a content-neutral rule, evenly enforced, would be perfectly justified. Bernstein's objection is tantamount to saying that entire doctrine against viewpoint discrimination should be jettisoned.

It's notable that to make this argument even marginally plausible, Bernstein has to reach to an extreme example (rape), one where we cannot imagine a well-ordered society permitting the conduct and "leveling down" is not an option. Of course, the overwhelming majority of speech-rule violations are more analogous to civil infractions or misdemeanors at most, for which systemic under- or nonenforcement is an entirely plausible policy choice. If we adopt the hypothetical to a more analogous example -- a "no parking" sign that is routinely ignored, but suddenly gets resurrected to only tow away cars at the Trump or Harris rally, then I think the "estoppel" argument might get you pretty far indeed. And all the more so in the core speech-regulation context, where the rule demanding viewpoint neutrality is about as central a lodestar as exists in First Amendment law.

Now objection number 2:

Second, the failure of universities to properly punish misbehavior by, say, climate activists was itself viewpoint discriminatory. One can hardly imagine, say, Columbia University, acting with equanimity if anti-abortion or anti-affirmative action protestors engaged in the illicit shenanigans that leftist protestors have engaged in.

This argument drives me nuts, because it asserts as fact something it admits is speculation. The failure to regulate climate activist speech was viewpoint discriminatory because we can't imagine the same administrators wouldn't have punished conservative activists for similar behavior. A version of this argument was trotted out by the conservative judges advocating an academic boycott of Columbia, and I hated it there too: 

It has become clear that Columbia applies double standards when it comes to free speech and student misconduct.  If Columbia had been faced with a campus uprising of religious conservatives upset because they view abortion as a tragic genocide, we have no doubt that the university’s response would have been profoundly different. 

Again, note the assertion that Columbia flatly has adopted a double-standard, based not on anything it actually did, but on how its critics imagine it would have behaved in a hypothetical-but-not-actually-real scenario ("if ... we have no doubt"). Columbia is being punished for a story the judges literally invented so they can be mad about it.

Of course, since the argument by its terms doesn't require grounding in reality, it is absolutely impossible for a university to rebut it. And I'll say flat out that I'm not at all convinced that universities have applied or would apply a "double-standard" in such cases. When David Horowitz started plastering campuses with flyers targeting student pro-Palestinian activists as "Jew-haters" (cf., recent posters at the University of Oregon assailing the campus Hillel director), I don't recall there being any attempt to impose consequences on campus constituents who may have taken part, even though I have no doubt that a diligent administrator could've dug up some rule or another they were violating. Why not? Well for one, had they done so Horowitz and his backers would've thrown a fit about liberal censorship yadayadayada. But for two, if campuses hadn't historically enforced whatever rules limiting flyering in other cases, they'd be in choppy waters if they tried to suddenly start enforcing them against the likes of Horowitz. Which is to say, they abide by a rule against viewpoint discrimination.

Now, the final objection:

And finally, civil rights law require[s] universities to take action against illicit hostile environments. Climate change activists may have broken university rules, but they did not intimidate, harass, and engage in violence against any identifiable group protected by civil rights laws. 

This is the one objection that has some purchase. I agree with it insofar as I agree that otherwise-protected speech can nonetheless be probative of motive with respect to non-protected conduct. And I also agree that some defenders of the campus protesters have undersold or been apologists for aspects of the protest that were not simply inflammatory or offensive speech but were violent, harassing, or otherwise destructive.

But the reality is that the vast majority of campus pro-Palestinian speech -- even that which was understandably offensive, even that which formally may have violated university rules -- was not violent or harassing in a legally-cognizable way. The defense of universities cracking down on actual instances of actionable harassment is fine as far as it goes, but the more numerous instances of universities cracking down on non-harassing speech cannot justify itself via stolen valor. And while I'm not so naive as to think that people would stop being fair weather friends of free speech if universities didn't try to cloak the latter in the aura of the former, there's little doubt that the draconian hyperpolicing of protected speech did more to delegitimize legitimate university interventions than the instances of legitimate intervention did to justify the hyperpolicing.

* For purposes of this post, I'm treating all colleges as if they are akin to government actors, as many private universities at least purport to extend First Amendment-inspired free speech protections that are meant to guard against collegiate administrative overreach.