WASHINGTON (CN) – No one was injured last week when a campus protest against white nationalist leader Richard Spencer ended in gunfire, but the growing number of free-speech clashes in higher education drew a critical eye Thursday by Congress.
“When does protected speech cross the line to unprotected incitement of violence?” asked Sen. Maggie Hassan, D-N.H., this morning at a meeting of the Senate Committee on Health, Education, Labor and Pensions.
Southern Poverty Law Center president Richard Cohen laid out the issue for the committee in the context of the deadly rally white supremacists held in Charlottesville, Virginia, on Aug. 12.
“Clearly, incitement has a very precise legal meaning under the Constitution,” Cohen said. “Incitement to imminent lawless activity, there could be evidence of that [in Charlottesville]. But the bravado, the [talking about it] in advance, that’s not enough.”
Spencer had participated in that rally as well, and Virginia Sen. Tim Kaine scoffed Thursday at the pretense that those rallying in Charlottesville were defending Confederate statues.
Cohen noted that those who celebrated the killing of counter-protester Heather Heyer in Charlottesville can look to the Constitution for protection as well.
Even something that ugly “is clearly not enough,” Cohen said, “and the Supreme Court [said] that in its Rankin v. McPherson decision.”
In that 1987 ruling, the high court found that government employees who make an inflammatory threats against the president are engaging in protected speech, so long as these employees have no real influence on policy and minimal public interaction in their official roles.
Robert Zimmer, president at the University of Chicago, testified before the Senate on Thursday about his efforts to uphold the First Amendment for all parties while keeping campus safe for everyone, regardless of their political persuasion.
The key, Zimmer said, is “recognizing these acts for what they were.”
Zimmer contrasted those who want to share an opinion that might be unsavory at a college against those who want to reinforce the message by “weaponizing” themselves.
“You have to really ask, what is the message that is being delivered,” Zimmer said.
“If someone invites you, come,” he continued. “Speak. Let people ask questions. We won’t pass judgment on what you’re saying, but you cannot stand there with weapons that carry implicit threat.”
Sen. Elizabeth Warren, D-Mass., cautioned against the prophylactic repression of unpopular speech, like the “spouting of fake science” — a point that Cohen at the Southern Poverty Law Center echoed.
“Look, we make progress as a country by having ideas tested,” Cohen said. “By having critical thought applied to ideas that are expressed in every realm of life. The Supreme Court has recognized the importance of robust debate. It’s a bedrock principle of our country, and we would be much worse off if a university president or anyone could censor the speech of others simply because they disagree.”
One sticking point in the free-speech debate, Zimmer noted, is cost.
Before gunfire erupted at the University of Florida last week, for example, the school had spent $600,000 for security during Spencer’s visit.
“Part of the issue is you see these things on every side, and the [cost of hosting these people] is complex,” Zimmer said. “And we don’t have that fully figured out yet to tell you the truth.”
Sen. Michael Bennet, D-Colo., told the committee that President Donald Trump is engaging in a similar vein of censorship with his ongoing attacks on the press.
Nadine Strossen, a professor of law at New York Law School in Manhattan, said there are teachable moments there as well.
“The reaction it is causing, at least, is as much galvanizing to the opposition as it is energizing the people who respond to the allegations he’s making, and [brings them] to the defense of the critical role journalism plays,” she said. “As Thomas Jefferson said, dissent is the highest form of patriotism’ and we should be educating students from the beginning to fully inform themselves … to discover information and pick holes in what used to be the truth.”
Sen. Patty Murray, D-Wash., told fellow senators to focus on protecting constitutional rights while also ensuring that institutions of higher remain learning places where everyone can feel safe and have access to education.
“As a part of that conversation, we need to discuss with elected leaders and school administrators how they can best exercise their First Amendment right to do everything in their power to look out for those who are driving an agenda of racism, bigotry, xenophobia or misogyny,” Murray said.