Monthly Archives: July 2017

Claremont McKenna College recently suspended three students for a year and two others for a semester for their protest of Manhattan Institute Fellow Heather MacDonald, author of The War on Cops and vocal critic of Black Lives Matter.

Claremont McKenna has taken a very harsh approach. This administrative action could have a chilling effect on future protests. Every student should have the ability to counter offensive, reprehensible speech with their own criticism.

But the school is not rebuking all students who exercise their First Amendment rightsonly those who choose to prevent others from assembling and speaking. And they're not denying students the ability to appeal or subjecting them to an arbitrary process: sanctions are decided by a three-person panel, and students may have as little or as much participation in the investigation process as they want.

And besides, how should a college clarify its commitment to free speech?

In early April, protesters blocked entrances to the auditorium where MacDonald was slated to speak. Since nobody could get through to the event, she spoke to an empty room and livestreamed her speech as students pounded on doors and windows, shouting and chanting.

MacDonald's academic conclusions are controversial. In a Fox segment following the protests, she summarized the core ideas in her book. "There is no epidemic of racially-biased police shootings, the Black Lives Matter narrative is completely false, and there are thousands of law-abiding residents of minority communities who are desperate for more police protection."

In her livestreamed speech, she challenged Black Lives Matter's premise "that the police are the greatest threat facing young black men today," while clarifying that "every police shooting of an unarmed civilian is a stomach-churning tragedy."

With its disciplinary action, Claremont administrators have sent a message that illiberal shutdown tactics are not tolerated on campus. In an official statement, college officials concluded "the blockade breached institutional values of freedom of expression and assembly. Furthermore, this action violated policies...that prohibit material disruption of college programs and created unsafe conditions in disregard of state law."

Several of the students who received suspensions graduated in May, so their degrees are being withdrawn for one year. Fellow students and activists criticized the decision because of the impact it might have on the students' job prospects. Attorney Nana Gyamfi, who is representing the suspended students, called Claremont's decision "cruel and unusual punishment."

Physically blocking people from hearing the ideas of otherseven those viewed as apologists for copscreates an environment where free speech simply can't thrive. Heather MacDonald is an academic, not a professional provocateur. Her intellectual value must be considered stronger someone like a Milo Yiannopoulos. And she concedes in her speeches there are major issues with policing in the United States, and that a legacy of racial animosity toward law enforcement lingers on.

Claremont is right to make it abundantly clear that even disagreeable speech deserves to be heard and debated. And while student protests of this kind do not compare to outright government censorship of speech, it's startling to see these millennials barricading doors so their views won't be challenged.

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Claremont McKenna Disciplines Students in the Name of Free Speech - Reason

Every profession has its standards. Doctors who maim people lose their jobs, and teachers who abuse their students won't be licensed for long. But for lawyers, the list of unforgivable sins may be expanding to the heinous act of expressing personal opinions in social settings.

The American Bar Association is an organization that models rules for the legal profession. Different state bars are welcome to adopt their rules, and states overwhelmingly follow their lead. So when the ABA proposed an amendment to their misconduct standards, it was no small deal.

The problem is that the amendment is a violation of free speech. The relevant text states, "It is professional misconduct for a lawyer to ... engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law."

For clarity, the ABA also released comments, noting that, "Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others" in activities including not just actually practicing law, but also "participating in bar association, business or social activities in connection with the practice of law."

This is incredibly broad language. Verbal conduct that manifests bias? Social activities in connection with legal practice?

Lawyers may often discuss controversial topics in forums like Continuing Legal Education events or a local bar dinner. What substantive conversation could lawyers hold that didn't violate a rule with such massive scope? Anyone actually expressing an opinion could run the risk of breaking the rule, which has already received plenty of criticism for "vague and uncertain" application doomed to be "fraught with difficulties" as well as its overbroad language and content discrimination.

But no one actually has to be thrown out of the legal profession for the rule to do its harm. As National Review writer David French points out, "actual enforcement isn't the point. It's about the fear of enforcement the chilling effect ... A mere allegation can ruin a career, and defending yourself from ethics boards can be painful and expensive even if your law practice remains intact. The safest course is always silence." The ultimate effect of rules like this is to reduce healthy debate to fearful compliance.

This rule is not alone in chilling speech in the name of workplace harassment.

For example, in 2006, the Equal Employment Opportunity Commission ordered further investigation in the case of an employee who complained that his co-worker's "Don't Tread on Me" hat constituted racial harassment. As UCLA Law professor Eugene Volokh notes, no sane person ignores the risk of massive liability when dealing with speech and harassment claims. It's easier and safer to steer clear of the line, even if that means curtailing legitimate speech. And it's not far-fetched to anticipate this kind of broad prohibition applying to strictly political speech that is construed as racially-motivated criticism or endorsement of a sexist viewpoint.

Proponents of the rule cite sexism as the reason the rule is necessary. And Bloomberg View contributor Noah Feldman warns that "harassing words are prohibited because they are the mechanism whereby discrimination occurs."

But, as many sources have noted (including the Disciplinary Board of the Supreme Court of Pennsylvania, The South Carolina Bar's Professional Responsibility Committee, the Texas Attorney General's Office, and the Illinois State Bar Association), this rule isn't necessary in the overwhelming majority of jurisdictions that already have anti-harassment rules.

Regardless, addressing sexism wouldn't require adopting a rule that, as a recent Montana Joint Resolution stated, "would unlawfully attempt to prohibit attorneys from engaging in conduct that neither adversely affects the attorney's fitness to practice law nor seriously interferes with the proper and efficient operation of the judicial system."

Various states and organizations have analyzed the proposed rule and rejected it, including those listed above, as well as the Professional Responsibility Committee of the ABA Business Law Section. States that do not adopt the proposed rule simply abide by their current anti-discrimination rules or adopt amended versions of the misconduct standards.

The bottom line is that lawyers don't sign away their free speech rights by virtue of their profession. Opposing harassment is not synonymous with regulating private speech. And when it comes to respecting free speech, this proposed rule simply crosses the line.

Jana Minich graduated from Cedarville University with a degree in political science. She is an incoming law student at the University of Virginia School of Law.

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The American Bar Association's chilling efforts to suppress free speech - Washington Examiner

The Detroit News Published 11:15 p.m. ET July 26, 2017

State lawmakers are right to be concerned about campus discourse but new bills could hurt, not help(Photo: David Guralnick / Detroit News)

Bad behavior on college campuses is plentiful, and the negative impact of these protests and assaults on free speech is real. While its understandable that some Michigan lawmakers want to take action, additional legislation could have the unintended effect of hampering students First Amendment rights.

Sen. Patrick Colbeck, R-Canton, introduced two bills earlier this year to address the growing concerns over free speech on campus. Most often it is conservative students and invited speakers who are silenced or deterred, and Colbeck says the states 15 publicly-funded universities are not doing enough to protect the constitutional rights of all students.

People are getting shouted down right now in our schools, Colbeck says. The people who are trying to express their free speech are the ones who are being penalized not the ones who are trying to infringe on those free speech rights. If people are saying that we dont need these laws then theyre tacitly approving of the infringement of the free speech rights of our citizens, and thats not acceptable.

The bills would seek to protect free expression on campus in several ways. For example, speech could only be restricted when it serves a compelling government interest, and administrators would need to provide ample alternative opportunities for the free expression.

The legislation also calls for colleges to craft a pro-free speech policy that would be emphasized during freshman orientation. The bills also punish students who violate the free speech rights of others. Repeat offenders would be punished more harshly. Currently, students who disrupt campus events and speeches they dislike face little repercussions.

Colbecks bills are modeled after legislation developed by the Goldwater Institute, which decided to tackle this issue after students at Paradise Valley Community College in Arizona were disciplined by the administration for passing out copies of the Constitution outside of certain free speech zones, according to senior attorney Jim Manley. A similar incident happened last fall at Kellogg Community College in Battle Creek.

Virginia, Wisconsin, California, North Carolina and Louisiana, in addition to Michigan, are pursuing the legislation.

Stanley Kurtz, a senior fellow at the Ethics and Public Policy Center, dubbed the 2016-17 academic year the Year of the Shout-Down, cataloging in National Review the many instances of anti-free speech activity.

In addition, the Foundation for Individual Rights in Education has found that Michigans public universities all have problematic free speech codes and at least five schools, including the University of Michigan and Eastern Michigan, have policies that substantially restrict free speech.

Still there are concerns about the legislations potential negative impact. The ACLU of Michigan has said the bills could chill free speech through harsher penalties for protesting students. Government attempts to choke off political protest would surely be deemed unconstitutional.

To Colbecks credit, hes working with the ACLU to modify language in his bills. Rana Elmir, the groups deputy director, says that shes confident that the concerns that we raised will be addressed and some have already been addressed.

Lawmakers also must guard against usurping the ability of universities to maintain order on their campuses.

Michigans universities must do a better job of keeping speech free for all students. But any changes to existing law must err on the side of protecting the free speech rights of all, even those who are protesting other speakers.

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Our Editorial: Fight for robust speech on the quad - The Detroit News