as an aside, why does the 1st amendment matter in a thread concerning a private school. Clearly, Chicago (and all other private colleges), can limit speech on their own campus in any way they see fit.
What speech may be constitutionally protected at a public school is not protected at a private school, correct?
You are partially correct. The picture gets complicated because even private universities accept public money, and this occasionally comes with some strings. Famously, Title IX, for instance.
Private universities in California, for example, are bound to the 1st Amendment by law. Leonardâs Law holds private institutions equally accountable under the law to respect the same free speech obligations as public universities. So, for instance, USC is legally bound to follow the 1st Amendment, just like UC-Berkeley.
Most relevant to UChicago, however, is the âChicago Statementâ, discussed above. The University has a very strong commitment to free speech, and numerous free speech legal academics, who have been part of the process of informing said policies. Its student code of conduct is enforceable, as it forms part of a legal agreement, and can be subject to further judicial scrutiny, if appealed.
The Chicago statement holds that âThe University may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University.â
This means that the University is, by its own admission, bound to respect speech. Indeed, the Universityâs code of conduct that binds students includes the very quote above. The question therefore arises if advocation of genocide would satisfy any of the relevant speech proscriptions to be deemed disallowed on campus. Here, the relevant avenues of regulation would seemingly be either harassment or that the speech is unlawful. Harassment, though, has particular legal meaning and is typically understood to involve a course of conduct directed at particular individual(s). Thus, a general call for genocide may not satisfy such a requirement. This then leaves open the question of whether or not calls for genocide are unlawful. Given Brandenburgâs very high threshold for immediacy of violence, this is unlikely to be satisfied. Calls for genocide and violence are, in fact, protected speech so long as there is no immediacy element (see e.g. Brandenburgâs own calls for genocide). As students on campus, in this instance, are not calling for a genocide to take place on UChicagoâs campus, contrary to Publisherâs statements, I would expect this is to be legally protected speech.
This being the case, unless UChicago were to deviate from its pre-existing principles â and thereby invite lawsuits for unilateral ex post facto contractual changes â it would be committed to upholding such speech. The speech may be morally abhorrent, but it is not illegal.
Again, specifics matter.
Whether or not facts or circumstances (context) trigger a violation depends upon the facts of a particular case. Those facts may be viewed differently by different individuals and that is why we need an actual case or controversy in order for a court to decide whether or not a violation of free speech protected by the 1st Amendment has occurred. And, as you know, any such decision can be appealed and reversed.
Your knowledge of the law in this area is interesting, but until we have any actual case or controversy with specific factual allegations, no one can give a definite answer.
P.S. Not sure whether or not this applies, but it is quite common for young lawyers to share everything that he/she knows about the law without applying it to a specific situation.
If answers were easy under our legal system, then there would be little need for lawyers and law schools as administrative clerks could handle transgressions.
It depends upon the specific facts or circumstances of a particular case.
The quote is from the OPâs initial post in this thread.
Any context needs to include a specific situation in order to decide whether or not speech is protected under the 1st Amendment of the US Constitution and/or prohibited by university rules.
The OP of this thread may have misinterpreted the response of the presidents of three important universities/institutions. The university presidents were referring to the facts and circumstances of any particular situation in light of university rules and the 1st Amendement. Any context needs an actual situation (case or controversy).
I was trying to draw a distinction between what is a Constitutional protection/right (chiseled in the proverbial tablet) vs a state law (CAâs Leonard), or private school that chooses to adopt a free-speech policy. The latter two can be changed at any time, in contrast to the former.
You have repeatedly misstated the law and now are attempting to backtrack that position, for who knows what reason.
The fact of the matter is that absent an immediacy factor, the speech is lawful. As presented above, there is no immediacy factor. No one has called for genocide to be commited at UChicago, and the context of said query was protests happening on campus, which as a factual and contextual matter did not involve advocating for genocide on campus, or immediately right there.
P.S. You then note âyoung lawyers.â Iâm sorry that you misstated the law and are now attempting to backtrack that and point to âcontextâ when your original statements were plainly incorrect on the law. Non-subject experts tend to misstate the law when they assume that they know it. My law students do better.
I am generally in agreement with the statement of the issues made by @NYU2013 . I would add only - or rather, emphasize a bit more - that the Chicago principles, though they do not legally implicate the First Amendment, seem to me to draw inspiration from it and from the Enlightenment thinkers that inpired it. The freedom to think and speak is good for a nation, but it is especially good - I would say necessary - for an educational institution. This does not mean there are no restraints. There have always been restraints, as summarized above. Some of these are specific to the educational mission (time, manner and place restrictions) but most come from long years of judicial interpretation of the First Amendment. This is not because that Amendment and those judicial rulings apply directly to a private institution like UChicago but because, as @NYU2013 has said, the institution has created an internal contract that amounts to a constitution for that institution, one that closely parallels the national contract we call the First Amendment to the Constitution.
@Publisher , I admit I donât like the wishy-washy word âcontext.â It is way too abstract, too general, and too equivocal. I understand quite well the meaning the Presidents wished to give it when they answered the Congresswomanâs question as they did. I agreed with that meaning, and I agreed with them for that reason that the hateful utterance they were being asked to shut down was permitted speech. The problem for me - and this would be another application of the concept of âcontextâ - was that these instutions had previously been happy to shut down speech and discipline speakers for the speech they didnât like. What conclusion was one to draw from their quick conversion to free speech principles? The inference was inescapable: the answer that âit depends on the contextâ was insincere, opportunistic and tailored to get the Presidents off the hook for permitting hateful speech in this unique instance. It was speech that many of their students and faculty members approved of. That was the real reason. So, yes, that was the context that seemed to me most salient at the time those answers were given. I had hoped, however, that the Presidentsâ conversion to the principle of free speech would hold up over time and apply to all speakers. That remains to be seen. Of course two of the Presidents are now gone.
But it does depend upon the context. Again, facts matter, specifics matter.
What if an angry group was protesting on campus yelling for genocide of Jewish people and Jewish students were walking by the group in order to get to class, dorms, or cafeteria ? In this contextâthis situationâdo you think that such speech calling for the genocide of Jewish people would be allowed ? Should be allowed ? Would violate the 1st Amendment of the US Constitution ? What if the protesters raised their fists when shouting ?
Granted individuals can assess facts differently, but a reasonable person could view this as a threat to the Jewish students being yelled at with a call for genocide of Jewish people.
Have I stated any law ?
My responses are not designed for a court of law or for law students; my responses were broadly stated because no specific facts & circumstances were given in the original post to which I responded. (And this is not really an appropriate forum to litigate legal matters.)
Merely citing law is not enough (as you should know if you are a law professor); applying the law is the key. And applying the law is often quite difficult. There is little certainty in our system of law; guidelines, yes, certainty, infrequently.
Also, in a common law system such as ours, the âlawâ is constantly changing and subject to change which is why a specific case or controversy is needed and is why law professors use hypothetical fact situations. If simply âstating the lawâ were enough, then there would be little to no need for lawyers and law schools as administrative clerks could alleged transgressions.
So one fact issue was whether or not âimmediacyâ was present according to your post. How does one define âimmediacyâ ? Again, facts, circumstances, context all matter. In applying the law as you proclaim it to be, how does one determine âimmediacyâ ? And, can individual judges differ in their opinions regarding âimmediacyâ in a particular case ?
Reminder to users that this thread is in the regular forum where debate is not permitted. Please take any back and forth to PM.
Thank you.
We are definitely in agreement, @Publisher , that the facts matter. I am ready to take on your hypothetical facts and answer the questions you posed. Before doing that, however, itâs worth pointing out how vanishingly unlikely this hypothetical is. At least I myself am unaware of any incidents on any American campuses in which mobs have shouted âKill all the Jews.â Do you know of any such? But put that reality aside, as the Congresswoman did, and pose the possibility of it as a hard case.
This calls for a discussion of the Chicago Principles, not the First Amendment. To answer your questions we need to consider how that document would apply here.
Firstly, it says that while the University âgreatly values civility,â that is no basis for restricting expression. Speech that makes anyone feel uncomfortable or upset is not for that reason impermissible.
This does not extend to speech that âviolates the law.â For the reasons given by @NYU2013 I donât believe these shouts violate the law. They certainly amount to hate speech, but hate speech is protected by the case law under the First Amendment. Under that heading the Chicago Principles do bring the First Amendment into play.
What about speech âthat constitues a genuine threat or harassmentâ - another prohibited category? I would not see these hateful chants, even in the faces of Jewish students, as a âgenuine threat.â It would be come that if the raised fists you hypothesize were fists that were seriously about to be deployed in striking these students (as opposed to being merely performative fists raised to emphasize the chants). However, it seems to me to be quite clearly âharassment,â which is forbidden. This conduct would not be saved as permitted speech under the Chicago Principles as I understand them, whatever the First Amendment would have to say on the matter.
But, while I see harassment as the primary culprit here, the blocking of entry to class would be another grounds for shutting down these actions. This would be âincompatible with the functioning of the University,â another basis for restricting speech. Despite its commitment to free expression the University retains the right to âreasonably regulate the time, place and manner of expression to ensure that it does not disrupt the ordinary activities of the University.â These were the grounds on which the University, after enduring several weeks of the encampment last spring, finally removed it. Some charged that this was hypocrisy on its part. No, its actions had nothing to do with the content of the protestorsâ speech but everything to do with the particular manifestation of that speech (its âcontext,â if you must) having become incompatible with âthe ordinary activities of the University.â The First Amendment has nothing to say about that aspect of the matter. The Chicago Principles do.
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