The Heckler’s Veto vs. The Podium Pullback: Why Public Universities Should be Given Room to Craft Data-Informed and Viewpoint-Neutral Policies to Govern Speaker Events

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Public universities all over the country are grappling with the challenges that arise when members of the university community (especially so-called Registered Student Organizations or RSOs) invite contentious speakers to campus for events that threaten to generate tremendous passion on all sides of controversial issues, and that carry with them the realistic prospect of violence. As a result, university administrators—accustomed to spending their time on promoting research productivity and teaching effectiveness—find themselves focusing on security measures and costs, and even the procurement of insurance policies to reduce the risk of harm from death, injury and major property damage. (Many private universities face the same difficulties, since most prominent private universities try to hold themselves—sometimes, as in California, because state law requires them to do so—to the same First Amendment standards that bind public institutions.) To cite but one example, the University of California at Berkeley reportedly spent (and absorbed) almost $1 million in security costs in late 2017 to prepare for a free speech event that ultimately got cancelled not by the university but by the student group organizing it.

Examples like this naturally raise the quite reasonable question of when the price for providing security for a controversial speaker event justifies cancelling the event. Or placing limits on the number and type of attendees (say, restricting the event to students who possess valid student IDs). Or imposing on the inviting student group some or all of the security costs or the costs of procuring insurance policies to spread financial risks.

Case Law and the Heckler’s Veto

Supreme Court and lower court case law is extremely underdeveloped here—but decisions lean decidedly against any meaningful attendee limits or cost-sharing imposed on event organizers. One relevant Supreme Court case from a quarter century ago (Forsyth County v. Nationalist Movement) involved an attempt by a Georgia county to calibrate the fees it charged (up to $1,000) to people who sought a (required) permit to hold large parades or rallies on public streets according to the costs the county would incur in ensuring safety and good order during the particular event. The Court, by a 5-4 vote, struck the law down on the ground that it lacked objective standards and conferred too much discretion to county administrators to set the fees in individual cases, which could open the door to content- or viewpoint-based discrimination. And all nine justices seemed to agree that it would be impermissible to require a speaker to pay for security costs that arose because opponents to the speaker might show up and cause trouble; that would, said the justices, confer a “Heckler’s Veto” that would be inconsistent with the First Amendment’s core idea that unpopular speakers should not be shut down simply because they are in the minority (at that moment).

A very recent federal district court decision applied Forsyth County reflexively and aggressively in issuing a temporary restraining order against a University of Washington (UW) security fee policy that sought to collect $17,000 from a UW College Republican group to pay for anticipated security costs associated with a “Freedom Rally” the College Republicans sought to hold in which a leader of the controversial, conservative group “Patriot Prayer” was slated to speak. (The fee was assessed on the student group before the event, but the money was to be collected afterwards.)

The district judge found UW’s policy was not “reasonable” and that it “[gave] administrators broad discretion to determine how much to charge student organizations for enhanced security, or whether to charge at all.” In particular, the court concluded that the campus police authorities did not have a clear enough explanation of how many police officers would be needed to ensure security. The court also seemed to find the policy viewpoint-based because “administrators relying on instances of past protests, either for or against a student organization or speaker, will inevitably impose elevated fees for events featuring speech that is controversial or provocative and likely to draw opposition. Assessing security costs in this manner impermissibly risks suppression of speech on only one side of a contentious debate.”

Thus, there are two big concerns the courts have expressed when addressing governmental efforts to regulate or shift costs concerning speaker events. First, judges are concerned that bureaucrats or law enforcement officials will, if given too much discretion, distort public debate (including on public policy issues) by selectively imposing regulations or costs on some disfavored speakers while sparing favored subjects or viewpoints these burdens.

Second, putting aside the concern over discretion and intentional or subconscious viewpoint-based debate distortion, courts do not want to empower opponents of a speaker by allowing their threats of trouble-making to constrain or silence the speaker altogether. In our democracy, more speech is to be favored over less speech (especially as to controversial matters of public policy), and the proper answer to unwise or hurtful speech is better, counter speech, not silencing (or allowing someone else to silence) the original speaker.

As against these concerns of government manipulation/distortion and conferral of a Heckler’s veto, of course, the important government objectives of fiscal integrity and the avoidance of violence must be weighed.

The courts’ sentiments against government regulation here are quite understandable and indeed laudable, but they should not apply to modern university settings.

Times Have Changed

For starters, Forsyth County was 5-4, and no member of its majority is still on the Court. Fees up to $1,000 seem quaint in a world where universities are now thinking in terms of seven figures plus to deal with these kinds of episodes. The reality is that, given the current political climate and technology (see below), the risks of major conflict are higher. If things at a particular rally or speech are truly getting out of hand and public safety is being compromised, municipal (or university) officials can shut down an event. But if that is so, then why can’t they block an event (or allocate costs to minimize problems) before the fact, when they can produce clear (non-speculative) evidence to suggest violence is likely to ensue? To be sure, aspects of First Amendment doctrine (like the rule against prior restraints) reflect an aversion to before-the-fact impediments on speech (impediments that may reflect unfounded fear of the harm the speech is likely to cause), but surely government should be able to avoid the very first human casualty from occurring, and shouldn’t have to wait until the violence breaks out before acting.

The advent of the internet has also changed things in two ways, both of which argue for more flexibility for regulators. For one thing, social media has enabled trouble makers to credibly threaten more violence, involving more people, with more immediacy. Furthermore, if an event has to be reduced in size or cancelled, the internet provides an outlet for a controversial speaker to nonetheless get the speech out. (For example, if a university event needs to be limited to students for security reasons, it can still be livestreamed to the outside world so as to reduce the likelihood that campus officials intend or are able to distort debate based on viewpoint.)

Why Universities Are Different

If the rejoinder to some of these suggestions is that the university simply needs to spend more money up front to ensure safety (and rein in the persons likely to initiate the violence), we run up against the problem that universities don’t have robust revenue generating devices the way cities and counties do, and our primary mission, of course, involves classrooms and laboratories more than it does massive rallies and demonstrations (even if the latter be a significant extracurricular component of the educational experience.)

To be sure, universities—no less than municipalities—should have data-informed, before-the-fact, policies that minimize discretion and thus the likelihood that the speaker’s message or viewpoint, rather than neutral legitimate concerns about violence and property damage, account for limits, cancellations or cost-sharing. That a university may have to take account of audience reaction to a speaker does not mean that the university itself is trying to censor; there are many settings in which government can take account of private attitudes and those attitudes are not attributed to the government. And, of course, in assessing any university policy, the courts should appreciate (as the justices have made clear in many cases) that all laws—even valid ones—have some residual vagueness and enforcement discretion in them.

But even if we minimize intentional distortion of free and robust debate that comes from too much discretion by bureaucratic administrators or law enforcement officials, there remains the Court’s concerns about the dangers of giving hecklers a veto. Whether good-faith estimates of security costs/violence are based on a particular speaker’s track record at other venues or objective data specific to a new venue, if troublemakers can plausibly threaten to cause trouble in order to constrain or block an unpopular speaker from speaking, then they will have more and more incentive to do so, and society will lose speech. And not just any, garden-variety, speech, but speech on controversial issues, which is precisely the kind of speech most important to a well-functioning democracy. As the Court observed in the famous New York Times v. Sullivan case, “debate on public issues [needs to] be uninhibited, robust, and wide-open, and . . . it may well [have to] include vehement, caustic, and sometimes unpleasantly sharp attacks.”

The concern about the Heckler’s Veto is real, and important (even in an age when, as noted above, the internet allows people to avoid any veto of person-to-person speech by going through cyberspace).

But so too are universities’ concerns about safety and cost. Perhaps especially so. If municipal authorities are supposed to keep citizens safe, universities have an even greater obligation to keep students safe, especially since students often have little choice but to be on or near campus much of every day, whether or not contentious events are taking place. And if courts don’t allow universities to manage these competing objectives with good-faith policies that try to minimize discretion and maximize viewpoint neutrality, then universities might (and can) simply stop facilitating student RSO-invited speech on the decentralized terms that currently prevail. We will have no choice. And that too will result in a (potentially more problematic) loss of speech.

Having to cut back on RSO authority would be a shame, because giving students leeway to hold events and invite speakers is good training for them to become truly adult and mature citizens. Universities have a proud tradition of encouraging and facilitating edgy speech on all topics and reflecting most all viewpoints. But universities have to maintain safety, and also fiscal integrity. And when push comes to shove, the teaching and research missions of the university will have to be given priority over facilitation of student events if financial cost and security cannot be managed. Universities will have no choice but to withdraw the broad platform for speech they currently provide.

The result will be much more centralization of the authority to invite outside speakers. Outside speakers will still be invited, but student groups will no longer have as much discretion and power to bring them to campus; instead, academics and administrators will make more of those inviting decisions. Perhaps some additional centralization is a good idea in any event, to ensure that invited speakers are not just provocateurs but instead are seriously engaged in the process of presenting and discussing ideas and data—that is the core mission of the university. But centralizing the process a great deal will likely lead to more content- and viewpoint skew, because it is nearly impossible, even for individual people acting in good faith, to eliminate content- and viewpoint-based considerations out of their own mental processes when deciding whom to invite. (Student RSO leaders certainly invite speakers not just because the speakers are considered important figures in some sense but because of the content and viewpoint of the speakers’ messages.) The fewer people making the invitations, the more likely the invitations will reflect the content and viewpoint preferences of a small and less representative group within the university.  If outsiders are concerned that decisions made today about cancelling student-initiated events are driven by political correctness, the problem will only be exacerbated if authority is withdrawn from student groups and given exclusively to faculty-comprised bodies, because student bodies are often more intellectually diverse these days than are faculty ranks. And there is precious little any reviewing court or other outside entity could do to police such invitation decisions by faculty entities.

Support for A New, More Sensitive, Judicial Approach

At the end of the day, legitimate qualms about a Heckler’s veto must therefore be balanced against equally legitimate—and quite weighty—concerns about how universities will respond if forced to run high safety and financial risks. Sensible judicial doctrine needs to take account of the fact that universities—unlike those who oversee city parks and street parade routes—have significant choice about the number and type of fora they choose to voluntarily provide.  And there is a good precedent from the Supreme Court on which to begin to build a new, more nuanced, doctrine regulating what universities should be allowed to do here.

In Arkansas Educational Television Comm. v. Forbes, a 1997 case involving candidate access to a public TV debate, a majority that included two current members of the Court (as well as Justices Scalia and Kennedy, whose replacements might have similar attitudes) opined as to what kind of forum government had created by holding the debate. The Court rejected the idea that a debate should be considered a designated public forum, which would be treated akin to a traditional public forum. Indeed, the Court defined designated public fora narrowly: such fora are created only when the government provides general access to the property in question. If the government provides only selective access and reserves to itself the right to choose which speakers in a particular class will be permitted access to the area, the result is the creation of a non-public forum—where speech receives markedly less protection. That is why candidates with smaller followings (candidates who might be most likely to be edgy) could be excluded from the debate.

Relying on this distinction between selective and general access might at first blush seem to undermine free speech interests because it makes it easier for government to avoid creating designated public fora, and thus makes it easier for government to regulate and restrict particular speakers and particular speech.

But the Court had a rejoinder:

The . . . distinction between general and selective access furthers [rather than undermines] First Amendment interests. By recognizing the distinction, we encourage the government to open its property to some expressive activity in cases where, if faced with an all-or-nothing choice, it might not open the property at all. That this distinction turns on government intent does not render it unprotective of speech. Rather, it reflects the reality that, with the exception of traditional public fora, the government retains the choice of whether to designate its property as a forum for specified classes of people. . . .

Were it faced with the prospect of cacophony, on the one hand, and First Amendment liability, on the other, a public television broadcaster might choose not to air candidates’ views at all. A broadcaster might decide “the safe course is to avoid controversy,” . . . and by so doing diminish the free flow of information and ideas.

The parallel is powerful: Universities, if confronted with an “all-or-nothing choice” concerning the safety and costs of contentious student-initiated events, might stop empowering students to invite persons and hold such events more generally. As bad as “cacophony” is, chaos is worse still. And while there is no perfect solution as to how to balance all the competing legitimate considerations, courts shouldn’t reflexively invoke and act on concerns about a Heckler’s Veto without also taking full account of the possibility of what I might call a long-term Podium Pullback.