DAVIS, Calif. — A recent constitutional law article argues that public universities may lawfully regulate certain forms of speech when a reasonable member of the campus community could construe that expression as a disruptive threat, a standard the authors say has been inconsistently applied and widely misunderstood.
In an analysis published in The Verdict, a legal commentary site, constitutional law scholars Vikram David Amar and Alan E. Brownstein examine recent court decisions addressing controversial speech on public university campuses and warn that unclear standards risk both overreach and underenforcement.
According to Amar and Brownstein, three recent cases involving disputes over controversial speech illustrate the urgent need for a clearer and more concise standard when determining whether speech may be censored.
A central question posed by the scholars in The Verdict asks, “When can a public university punish students or faculty for engaging in personal expression that is deemed ‘disruptive’?”
The first case discussed centers on a social media post by a student at the University of Florida’s law school that read, “Jews must be abolished by any means necessary,” according to Amar and Brownstein.
The student was reportedly given the opportunity to disavow the violent intent of his statements, but after failing to do so adequately, was suspended from the law school.
Amar and Brownstein note that while a district court initially blocked the suspension, the U.S. Court of Appeals for the 11th Circuit ultimately allowed it to stand.
In contrast, the second dispute involved a decision by the U.S. Court of Appeals for the 9th Circuit, which reversed a district court ruling that had upheld the University of Washington’s decision to discipline a professor for mocking land acknowledgment statements in his syllabus.
According to Amar and Brownstein, the 9th Circuit’s ruling was influenced by concerns about a “heckler’s veto,” as well as by the possibility that the punishment could “silence minoritarian speech and create a problematic chilling effect.”
The third controversy occurred at UC Davis, where an assistant professor was sanctioned for a social media post that “appeared to threaten Zionist journalists,” according to Amar and Brownstein.
In the post, the assistant professor wrote that journalists who “spread propaganda and misinformation” and who “have houses, addresses and kids in school” should “fear us.”
While there was a strong outcry on campus citing a “heckler’s veto,” Amar and Brownstein explain that university investigators concluded the statements constituted serious and substantial threats.
A key argument made by Amar and Brownstein in response to critics of these disciplinary actions is that there is a fundamental misunderstanding of how disruption is defined under First Amendment doctrine.
They write that while monitoring heckler’s vetoes and their effects is important, “avoiding disruption to government operations … is the central goal government is permitted to achieve.”
The scholars caution against treating all listener reactions as illegitimate, emphasizing that free speech doctrine must “take account of how speech affects other persons in deciding whether the speech is insulated from punishment or instead can be regulated based on its content.”
At the same time, Amar and Brownstein stress that not all offensive speech warrants punishment.
They argue that statements delivered in a nonthreatening and satirical tone remain protected by the First Amendment.
As an example, they say the reversal of the University of Washington professor’s punishment was correct not because of heckler’s veto concerns, but because of his “obvious satirical and non-threatening tone,” noting that any resulting disruption would not be based on reasonable fears of harassment, discrimination or violence.
Ultimately, Amar and Brownstein conclude that while concerns about chilling speech are legitimate, they should not override the government’s interest in safety and institutional functioning.
They argue that requiring an objective and reasonable standard for evaluating listener reactions offers a more balanced framework for resolving disputes over disruptive speech at public universities.
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Interesting article – I wasn’t aware of the professor’s statements (and the reaction) at the University of Washington.
Here’s what he apparently said:
“In 2022, Reges included a satirical “land acknowledgment” in a course syllabus: “I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington.”
“Four years later, I finally have confirmation that the University of Washington violated my First Amendment rights,” the professor said. “Land acknowledgements are performative acts of conformity. Now the Ninth Circuit has affirmed that my parody was a fully protected way to participate in the discussion of this important topic.”
https://www.campusreform.org/article/court-rules-university-washington-violated-professors-first-amendment-rights/29223
(I actually think his subsequent comment is just as important, regarding “performative acts of conformity”. And yet, seems as though the university still believes that he must “conform”.)
Truth be told, the professor was pointing out hypocrisy regarding “land acknowledgements”.
Kind of reminds me of the situation regarding a local “anti-trans” activist who isn’t going along with the program – and is doing so rather disruptively.