Friday, May 4, 2018
Lasson on The Decline of Free Speech on the Postmodern Campus: The Troubling Evolution of the Heckler's Veto
Kenneth Lasson, University of Baltimore School of Law, is publishing The Decline of Free Speech on the Postmodern Campus: The Troubling Evolution of the Heckler's Veto in the Quinnipiac Law Review. Here is the abstract.
The Twenty-First Century has presented new challenges to the traditional ways that free speech in America has been encouraged and protected. While the right to express one’s opinions has become increasingly problematic in society at large, it is particularly imperiled in the very places that pride themselves as being open marketplaces of ideas – on college and university campuses. Today we’re faced with numerous campus speech codes that substantially limit First-Amendment rights. They are ubiquitous and often cavalierly invoked. For civil libertarians the good news is that not one of the few such codes that have been tested in court has been found constitutional; the bad news is that few have been tested. Moreover, the current codes come with new catch-phrases like “trigger warnings” and “safe spaces” and “cultural appropriation” – all calculated in one way or another to shelter students and others from the honest give-and-take of discussion and debate about topics that might be controversial. Those with opinions that might challenge campus orthodoxies are rarely invited, and often disinvited after having been scheduled, or shouted down or otherwise disrupted. When protestors embroil visiting speakers, or break in on meetings to take them over and list demands, or even resort to violence, administrators often choose to look the other way. Students have come to take it for granted they will face little or no discipline for such disorderly conduct. The so-called heckler’s veto, once rarely invoked, is now commonplace. In popular parlance, the term is used to describe situations where hecklers or demonstrators are able to silence a speaker with little or no intervention by the law. In many cases the police arrest the speaker (not the heckler) for disturbing the peace. Although a number of courts have backed them up, case law over the years regarding heckler’s vetoes has been mixed: some decisions say that the speaker’s actions cannot be pre-emptively stopped for fear that hecklers will interrupt, but others assert that in the face of impending violence, authorities can quell the hecklers by forcing the speaker to stop. The latter-day dilution of free speech has been generated at least in part by the rise of postmodernism. While encompassing a broad range of ideas, that phenomenon is generally defined by skepticism, irony, or distrust towards traditional narratives, ideologies, and Enlightenment rationality, including various perceptions of human nature, morality, social progress, objective reality, absolute truth, and the whole concept of reasoned discourse. Instead, postmodernism asserts that knowledge and truth are products of unique social, historical, or political interpretations. On the other hand, postmodernism itself is difficult to define because to do so would violate its proponents’ premise that there are no definite terms, boundaries, or absolute truths. Over the past few years scholars of note have come to espouse distinctly opposing views regarding the rights and responsibilities of colleges and universities toward their students regarding freedom of speech on campus. This article traces the evolution of the case law surrounding hecklers’ vetoes, examines the erosion of free speech over the past half-century (particularly analyzing the debates among scholars about the causes and effects of postmodernism), and suggests ways by which speech can be protected on the contemporary campus without offending traditional Constitutional principles.
Download the article from SSRN at the link.