Paul L. Caron

Wednesday, April 10, 2024

They Managed A Protest: Prohibitory, Ethical, And Prudential Policing Of Academic Speech

David H. Schraub (Lewis & Clark; Google Scholar), They Managed a Protest: Prohibitory, Ethical, and Prudential Policing of Academic Speech, 50 BYU L. Rev. __ (2025):

Byu law reviewUniversities are often a raucous setting for free speech. Tasked with encouraging deliberation and inquiry into the world’s most pressing and contentious topics, academic spaces regularly see conflicts and clashes over speech. Frequently, the university is asked to mediate these conflicts in an institutional capacity—for example, to ensure that a controversial speaker is free to deliver her remarks free from significant disruption, or to encourage university community members to relate to their peers or to a given issue area in a respectful manner.

Campus protests represent a particularly fraught instantiation of this dilemma. Protests are a form of speech, but they also in some circumstances can obstruct speech. “Shout downs”, heckling, ad hominem attacks, or crude signs or questions all have at various points been portrayed both as protected speech and the antithesis of protecting speech. The knife’s edge quality of these disputes—where universities can face censure both for being too solicitous and too censorial towards controversial speech—should ideally counsel humility in how we judge the university actors tasked with policing speech controversies.

But this has not been the case. Many commentators confidently assail university staff and administrators for what they deem obvious free speech failings in circumstances where, at the very least, the facts on the ground seem complex. Why do so many of us find so many hard campus speech controversies easy?

My core thesis is that there is a fundamental conflation of several different dimensions of regulating campus protest: prohibitory, ethical, and prudential. The prohibitory dimension represents the forms of protest which a liberal campus may, or perhaps must, not accept. The ethical dimension represents the forms of protest which a liberal campus should, or perhaps must, condemn. And the prudential dimension represents the forms of protest which are simply ill-advised. These dimensions are all important. But they are not identical, and importantly, they can often run orthogonal to one another. In the typically contentious, fast-moving, and confrontational environment of a protest, efforts to advance or defend one of these registers of speech regulation may regularly undermine or squelch another. Failure to recognize these trade-offs means we will regularly give the short shrift to the actual choices campus protest regulators are forced to make. The persons tasked with implementing these regulations on the ground—often untenured administrative staff—are being set up to fail. We demand that they reconcile incommensurable values without even recognizing that multiple values are in play. They are the victims of our own failure to work through some deep difficulties at the interstices of free speech as a legal requirement and free speech as a cultural practice.

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