Susan Poser: Good afternoon.
While the panel is still chatting a little bit, I'm going to get us started because we
just have an hour.
Welcome to today's campus conversation.
This is the sixth and final conversation for this academic year.
By the way, my name is Susan Poser.
I'm the provost here.
These conversations have given us the opportunity to come together.
I don't think they realize their mic is live.
To come together and learn about and consider the issues of the day that are impacting our
lives.
Today's panel: What's going on and why?
The First Amendment and speech on campus will be followed next Wednesday, April 12th at
noon by an open forum on the same issue also held here at Student Center West.
The question of what limits there are on free speech on a college campus have been around
for a long time and surface in different ways and for different reasons over time.
In just the one year that I have been at UIC, these issues have arisen several times, including
last March when then candidate, Donald Trump, was scheduled to speak on our campus and more
recently just a couple of weeks ago, when anti-Semitic posters, which also implicated
other groups, were found on campus.
It seems then that the time is ripe here at UIC to engage in a discussion about these
issues with the goal of respecting and encouraging the free and open exchange of ideas while
maintaining the diverse and inclusive community that UIC prides itself on.
This is no small task when there is so much to talk about and so many different views
on some very difficult issues, but it is critical that we continue to figure out how to make
it work.
Today we have a panel of members of the UIC community who are going to engage in a discussion
with Professor Sheldon Nahmod is a distinguished professor of law at the Chicago-Kent School
of Law at the Illinois Institute of Technology.
Professor Nahmod is an expert in constitutional law and civil rights.
He has authored several books and numerous articles and has argued cases in front of
the United States Supreme Court.
There is more, but I am making this short for everybody.
Our panel members are Rabbi Seth Winberg of the Levine Hillel Center at UIC, Lori Barcliff
Baptista, Director of the African American Culture Center at UIC, Rosa Cabrera, Director
of the Rafael Cintrón Ortiz Latino Cultural Center at UIC, Megan Carney, Director of the
Gender and Sexuality Center at UIC, and Professor Nadine Naber, Director of the Arab American
Culture Center at UIC.
We will begin with Professor Nahmod, who will provide us with some background about the
First Amendment followed by a discussion which I will moderate.
If we have time, we will take questions at the end.
Professor Nahmod.
Sheldon Nahmod: Thank you, Provost.
I appreciate it.
Is the mic on?
Are you all able to hear me reasonably well?
I'm Sheldon Nahmod and I'll be talking about the First Amendment.
If you want to put in these terms since I'm speaking only for 15 minutes, I will indecently
expose you to the First Amendment.
Let's start with basics.
"Congress shall make no law abridging the freedom of speech, or of the press, or of
the right of the people peaceably to assemble and to petition the government for redress
of grievances."
Notice the language refers to Congress, but Supreme Court jurisprudence has applied the
First Amendment to state and local governments as well as to the federal government, but
not to private parties or private institutions.
The University of Illinois Chicago, for example, is covered by the First Amendment while my
school, IIT, Chicago-Kent College of Law being private is not.
Like the Constitution in general, the First Amendment is a product of the enlightenment,
which deals with self-government on the basis of reason, not on the basis of passion, not
on the basis of religion or tradition necessarily.
In order to understand some of the basics of the First Amendment ... Keep in mind, please,
I'm not giving anybody legal advice.
You consult a lawyer if you have specific questions.
I want to tell you briefly what the three major theories of the First Amendment are
and then get into some of the details, giving you examples from the UIC and other campuses.
Specifically the major theory or one of the three major theories is the marketplace of
ideas.
Think of John Stuart Mill and his on liberty, something similar to that, where the best
test of truth is its ability to be accepted in the marketplace.
This is modeled on laissez-faire and on scientific experimentation.
Under this approach, there is no hierarchy of speech.
No kind of speech is more important than any other kind of speech and the government's
role is one of neutrality.
Stay out altogether.
A second theory of the First Amendment is tied into the Constitution, which is self-government.
We need the First Amendment in order to educate ourselves through reason and practical judgment
about how to govern ourselves.
Notice from a self-government theory or perspective of free speech, there is in fact a hierarchy
of speech.
That is political speech would rank at the very top and other kinds of speech might rank
below that in terms of free speech value.
Here too, the government's role is one of neutrality.
Underlying both of these is what you might characterize as the avoidance of government
suppression.
We don't want the government intervening in the marketplace of ideas and intervening in
self-government.
The government serves us.
We do not serve the government.
That's the theoretical background of free speech.
Let's get into some more practical considerations.
First Amendment decisions are the outcome of three factors: the what, namely the content
of the speech, the how, the medium of the speech - oral, written, internet, TV, radio
- as well as the where.
The forum question.
Where does the speech take place?
This will be particularly important in connection with UIC, which is a public educational institution.
Notice that a rock group is missing from this list of the what and the where and the how.
Free speech has costs.
It has costs, as we will see.
Like other constitutional rights, the First Amendment, and this is important, is not absolute.
There is no such thing as an absolute constitutional right for individuals.
Many non-lawyers don't understand that.
I'm telling you now, that's a takeaway point.
If you learn nothing else from this little presentation, I hope you pick up on that one.
Let's talk briefly about the what because certain kinds of speech are actually unprotected
by the First Amendment.
For example, threats.
An attempt to intimidate by the threat of force or violence, which silences people.
That is unprotected by the First Amendment.
Government can punish that, which means the UIC could punish it as well.
Obscene speech is unprotected by the First Amendment utterly as is child pornography.
Unprotected by the First Amendment.
There is an aspect of free speech doctrine involving the hostile audience.
Suppose the speaker is addressing an audience which is hostile to his or her message and
tries to shout down or stop the speaker from speaking.
The Supreme Court has held, intriguingly, that there is an affirmative duty on the part
of government to protect the speaker from the hostile audience.
That government duty is discharged only when it becomes difficult, if not impossible, to
protect the speaker from the audience.
Hate speech.
What about that in terms of the what, the content of speech.
Hate speech is speech directed at a historically oppressed religion or racial minority with
the intent to insult or demean.
It undermines social attitudes and beliefs, isolates its targets and intends to silence
them.
It also traumatizes.
What has Supreme Court jurisprudence said about hate speech?
Well the short answer is, and it can be made considerably more complicated, is that the
government is not allowed to regulate hate speech as such, unlike the situation in Western
Europe, which has a very different, unfortunate historical experience from us in the United
States.
This is tied to the marketplace of ideas, especially self-government.
The enlightenment assumption is that people are ultimately persuaded by reason, even though
obviously emotions and passions play roles in political decision making.
Offending people, hurting people psychologically is not a sufficient justification for the
government regulation of speech.
There's also a very important free speech consideration here.
The opportunity for counter speech.
No matter how vicious or nasty or unappealing the speech is, we assume that there is room
for a counter speech, which might counter the original unfortunate hate speech.
Some general principals.
Government may not suppress or regulate speech with which it disagrees.
It may also not exclude certain subjects from public discussion.
We have a posture of suspicion.
UIC students, for example, cannot be punished solely because of expressing their political
views.
Faculty are a little more complicated because they are employees of UIC.
We can talk about that later, but they don't have the same free speech rights in this regard
as students may have.
That's the what.
Now the how.
Speaking, writing, demonstrations.
Traditional media include oral speech, writing, demonstrations and the like.
These are ordinarily accorded the maximum protection, depending on where they take place
and when.
As we'll see in a moment, demonstrations may be subject to reasonable time, place, and
manner restrictions and you'll be glad to know you probably know this already that the
Supreme Court has expanded First Amendment protection to the internet so that government
attempts to regulate the internet are generally found to violate the First Amendment.
Practical takeaway from this: there is no Constitutional right to say what you want
in however, with the medium that is, you want to say it.
This applies to public university, you can't speak up, for example, in the middle of a
science class to deliver a political message.
You can't have a sound truck on the campus in the middle of the day with political messages
and especially in the middle of the night.
Finally, the where question.
Remember the what, the how, the medium of communication, and the where question.
Maximum First Amendment protection is given to speakers and what we "lawyer types" call
traditional public forums such as streets and parks.
Almost as protected is free speech in designated public forums such as public universities
which are voluntarily opened up to students and faculty for discussion of all kinds although
not necessarily opened up to outsiders.
Outsiders do not necessarily have First Amendment access, you understand, to a public university;
although in a public university certain places can be designated for free speech activities.
Certain places might be severely restricted.
Dorms, for example, maybe the library; those places because of where they are might possibly
be regulable by government and this depends in part on the medium.
So, whether we have speech in a traditional public forum such as streets or parks or designated
ones such as public universities, permits can be required and, as I said earlier, there
may be reasonable time, place, and manner restrictions.
After all, you can't generally hold two demonstrations at the same time in the same place, you've
got to have restrictions on those.
There is no First Amendment right to demonstrate, therefore wherever you want and whenever you
want on the UIC campus any more that there is a right to demonstrate where you want and
when you want on streets or in parks, permits may be appropriate.
Now, as I finish up, I want to make an important point that sometimes even we lawyers don't
get but it's especially important for non-lawyers to get.
I've been talking about the legality and constitutionality using free speech principles.
I want to say something and I hope this is one of your takeaways: just because you have
a constitutional right to do something, just because what you want to do or say is legal,
it does not follow by any means that it is moral to do so.
I'll say that again, constitutionality does not determine morality.
It does not at all.
You hope there's a connection, but there is no necessary connection.
So even if you have a constitutional right to engage in hate speech, it does not follow
that it is moral or to use another controversial example - I hope the women forgive me for
this just because it is constitutional to decide to have an abortion in the first two
trimesters of your pregnancy - it does not follow, this is your own decision, that it
is moral to do so.
Constitutionality is not the same thing as morality.
There are imperatives of citizenship.
Citizenship gives rise to certain norms that you should comply with since you are a citizen
and morality does the same thing.
So, that's how I finish with my preliminary comments.
I hope there are a few takeaways and I appreciate your being here.
Thank you.
[applause 00:16:56]
Susan Poser: Thank you very much, Professor Nahmod.
So now we're going to have very brief comments by each of our panelists and then after that
engage in a conversation about the First Amendment and so we will start with Megan Carney who's
the director of the Gender and Sexuality Center at UIC.
Megan Carney: Good afternoon, everyone.
Can you hear me?
Thank you so much, provost, for the invitation to be here.
I wanted to say a few words about the centers and then dive in to my specific example.
The four of us up here are representatives for the Centers of Cultural Understanding
and Social Change and for those of you who don't know us we're in Academic Affairs under
the Office of Diversity reporting up to the provost.
We brought a lot of materials today that are outside on the tables so I hope you'll take
a moment if you haven't had a chance yet to look at some of the programs we're doing that
directly relate to this and many other issues here on campus.
Each of the centers, some of us representatives are not all here today, each have unique locations
and identities but we also have a lot of overlapping work that we do, overlapping histories and
shared concerns and we do a lot of collective programming and take a lot of direct collective
action as a result of that.
Each of us is going to cite different examples of how instances around free speech and actions
that we've taken around that have occurred on campus in our recent history together so
I want to just start us off.
Professor Nahmod thank you for giving us that outline around the what, the how, and the
where and I'll just use that structure to share the example that I have which is an
instance of anti-gay or homophobic, transphobic, information being distributed via leaflets
in the Student Center East on our campus and this has happened on a couple of different
occasions in my time here and I want to tell you about one story in particular.
I was sitting in my office on that day and I got a phone call from a staff member who
works in the copy center, in the student center, who said "something's getting passed out by
the escalators and I'm really upset about it and I don't think this should be happening
on our campus and I just don't know what to do" and as we started looking into it I think
someone else had called the campus police and they said well we can't tell people to
leave, it's a public space so we came up with a counter narrative or, as Professor Nahmod
said counter speech, option to directly respond to that action.
So we had some cards already in our office from a visit of a pretty homophobic, transphobic
church that came to campus a couple of years ago and they were bright yellow cards and
they said something along the lines of "hate has no home here" or "no hate at UIC"
and then had some affirming messages printed on the back and had all the information about
the Gender and Sexuality Center included, so we grabbed the cards and a bunch of us
from the center went over to the Student Center East and we just stood on the other end of
the escalators and we passed these out.
And we had a lot of exchanges with students and staff and faculty who were using the escalators
that day about how they felt seeing us there because it was really confounding that that
would be happening on our campus especially because it was, we discovered, an outside
organization and we were unclear about what that arrangement was and how that was permissible
and if it was.
So I guess I just wanted to say some questions that came up to me from the top are what exactly
constitutes a threat is that physical, is that this kind of microaggression, is it leafletting,
at what point would that constitute a threat and then also in terms of designated areas
and outside entities at what point do we require a permit for an outside group that comes to
campus or could we say who invited you to come to campus and does that give us grounds
to determine what might be distributed.
Since the 2016 election results and the ensuing rise of hate crimes across the country the
centers gathered together in the fall and we sent out a collective statement kind of
standing against rejecting racism, xenophobia, misogyny, and other expressions of bigotry
and discrimination.
And we since have created a new card and I brought a bunch of these today, they're the
mint green cards that you'll see out on the table.
So I want you to take those with you.
And it's got a statement that sort of affirms our values, who we are as centers for the
campus, what the safe and brave spaces that we're continuing to cultivate for intersectional
communities working together and kind of inviting people into our process so this is one opportunity
for you to take away if you experience something like that to sort of reclaim public space
with a counter narrative that can be used.
And I think that's what I want to leave with today and pass on to Lori.
Susan Poser: Thank you, okay our next speaker will be Lori
Barcliff Baptista who is the director of the African American Cultural Center.
Lori Baptista: Thank you.
So I think I'm going to focus most of my speaking on a little bit of the how and so I'll start
with the what.
So the summer of 2016 was forcefully punctuated by a global, national, and local instances of violence.
Social media, cases are [inaudible 00:22:27] the tragedy of the Pulse nightclub shooting,
and the murders of Alton Sterling, Philando Castile, and five police officers in Dallas,
Texas, over the 4th of July weekend 62 people were shot in Chicago, four were killed and
July 2016 marked the deadliest July in Chicago in more than ten years with 65 homicides.
In addition to participating in a number of ongoing demonstrations, petitions, protests,
and rallies as well as issuing public statements, members of UIC community gathered for healing
circles, dialogue, and quiet reflection to process but also respond in various ways to
some of the injustices that took place over the summer.
The African American Cultural Center responded to the violence and also the increasingly
unsettling political rhetoric of Summer 2005 by initiating a site specific participatory
arts project, so this is the how.
We initiated a quilting project, the quilt is here with us today.
While quilting has its roots in a number of cultural traditions, we especially invoked
its African American genealogy as part of the Centers for Cultural Understanding and
Social Change's commitment to a program around the theme of remedies for this year and I
should say many of the seven Cultural Centers use arts based social practice to engage around
issues in addition to dialogue and some of the other methods that we use.
So, completed during the Fall of 2016, the project convened multi-ethnic, multi-racial
cohort canvas and community stake-holder to make what what would be known as a [inaudible
00:24:09 - 00:24:10].
The quilt is titled "Remedies, Love, Unity, and Peace" that is comprised of 39 8x10 panels
and one 24x30 panel.
62 faculty, staff, students and African American Cultural center community partners participated
in quilt making workshops at the cultural center facilitated by a Chicago fabric artist
and educator [Jim Smoot?
00:24:29] African American Cultural Center staff as well helped to coordinate the fusion
of many of our campus partners to participate.
And I'd say the "Remedies" quilt is really a product of our collective efforts to create
what we call the summer's safe embrace spaces that honor diversity of views and again represents
another outlet for sharing our responses to these things.
Susan Poser: Thank you.
Thank you Lori.
Our next speaker is Rabbi Seth Winberg from UIC's Hillel.
Seth Winberg: Thanks for the invitation to be here today.
I've been getting asked many times in the last couple of weeks what's the big deal about
these anti-Semitic fliers, why is this bothering Jewish students so much, and so I hope this
will help clarify.
I'm the director of the Hillel on campus, which is a non-denominational holistic Jewish
student organization.
The scriptural source for evil speech being a Jewish moral and spiritual sin is "cursed
be the one who harms his or her neighbor in secret" from the book of Deuteronomy and it's
hard for me not to associate posting anti-Semitic fliers or other forms of biased hate-speech
in secret when no one is looking, it's hard for me not to associate that with this verse
in the Torah.
Perhaps the most objectionable content of the fliers was the Holocaust inversion in
one of them.
The flier compares the condition of the Palestinians in Gaza with Jews in Auschwitz, the Nazi death camp.
The comparison between the Jewish state and those who perpetrated the greatest and largest
act of anti-Semitism in world history is a bias of intentionally hurtful comparison.
Holocaust inversion is not a form of legitimate criticism of the Jewish state it's a charge
that is purposefully directed at Jews claiming that Jews should not be seen as victims of
Nazi crimes but as Nazi perpetrators.
Such comparisons also start to diminish the significance and uniqueness of the Holocaust.
In short, making such comparisons is an act of hostility toward Jews.
Now, posing the question of whether a specific act of speech is legal according to the laws
of our country strikes me as an acceptably low bar.
For my students at Hillel and for all of us here, I would encourage a more spiritual frame
of reference: what speech helps build society and respect in harmony?
According to my ancient Jewish tradition, corrupt or evil speech mortally damages three
people: the one who says it, the one being talked about, and the one who listens to it.
Jewish tradition also teaches that it's better to throw yourself into a fiery furnace than
to embarrass another person in public.
Gossip is a moral and spiritual sin according to Jewish tradition, even when the gossip
is true.
All of us at a university, chancellors, provosts, professors, deans, students have to confront
evil speech.
University campuses made us particularly vulnerable to evil speech because at a university, freedom
of speech is cherished.
It's perhaps the only value that we can all agree upon fervently.
But spreading lies in order to hurt people is a perversion of the ideal of free speech.
Judaism aspires to a vision of society based on careful, deliberate, constructive speech.
That's what my tradition teaches in all sorts of speech which the United States allows are
morally and spiritually wrong.
That words can be used as weapons by those who want to cause others pain.
When people speak badly about other people, they erode the integrity of the community
they are trying to build together.
My question for you, Professor Nahmod, is what advice would you give to a student about
how to cultivate a commitment to citizenship?
Susan Poser: Thank you Rabbi Winberg.
Our next speaker is Rosa Cabrera who is the Director of the Latino Cultural Center at UIC.
Rosa Cabrera: Thank you.
Although the first time anyone [inaudible 00:28:49] matter offensive and personal [inaudible
00:28:54] consequences of hate speech on campus are very real for students in particular.
It interferes with their ability to fully participate in community life here at UIC.
My personal observation is that they feel threatened, undermined, and reminded that
the struggle to fully participate in society is unwanted and unjust exercise.
And these feelings and reactions work on a timetable that calls for urgent interventions
and since the Cultural Centers are designated by the students as safe and brave spaces we
are bonded to create these very timely responses or counter speeches to be able to support them.
Responses to hate speeches for us offer opportunities that, I want to emphasize this, for greater
inquiry into reasons for bigotry.
And this can bring us into safety as people feel more empowered and now the solution is counter speech.
And this is something that we're talking more and more about with these incidents happening
to sit down and as painful as it it to try to figure out why is this bigotry?
And I think we feel that if we have seen it a bit, as students, find out more, do more
with this inquiry.
That they feel more empowered to be able to then form counter speeches that are more informed.
I can share a couple of incidences on campus that prompted a series of urgent responses
from the Latino Cultural Center and all of the others centers.
The first was in 2013 when a poster in the LCC was vandalized with an anti-undocumented
slur and you can see all of these things on the table outside on display.
Right away the students worked with us and other cultural centers to develop a serious
counter response to reaffirm their identity as immigrant and as more important as undocumented.
This was very important to them.
And also that they were a member of the UIC community.
They created a display with the vandalized poster saying this will not stop us.
We presented a series of public programs on undocumented families and relationship in
the U.S. that drove in faculty to talk about particular demographic studies.
A serious out of the shadow and into the street took place in the quad so in a sense, they
felt more empowered and I need to come out and say I am undocumented and I'm not afraid
and this is who I am.
We hosted an outdoor exhibit called "I define myself undocumented and unafraid" the trouble
from the Hull House to various cultural centers outdoor spaces and the BSB with the Gender
and Sexuality Center where some of them are just posters were vandalized also so we have
to be organized in order to respond to this.
The second example that I wanted to talk about is the almost Trump visit, right because it
never happened which left many of the students, staff, and faculty involved in this process
with difficult questions on how a university can be open to all opinions, popular and unpopular,
while protecting the well-being of targeted people on campus.
This is key because the way that we might define threat and the way the university defines
threat is very different in the way the students would define threat.
And then this is a lot of this conversation, defining this.
After the almost Trump visit we had a very civil [inaudible 00:33:10] with the center
and we also had a circle to share afterthoughts about what it meant to be a part of organizing
this protest.
And also right before the Presidential inauguration national day the students came together and
we set up an open studio using the arts as a tool to get the students to really feel
better about what was happening and also talk of other feelings and their own stories.
So these counter speeches responses have allowed all of us to do a lot of storytelling, to
stimulate discussions on free speech and what
it means to be a part of diverse campus community and what this diversity brings to our creativity.
We all know that it is necessary to maintain human creativity when holding hands but it
brings a lot of challenges, right?
So how do we mediate this tool?
And also it has created a lot of opportunities to form alliance across issues and identities...
They have created the sense of safety only not only for the students, but also for contact
workers on this campus, because it also affects all of us, faculty and staff.
Susan Poser: Thank you, Rosa.
And our final speaker from the panel is Professor Nadine Naber who is the Director of the Arab
American Cultural Center at USC.
Nadine Naber: Hello everybody.
I'm going to start by sharing a greeting from Mark Martel with you.
He's the director of the Asian-American Resource and Cultural Center.
He couldn't make it today.
So I'm first going to set up the context of free speech for Arab and Muslim Americans
in the context of the periods, especially starting with the U.S. War on Terror up and
after the horrific attacks of September 11 with George Bush's statements, "Either you
are with us, or you are with the terrorists."
And we all recall, I'm sure.
And to think about that as a racial discourse that associates terrorism with people who
are perceived to be Arab or Muslim.
So we need to take that discourse into consideration, because over the years it's legitimized the
criminalization of people who look Arab or Muslim.
And it also helps justify hate speech, and hate violence against them.
In a recent incident this semester at UIC a man approached a freshman Muslim woman,
wearing a hijab, a student, a freshman.
She was walking through the engineering passageway on her own.
He yelled at her, "You have a bomb in your bag", and she was all alone, and other slurs
involving references to Islam.
Arabs or Muslims who peacefully express viewpoints that are critical of war on terror related
policies, whether it's anti-Muslim racism or the US War on Iraq, are disproportionately
targeted or criminalized within this environment.
So basically if you're not overly perceived to be Arab or Muslim, but you're also an activist
and criticizing racism or war, you're going to be disproportionately targeted, because
you have then there's that association between, activist and support for terrorism.
Because criticizing U.S. government policies equated with being un-American.
With the aim of thinking along that logic that you're with us or with the terrorist.
There's nothing, no other options.
So Arab and Muslims students across the U.S. are aware that they or their parents could
be targeted with hate speech in public space.
Or charged with terrorism related charges or put through trials based on secret evidence
that they will never see.
Or that their neighborhoods can be or are already under surveillance or being surveilled
by the FBI without any evidence of criminal activity.
So how does this matter to the First Amendment?
Well these institutionalized polices led to the War on Terror, whether it's surveillance,
use of secret evidence, et cetera.
That produced that culture of fear and repression, whereby our students and our communities can
be afraid to enact their constitutionally protected free speech rights and the fear
of criminalization or of simply being seen as un-American.
Or being targeted by Islamophobic groups that speak of Arab and Muslim individuals as potential
terrorist or terrorist supporters or un-American.
So it's important to think about that level of fear that's community wide.
And that also helps explain why there was a strong reaction to the posters, not only
because of the horrific and absolutely unacceptable antisemitism posters promoted, but also that
the posters were partly blamed on Arab and Muslims.
They were presented as the Arabs and Muslims were the authors of these flyers, as well
as Black Lives Matter movement.
And so that's taking place in an environment where Arabs and Muslims are the scapegoat
for being the bad guys.
And so the idea that, of course, the posters would need an investigation, and that already
creates a sense of fear.
So just because of how you respond on the campus, we agree with the theme that the way
to respond to hate speech, is more speech.
And we do that through community building and building unity across campus and building
strength and visibility.
And a voice for our Arab and Muslim students in diversity efforts across campus.
We support students through positive, uplifting, cultural and artistic events that help build
community, visibility and safe spaces.
So the woman who experienced that hate incident, she came to our center, and one of our staff
worked with her through art therapy, and she ended up writing a poem about her experience.
And she and her poetry will be featured at a campus event tonight called Rise Up There's
a Fire Outside.
And so what we do is we bring communities together to basically use the arts for healing
and for building communities.
So we'll have an event where poets are coming to work with a group of people to write poetry
together and create messaging for campus unity together.
With themes like, "Hate has no room here."
So for Professor Nahmod, how can our discussions of the law account for differential access
to free speech?
What do you think of the idea that not everyone is equally protected under the First Amendment?
Susan Poser: Okay.
Thank you Nadine.
So I think as a sort of a side note to the First Amendment, I think one thing that we
have learned here today is the strength and dedication of our cultural centers and our
Hillel, and their desire to support our students and our whole campus and all the kinds of
work that they're doing.
So I want to just publicly thank them for that.
Not that the Professor needs any summary, but I sort of picked up three themes here.
One being what constitutes a threat, and how can something really not be a threat, when
the people who are subject to the speech feel genuinely and authentically threatened.
The second one is this idea of counter speech, which I think is hard to argue with in our
culture.
It's really ingrained, but as Dr. Naber pointed out, some peoples counter speech is much more
risky than other peoples.
And so how do you account for that and how do you deal with that differential?
And then the third one that I heard, was how, what Rabbi Winberg said, how do we help our
students become good citizens, when the First Amendment bar is the floor and not the ceiling?
How do we teach them to become productive people and part of community?
When you can pretty much say anything you want, most of the time.
So it would be nice to have a conversation about this, but we will let Professor Nahmod
have the first word on that.
Professor Nahmod: I heard about seven or eight impossible questions.
[inaudible 00:07:15] I was taking notes, so ...
Susan Poser: You might want to put the ... Little closer,
yep.
Professor Nahmod: Several speakers gave us good examples of
calmer speech and I can only applaud those examples.
And I'll tell them to keep on doing it.
With respect to a question that somebody raised about outside organizations.
There is no necessary First Amendment right of outside organizations to have access to
a public university.
But we got an interest in public university here.
It's an urban public university and if streets and perceptive came to light.
So unless regulations or restrictions could be could be very carefully drafted to keep
outsiders out.
I think that might be asking for more First Amendment problems than it would be worth.
I'm just not sure.
What's a threat?
That's an excellent question.
The Supreme Court has told us there are two aspects to true threats.
One is that the speaker has to intend that the person on the receiving end be intimidated
by the personal threat of violence.
Secondly on the receiving end, it must be received that way, and a reasonable person
must have interpreted or received it that way.
So somebody with particularly thin skin, would not necessarily be able to say this is a threat.
So you need both of those in order to have a true threat.
And without those the Supreme Court just held, in a case a couple of years ago, involving
the apparent threat made to the ex-wife of some crazy guy over the internet.
His name was Elonis and the Supreme Court struck down his conviction because he didn't
supposedly intend that his ex-wife be threatened, even if she was and probably any one of us
would have been threatened or felt threatened as well.
Sometimes a threat can be conveyed just by a physical presence.
I'm relatively a short person and somebody comes up to me who is 6'6" and calls me
what?
My mother was from Poland, my dad was from Syria.
You dirty Pollack or you dirty Arab or something of that sort, in my face.
That could be a threat, besides being fighting words, which is another legal terminology.
Now there is another ... going to hate speech now on my little list.
There is an advantage in not prohibiting hate speech, you know who your enemies are.
That is not to be underestimated.
You know who your political enemies are.
Rabbi asked a terrific question.
How do you cultivate a commitment to citizenship.
Well I'm a first generation American and I really love and appreciate this country.
So the question is how do you develop, with all its flaws by the way and there are many,
how do you develop an attachment?
Well attachment is both intellectual and emotional.
You've got to learn American History.
I'm sorry, you've got to learn it.
I don't know if it's required anymore.
You've got to learn about this country.
Its ups and its downs.
You've also got to learn, at least as a layperson not necessarily going to law school, about
the Constitution.
You've got to know about the second World World, during which this Country saved the
world.
There's something important there.
Again with all of this Country's flaws.
So it's learning as well as figuring out what's happened in American History and connecting
to it, there are amazing stories that are there.
The damage poster, which was an example.
That can be punished, if it was a student who did it.
Maybe even if it was a non-student who did it, because the legal category would be trespassing
on personal property.
You can't commit vandalism on somebody else's property.
So you got a little legal handle in that situation.
What should the university do?
University has an obligation as a university, as well as having a moral obligation, to speak
out expressly against inappropriate speech.
Even if the person doesn't protest it.
You have to, and one in the same time, I would think, support free speech values and say,
regardless of those free speech values, we think that what this speech was was reprehensible,
and should not be accepted as the norm on our campus.
Now let me finish up, because we're talking about anti-Muslim and anti-Arab slurs.
When government officials engage in these slurs, and unfortunately our current President
has not been the best example for in helping us.
When a government official engages in these slurs it is especially troubling, because
it may reflect government policy.
On the one hand the government policy can sometimes when implemented be challenged in
the courts, but it also encourages bigots.
And that is another adverse effect of government officials speaking out in a bigoted way.
Now I saved one of the hardest questions for last.
And that is the essential access to free speech.
Does anybody here own a newspaper?
No.
Is anybody here a millionaire or a multimillionaire?
We have to be honest.
One of the flaws with the marketplace of ideas approach, is that money buys you greater access
to the marketplace and greater impact.
It simply does that, however the Supreme Court in a bunch of cases; the campaign financing
cases, and the citizens united case.
The Supreme Court has said, "Government should play no role in equalizing access to the marketplace
of ideas."
That's what the Supreme Court has said.
With that being kind of laissez faire approach, to political speech.
You've got the money in effect, you've got more political speech available to you, than
more of an opportunity to influence.
So given that First Amendment structure, you got to fight very hard and it's what you said
earlier, groups joining together to overcome the speech though engaging calmer speech against
the very powerful groups.
The assumption of most of us, studying the First Amendment, is it's probably better to
do that, than to get the government involved in regulating speech.
Because sometimes governments have their own hidden agendas, and maybe not so hidden.
And sometimes the government's agenda is on your side this year, next year the government's
agenda will be on the side opposite of yours.
So you always got to be suspicious of the government agendas, even though you have a
government very objective.
Susan Poser: Thank you very much.
Does anyone on the panel want to respond to that, or ask a follow-up question?
Professor Nahmod: Have we stopped you all from [crosstalk 00:15:54].
Its' not consistent with free speech values.
Susan Poser: Megan you want to exercise your free speech?
You just look like you were ... You don't have to.
Megan: I guess the one thing that came up to me,
and I don't want to take time away from what other people might be thinking.
But I was curious about all of the efforts you put into crafting non-discrimination statements
for our university and other protected classes around who's here and who's included and all
that.
I wondered if there's some overlaps between those territories?
Professor Nahmod: Can you be a little more specific?
Are you suggesting possibly as some scholars have, although there's a distinct priority,
that equal protection equality values should play a role in free speech jurisprudence?
Is that what you're hitting on?
Or that I make too fancy on the law side.
Because the Supreme Court has basically said equality, no Constitutional guarantee of equal
access necessarily.
You fight with what you have.
So are you saying something else?
Megan: I'm not.
I going to live with [inaudible 00:16:58]
Susan Poser: The question that I heard, I think I heard,
was we spend a lot of time creating anti-discrimination policies and policies about community inclusion
and we have cultural centers and so on and so forth, we do all these things.
And it seems maybe to say in an exaggerated way, pointless, if people can still go around
and say this stuff and create problems that go against these values of anti-discrimination.
Professor Nahmod: Well why would it be pointless?
Because when government enacts anti-discrimination legislation, the government is speaking and
the government is speaking in a way which many people think is very favorable speech.
And when government speaks it's always, as we said earlier, that sends a very powerful
message.
The question is would you rather have government speak in favor of anti-discrimination or have
government not speak at all and just leave it up to the vagaries of political organizations
and the like.
Government speaks.
Government has spoken positively in many areas of the law.
And government does have its own right to speak.
That's why we select certain government or certain political parties, because they speak
on our behalf.
Sometimes for good and sometimes not so good.
Susan Poser: And perhaps the other response is also that
there's a difference between the speech and an act.
And it certainly protects against anti-discriminatory acts.
Professor Nahmod: Oh yes.
I'm sorry.
I probably should have said at the outset, that we are talking about speech or at most
about speech that's embedded in certain kinds of conduct.
Demonstrations are obviously conduct, but they are communicated conduct.
There are expressive conduct.
A punch in the mouth is not protected by the First Amendment, even if it is effected by
someone who disagrees with what the other person is saying.
That is not protected.
Murder, assassination is not protected, not at all covered by the First Amendment, it
is an act.
That can be prohibited separately.
Regardless of the actors motives.
Thank you for clearing that up.
Susan Poser: Yeah.
But there's clearly a gray area there.
Right?
Professor Nahmod: Only in cases involving symbolic speech.
Burning a draft card for example.
Burning a flag.
There is a complicated free speech test involving symbolic speech, but we don't really need
to get into that right now.
Susan Poser: Yeah.
Anybody else on the panel want to say anything to speak, before we see if there are any questions?
We've got about five minutes.
And I will say that, I know that Rabbi Winberg has to run out of here right at 1:00.
He is dealing with a lot of student issues today.
Anybody have a question?
Yeah.
Go ahead.
Speaker 6: My question concerns restrictions of free
speech by academic boycotts as a way of shutting down speech?
The AOP is taken position in opposition to academic boycotts as a matter of principal.
So my question to the panel is, is an academic boycott, ever permissible?
And my question to Professor Nahmod is whether opposition to a boycott by a university, president
or official might be construed as prior restraint of free speech?
Professor Nahmod: Should I start off with the last question?
University officials who speak out, for example, against academic boycott, that goes with your
first question.
But that would not be a prior restraint.
A prior restraint is a licensing scheme whereby before you speak, you have to get permission
from the government official to speak.
So this technically is not a prior restraint at all.
As we indicated earlier, university officials can speak out on various issues, even if it
turns out to be controversial.
Now about academic boycotts generally, leaving aside questions of constitutionality, it seems
to me that an academic boycott, whether it was directed at some [inaudible 00:21:38],
whether it was directed at Israel, or directed at some Arab country.
And academic boycott that singles out professors from particular universities, particular countries
is antithetical to the values of the university.
It deprives students within the university of competing view points, students may want
to invite somebody to speak.
And I think there is a serious political and educational issue with that.
Is there a free speech right to argue for a boycott?
Sure we have a free speech right to argue for a boycott.
Is there a free speech right to argue against a boycott?
Yes, but when you have one regardless of who it's directed against, a country, or if a
nation, what nationality.
Antithetical to university values.
This may not be comfortable for some people, but that is my firm view.
And I'd like to think I need a hand for the [inaudible 00:22:38].
I would extend it to what was done decades ago in South Africa.
As capable as the South African nation once was.
Susan Poser: Yes.
In ...
Speaker 8: Thank you everyone so much for your time for
being here.
I just have one quick comment and then a question.
My first comment is that while I understand the illustrative impact of using abortion
as a moral question, I would encourage you to perhaps come up with different example
to illustrate that point.
In a room where there are people who have to make that choice and it can be difficult.
And that's not actually what I want to talk about…
Professor Nahmod: Good but I did, I did you know, remember something.
Just because a person makes a legal argument, this happens to me in my com law classes.
One of the things I do in my com law classes when we get to Roe v. Wade is to push back
on it, legally.
To push back on it, and some students say in their evaluation, Professor Nahmod is anti-feminist.
That's outrageous, I'm trying to teach them to think.
So you've got to be very, very careful.
I am a strong supporter of abortion.
Speaker 8: That's fantastic.
[crosstalk 00:23:58]
Professor Nahmod: That's not ... it shouldn't matter.
Whether I'm a strong supporter or not.
When I told you that, just because you have a legal right to burn a flag, just because
you have the legal right to engage in an abortion, it doesn't necessarily follow that that is
a horrible thing to do.
Speaker 8: A great example of what I want to talk about,
because I wanted to sort of think about perhaps, or maybe some people on the panel, perhaps
you professor, can respond to how do you think about protecting free speech when the mechanism
that is theoretically doing that production is also targeting students and people who
are read as Muslims, Arabs, South Asians?
How do we think about protection in that context?
Where the state or the government that is supposed to be protecting that speech, is
also specifically targeting and surveilling people who are trying to use that theoretical
right?
Professor Nahmod:
Who was that question for?
Speaker 8: Anyone.
Preferably you first, but [crosstalk 00:25:01].
Professor Nahmod: Well you have to be specific about that in
your question, because I'm not sure I follow it.
Are you skeptical of the government?
And if that's the case, which government?
United States government?
Speaker 8: I am speaking to the specific point of [crosstalk
00:25:14] government.
Professor Nahmod: We do deal with facts on the ground and facts
are incredibly important and you don't get to opinions unless you have facts.
So I'd like to know what facts you have.
Speaker 8: In regards to surveillance?
Professor Nahmod: Yes, yes.
Surveillance.
Speaker 8: Aside from the very specific programs that
we know exist in terms of surveilling Arab, South Asian and Muslims communities.
Professor Nahmod: Yeah.
And there is very ... and I'm not speaking for all the litigation, but there is a lot
of litigation going for one of the organizations.
Such as the ACLU and the like.
That are challenging these surveillance programs in court and one of the advantages that government
uses for those kinds of litigation.
One of the advantages is that it brings this stuff out into the open.
So you are right we're always fighting on all fronts.
Speaker 8: Right.
I understand that.
I guess I just maybe wanted to sort of think through on a different level or through a
different perspective.
Like when we talk about free speech and what free means in that context.
What does free speech mean in a context where, the mechanism the state, the government, that
is supposed to protect that speech is also part and parcel of the mechanism that is specifically
surveilling people that are perceived as Muslim or read as South Asian or Arab.
And that's I guess the question [crosstalk 00:26:39]
Professor Nahmod: I understand you a little bit better.
Keep in mind that when you talk about the government, you've got to be specific.
For example, when you talk about the Federal Government, we have not only Executive Branch,
we have Congress and we have the Federal Judiciary.
Which is independent.
And different branches do different kinds of things.
So if there is a problem from a person's perspective with the Executive Branch, some people have
problems with that, you have possibly Congress can provide some sort of remedy.
If you're in Congress, you hope that the Federal Judiciary, which so far has been independent,
can deal with some of those problems.
Because it is not politically accountable the way the President and Congress are.
Now I remember a saying a long time ago, and even Justice Stephens said he borrowed it
from somebody else.
And I know where you're coming from, "you cannot let the perfect be the enemy of the
good".
Just because there are problems with some of the branches of government.
It does not follow that everything government does is to be disregarded and rejected and
characterized as evil.
Maybe it's a function of being around a little longer than you, but is that responsive enough?
Susan Poser: I think that we're just about out of time.
I might leave that as a rhetorical question.
I know that Megan Carney wanted to say something quickly.
Megan: I just want to add quickly.
What I also hear in that question is rather than pursing out individual aspects of government
kind of thinking.
Kind of thinking about government in a broader way.
I've heard affirmed a lot on this panel, advocating for community response and meeting speech
with more speech.
Or meeting action with more action.
And some collective solidarity work that sort of doesn't necessarily include the government
response, but thinking what do we need in order to meet these challenges between the
even order to survive under certain conditions.
I guess I just wanted to say as a closing note to say, we're engaging, it's a complicated
conversation.
I'm glad you bought it up, but I think that the centers are each engaging with conversations
like that in their own particular ways.
And I wanted to invite everyone to again, check out that table.
There's a sanctuary, everybody's talking about sanctuary cities, and the major needs for
having them around.
What makes a sanctuary?
Sanctuary dinner dialog is happening at the gender and sexuality center coming out.
There's an invite on the table.
Other centers are kind of diving into exactly these questions.
How do we perceive under a given circumstances that are so different from each of our communities
and yet be in solidarity with each other and recognize those shared issues.
So I guess I just wanted to kind of bring it back to that ...
Susan Poser: Yep.
Thank you Megan.
Megan: and hopefully we can extend this conversation
in other formats.
Susan Poser: I think the other thing to keep in mind is
that the U.S. government has a history of this kind of conduct in various different
ways.
But we also have a history of overcoming it.
And the only reason that we have been able to overcome it and bring it out into the light,
is because of the First Amendment.
So it has a various sides to it.
And that I think goes back to the history point that Professor Nahmod made.
So this was, as I said at the very beginning, the beginning of a conversation.
The very, very beginning of one.
But I appreciate your being here and I hope that you will continue this conversation,
in a lot of different venues, for the rest of the year and so forth.
Thank you.
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