‘Shut Up, Already!’ The New Battle Over Campus Free Speech

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Last November, a student group at the University of Wisconsin-Madison brought in conservative commentator Ben Shapiro to deliver a speech titled, “Dismantling Safe Spaces: Facts Don’t Care About Your Feelings.” More than 400 people, mostly students, turned out to hear him. A much smaller group of about twenty people came to keep him from being heard.

The interruptions—mostly chants of “Shame!” and “Safety!”—began right away, prompting Shapiro to crack, “At least wait until I say something that offends you before being offended.” His supporters shouted “U.S.A.!, U.S.A.!” About fifteen minutes in, the protesters gathered in front of the stage shouting “Safety!” answered by cries from the audience of “Free speech matters!”

Shapiro scrawled the word “MORONS” on the blackboard behind him. His supporters cheered. Police prodded the protesters to exit. As they headed out, a few shouted, “Fuck white supremacy!” Shapiro responded with a double-barreled middle-finger salute. The disruptions lasted less than half an hour. The protesters skipped the rest of Shapiro’s talk, including the question-and-answer period, where they could have challenged what he had to say.

Let us try to understand the perspective of these student protesters. They came to oppose what they see as a noxious message, to assert the right of students at their university to a safe space, as free as possible from “hate speech.”

Shapiro, who edits The Daily Wire website, contributes to the National Review, writes a syndicated column and best-selling books, and produces a popular podcast, proved an irresistible target. A gleeful provocateur, he argues that the political left is a bunch of crybabies—eager, for instance, to blame white privilege for all “inequity of outcomes.” (At the start of his talk, Shapiro produced a diaper for his critics.) His speaking fee, said to be “around $15,000,” was paid in large part with a grant from the national arm of Young America’s Foundation, the student group that sponsored his talk. About $4,000 of the total came from student fees.

One of the protesters, Ricardo Cortez de la Cruz II, a UW-Madison junior and member of the Black Liberation Action Coalition, later told The Capital Times newspaper, “I don’t trust that the people in that room will understand what he’s saying. What I mean by that is they may feel empowered by his speech to hang nooses from the balcony of a frat house, call black people names on the street, or make fun of LGBT members.”

According to de la Cruz, speech that threatens others’ feelings or constitutes racism should not be allowed: “I think that’s when it comes into hate speech.” He added, “As a rapper, of course, I wouldn’t like my speech to be limited just because I say something offensive.”

Don’t laugh. Not all offensive speech is hate speech. There are certain kinds of speech that the First Amendment does not protect. Threats. Fighting words. Defamation. Harassment. But when the issue is hurt feelings, attempts to restrict who is allowed to say what are doomed to incoherence. To begin, who gets to decide?

In February, about 150 of 1,500 protesters rioted at the University of California Berkeley to keep Milo Yiannopoulos, then an editor at Breitbart, from corrupting young minds. That same campus, the birthplace of the Free Speech Movement, sought to reschedule a speech by rightwing attack dog Ann Coulter over security concerns; she refused, instead rushing to proclaim herself a victim: “I’m so sorry for free speech [being] crushed by thugs.” A professor at Middlebury College in Vermont was injured in a student protest over a talk by Charles Murray, author of the racially charged book The Bell Curve.

Political conservatives have responded by claiming the high ground, casting themselves as defenders of the First Amendment. Bills calling for penalties on students who interfere with free speech rights have been introduced in several states, including Illinois, Louisiana, Michigan, North Carolina, and Wisconsin.

The Wisconsin bill, which passed the state Assembly June 21 on a 61-36 vote, with no Democrats in favor and only one Republican against, was largely a response to the bad behavior shown toward the bird-flipping Shapiro. It calls on state universities to punish students who disrupt speeches and allow those whose rights are violated to sue. The bill, which the state Senate is expected to take up this fall, is called the Campus Free Speech Act.

“If the university is not able to stem this unrest and the increasingly hostile shout-downs, heckler vetoes, and censorship, then what will?” intoned the bill’s lead sponsor, Republican Representative Jesse Kremer. “This is the answer.”

Kremer, a hardcore rightwinger, last year blasted President Obama for his “divisive racism, hatred of Christianity, and lambasting of the military and law enforcement,” adding, “I don’t remember race ever being a problem before he took office.” But in a written statement in support of his bill, he praised the former president—“one not immune to hateful criticisms”—for “eloquently” arguing in favor of campus free speech.

There is irony piled on irony here. Students seeking to object to the speech of others are engaging in speech, which lawmakers now want to selectively punish. The goal is less disruption, but the likely upshot is less speech. Can we talk our way out of this?

Wisconsin’s Campus Free Speech Act, like its counterparts in other states, is based on model language drafted by the Goldwater Institute, an Arizona-based conservative think tank whose funders have included the Bradley, Walton, and Koch foundations.

The Goldwater model calls on campus officials to develop “a range of disciplinary sanctions for anyone under the jurisdiction of the institution who interferes with the free expression of others.” The Wisconsin bill, as drafted, was much more explicit. It banned “violent, abusive, indecent, profane, boisterous, obscene, unreasonably loud, or other disorderly conduct that interferes with the free expression of others.”

Wisconsin’s Campus Free Speech Act, like its counterparts in other states, is based on model language drafted by the Goldwater Institute, an Arizona-based conservative think tank whose funders have included the Bradley, Walton, and Koch foundations.

As the advocacy group One Wisconsin Now reported, this laundry list of no-nos was added to the bill by Republican state Assembly Speaker Robin Vos. When the state bill drafter tried to remove some of this language as overly broad and ambiguous, Vos’s office directed that it be restored, to “bring the section closer to the legislative intent.”

But Kremer conceded that this language likely made the bill unconstitutional and introduced an amendment, which passed, to limit discipline to “violent or other disorderly conduct that materially and substantially disrupts.” He rejected calls to tamp down language regarding institutional neutrality and mandatory penalties for repeat offenders.

Kremer and Vos are unlikely free-speech crusaders. Vos was the lead architect behind a 2015 attempt to gut the state’s open records law. He and other Republicans in the state legislature uttered nary a peep when police arrested hundreds of protesters from 2011 to 2013 for such offenses as chanting and holding signs. (“What am I being arrested for?” asked one man busted for singing in the state capitol. “I know I have a bad singing voice.”) Almost all these charges were dismissed.

And yet here was Vos, at a hearing on the Campus Free Speech bill, going to the mat for free expression: “Campuses across the country are under attack, as intolerance and physical aggression have replaced healthy debate and a free marketplace of ideas.” His only Wisconsin example: “Students at the UW-Madison disrupted a speech by Ben Shapiro, shouting obscenities and physically blocking the audience’s view of the speaker.”

The Wisconsin bill, drawing from the Goldwater model, requires that any student “found responsible for interfering with the expressive rights of others” for a second time must be suspended for a minimum of one semester or expelled. It allows any person “whose expressive rights are violated” to bring legal action. And it asserts that state campuses, as institutions, “shall strive to remain neutral . . . on the public policy controversies of the day.”

Asked during a hearing whether this neutrality rule might prevent a professor from correcting a student who claimed the Earth is only 6,000 years old, Kremer replied, “The Earth is 6,000 years old. That’s a fact.”

Asked whether his bill might prevent a professor from correcting a student who claimed the Earth is only 6,000 years old, Kremer replied, “The Earth is 6,000 years old. That’s a fact.”

Kremer’s amendment added language requiring expulsion for a third offense and directing state campuses to hold disciplinary hearings whenever there are two or more complaints alleging a violation of policy.

All of these provisions have as much to do with restricting and punishing certain kinds of expression as they do with affirming the value of free speech. Scot Ross of One Wisconsin Now has lampooned the bill’s authors as “fragile snowflakes” who “want to make our campuses safe spaces for Republicans to be free of criticism.”

The bill is also opposed by the American Civil Liberties Union of Wisconsin, the League of Women Voters of Wisconsin, and the Wisconsin Democracy Campaign, headed by Matt Rothschild, formerly of The Progressive. Rothschild testified at the May committee hearing that the bill is unconstitutionally overbroad and unreasonably severe.

“For instance,” Rothschild noted, “there is no automatic suspension for twice engaging in conduct that endangers or threatens the health or safety of oneself or another person. But if you boo two speakers, you’re suspended?”

“This bill is not about supporting free speech or discussion on campus,” said state Representative Jimmy Anderson, a Democrat. “Frankly, it’s about telling students and faculty to sit down and shut up.”

The university system’s current code already allows students to be disciplined for “conduct that obstructs or impairs university-run or university-authorized activities” or interferes with anyone’s ability to participate in these activities. The state’s university system passed a detailed policy in 2015, affirming its commitment to freedom of speech.

Why is this not good enough? Why do Wisconsin and other states need a law that strips university administrators of discretion, invites speakers to sue over undefined violations of their “expressive rights,” and orders entire institutions to keep mum about “the public policy controversies of the day”?

Time and again at the hearing, proponents pointed to the examples from Berkeley and Middlebury College, prompting Democratic legislator Gary Hebl to exclaim, “Let’s talk about Wisconsin. This is not Middlebury.” (Hebl also noted that many of the groups testifying in favor of the bill, including the Goldwater Foundation and Americans for Prosperity, have ties to the Bradley Foundation, an ultra-conservative state-based group, at one point asking, “Will all those in the room who are not funded by the Bradley Foundation stand up?”)

In fact, in Wisconsin, there has been scant evidence of the wholesale suppression of conservative speech alleged by proponents of the bill. Yiannopoulos, the former Breitbart editor who ignited rioting at Berkeley, gave a talk last December at the UW-Milwaukee as part of his “Dangerous Faggot Tour” in which he ridiculed a transgendered student in the audience by name, waving the student’s picture from the stage and making a crude sexual reference. There were no disruptions, aside from a prespeech “shouting incident” provoked by Yiannopoulos’s producer, the Milwaukee Journal Sentinel reported. The university’s chancellor criticized his attack but defended his right to be heard.

The primary evidence that drastic new rules are needed to protect speech on Wisconsin campuses is what occurred during the first half-hour of Shapiro’s 100-minute talk. Shapiro, for one, supports the proposed bill.

“I do think that disrupting someone else’s speech is not a function of free speech,” Shapiro tells The Progressive. “Protesting outside is fine and welcome, but shutting down a speech, as protesters did for ten minutes, is outside the scope of the First Amendment and is in fact a state-approved violation of my First Amendment rights.”

Shapiro agrees the original bill was overbroad but believes “discipline should be imposed, because administrations are obviously going out of their way to use their discretion to approve a heckler’s veto. We were told by security that if they had to remove protesters from my speech, they’d also shut down the speech. This is unacceptable.”

Marc Lovicott, a spokesman for the UW-Madison Police Department, says organizers were told the event would be shut down if there were a large number of arrests, but only to ensure everyone’s safety. “We would have made every effort possible to restart the event after our intervention, or possibly move the event to another location, but we never had to do that.” The protesters left when asked to do so and the event went on.

Afterward, Lovicott says, the student group sponsoring the event “informed us via email that they did not plan on paying” for the small portion of security costs it was assessed. He adds, “We do not plan on pursuing them for the money.”

Throughout the interruptions of his talk, Shapiro kept inviting protesters to have a dialogue, as opposed to trying to shout him down. “You’re not changing anybody’s mind,” he noted. “All you’re showing everybody is that your collective IQ, if it were channeled into electricity, might be able to toast a piece of bread lightly.” The audience applauded.

And really, why not at least listen to Shapiro before trying to keep others from hearing what he has to say?

This is the guy, after all, who gave up his high-profile job as editor-at-large of Breitbart in March 2016 in protest at how it treated one of its own reporters, Michelle Fields, after she was manhandled at a rally by Trump’s then campaign manager, Corey Lewandowski. He also broke ranks with other conservatives in declaring that he would never vote for Donald Trump.

Shapiro immediately became the target of cruel attacks by the site’s alt-right bloviators. “He has started playing the victim on Twitter and throwing around allegations of anti-Semitism and racism, just like the people he used to mock,” declared one Breitbart commentator. “Ben, no one hates Jewish people.”

Really?

Shapiro, an orthodox Jew, has been a magnet for what he has accurately labeled “pure, unadulterated anti-Semitism.” Trump supporters, he wrote, “have threatened me and other Jews who hold my viewpoint. They’ve blown up my email inbox with anti-Semitic conspiracy theories. They greeted the birth of my second child by calling for me, my wife, and two children to be thrown into a gas chamber.” His Twitter account, @benshapiro, includes hundreds of instances in which he’s been called a “pussy,” “Jew,” and “kike.” There are new ones each day.

So Ben Shapiro probably has more first-hand experience with actual hate speech than the protesters who tried to shut him up.

In any event, the behavior of the protesters at his Madison talk was disgraceful. They conveyed to the world that Shapiro’s ideas are so powerful that people—that is, people other than themselves—cannot be trusted to hear them. They played right into his hand, enlivening his speech and helping make his case that the left consists of intolerant bullies. They gave ammunition to legislators itching for a reason, any reason, to crack down on dissent.

And still, they did not prevent Shapiro from being heard; they just made it harder. His ideas still had to stand or fall on their own merit. So do the actions of the protesters. It is not necessary that their obnoxious behavior be punished by government for it to be discredited. They have achieved that already. And hopefully, they will learn something from it. ω