The Administration's Time, Place, and Manner

By Michael Meranze

The Official Statement of President Yudof, the Chancellors and the Chair and Vice-Chair of the Academic Senate is a puzzle. The statement refers to “recent events at a few of our campuses” and “condemn[s] all acts of racism, intolerance, and incivility.” “Regardless of how such offences are rationalized, or what free speech rights they purport to express” the statement continues, “the acts we have witnessed are unacceptable.” In part, the President, Chancellors, and Senate Officials are referring to the hanging of a noose at UCSD’s Geisel library following a series of racist actions by students on campus. But given President Yudof’s far more forceful statement on the noose incident it is unclear what the joint statement really contributes. What is added by this collective expression?

I am not privy to the inner workings of the UC leadership of course. But in the movement from Yudof’s “Last night a noose was found hanging from a light fixture in the Geisel Library on the University of California, San Diego campus…Whatever the intent of the authors of this act, it was a despicable expression of racial hatred,” to “recent events at a few of our campuses” the administration introduced a critical vagueness into its official statements and thus threatens to set up a very dangerous and false equivalency between disparate events. One UC spokesman reportedly explained that the more general statement referred to events that “included the recent carving of a swastika on the dorm room door of a Jewish student at UC Davis.” But that “included” only clarifies so much.

Here is the question: in light of President Yudof’s earlier equation of students protesting Israeli Ambassador Michael Oren’s speech at UCI with the “Compton Cookout” party at UCSD, is the studied vagueness of the Chancellors’ statement with its equation of “racism, intolerance, and incivility” setting up an equivalency between the act of challenging Ambassador Oren and the leaving of a noose or the carving of a swastika? I was not at the Irvine event so I watched a youtube video of the UCI protest. It was uncomfortable to be sure. But the students each seized a moment to challenge the Ambassador and then were led off by officers. Michael Oren was discomfited to be sure, but it appeared that as much time was used up by hectoring from the podium and the efforts of other audience members to shout down the protesters as was used up by the protesters themselves. And whatever one thinks of the tactic of protesting inside the auditorium, the protesters were involved in political speech. When the 11 finished their supporters left the auditorium; the Ambassador finished his speech. Ambassador Oren was representing his government; this was not a case of a disrupted classroom or lecture hall but a political speech by a state actor. Are we really to consider this event in the same category as carving swastikas or hanging nooses?

If the University Administration is not suggesting that these are equivalent actions it is easy enough to clarify the issue: they merely need to say so. And I hope people insist that they do so. This issue is not one of violence—no one has alleged there was violence involved. It is an issue of the University’s time, place, and manner restrictions. One can get a sense of the stakes through UCI Law School Dean Erwin Chemerinsky’s Los Angeles Times opinion piece on the incident. Chemerinsky—a distinguished legal scholar—moves from the truism that under law there are no absolute rights to free speech to an argument that the case of the UCI students raises no difficult free speech issues. In making this claim he points to Oliver Wendell Holmes’ indication in Schenk v. United States that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” But let’s unpack this logic. Are we to assume that the student protesters were “shouting fire” or “causing a panic”? Holmes’ famous statement is about statements that have the element of “force” as he put it—not statements that make the audience or speaker uncomfortable. Chemerinsky could respond, of course, that he was only using Holmes to indicate that there are no absolute free speech privileges. But that simply dodges the question. For the question here is the reasonableness of the university’s restrictions and also the equation of incivility in political theater with “shouting fire in a theatre.” The language deployed by the Chancellors or in Dean Chemerinsky’s opinion piece implies that these restrictions and equations are beyond debate and are self-evident. They imply that incivility and causing a panic are the same. It is up to the University leadership to recognize that in their claims to protect open debate they may actually close it off.

To be sure, there are questions concerning the rights and responsibilities of civil disobedience. Again, I am not talking about violence here but about the tradition of peaceful civil disobedience. Traditionally, individuals engaging in civil disobedience have recognized the possibility of arrest and punishment. The point of the civil disobedience, after all, is to call into question the self-evidence of the rules in play. In turn, the duty of those in authority is to truly weigh, what if any damage the act of civil disobedience really caused. Chemerinsky suggests that nothing be done to the protesters at UCI that would be “so severe as to ruin these students' educational careers.” That seems to me to be a minimum—personally I have not seen anything to indicate that they should be punished further.

But, ultimately what is at stake here is not only speech but power. The UCI protesters were members of a minority who protested the actions and claims of a representative of a powerful nation-state. Whoever carved a swastika or hung a noose repeated acts that historically have demeaned and demoralized the vulnerable and less-powerful—and that are known to do so. At issue here is not some mistaken claim to absolute free speech; it is a question of how far speech should be limited. At issue here is not a question of civility or incivility; it is a question of whether the University truly thinks that temporarily challenging a political speaker (not preventing him from speaking) is equivalent to hanging a noose in a racially charged moment or carving a swastika in a student’s dorm room. Put another way: do UCOP, the Chancellors, and the System-wide Academic Senate truly think that the measure of acceptable speech is that it does not challenge or discomfort the powerful? And do they truly think they should punish protesters when it does?