David Marcus (UCLA) has a guest-post at Dorf on Law unpacking the recent UCLA Fed Soc event with DHS General Counsel James Percival. David emphasizes three points. First, the bait-and-switch: Event organizers advertised the event as including a Q&A in which critics could ask challenging questions (which Fed Soc had used to justify inviting an objectionable speaker), then announced at the event that only pre-submitted/pre-screened questions would be allowed. Second, the idea of civility as a norm (rather than an enforceable regulation) and as a two-way street. Third, the problem of the right-wing propaganda machine producing misleading clips of the event and turning it into another supposed attempt to silence conservative speakers. Read the post calling bullshit on all three of those things.
The UCLA incident and David’s coverage connect with issues I have written about and need to turn into an article. It is another example of what Ken (Popehat) White calls the problem of the “preferred first speaker,” in which government and news coverage treat counter-speakers as censors rather than individuals engaging in competing, equally protected free speech activities. It demonstrates the disingenuousness of cries for “more speech through tough questioning” as a response to heinous speakers; sponsors of these events treat that vehicle as a privilege rather than a competing right, available only if the speaker and/or sponsor deigns to allow tough questions and to engage honestly with them.1 And it demonstrates the trap of civility, which rendersillegitimate the remaining mechanism for more speech–protest within the event, through signs, reactions, etc.
With tough questions and engagement off the table, some students resorted to laughing, booing, and interjecting at points, although never (according to David) to the point of Percival being unable to speak or audience members being unable to hear what he said. It created a noisier, more challenging environment in which the speaker and the critic were able to express themselves and to make their views know. Rather than deride that as incivility worthy of university punishment and a violation of free speech principles, this should be understood as one legitimate form of debate and free-speech activity–something more like Prime Minister Question Time than a Rotary Club debate. We can question whether this is the normatively best or ideal form of public discourse. But we should not treat it as not being a form of public discourse or as being censorship rather than a different, more racuous form of First Amendment activity. David Schraub and Jeremy Waldron have explored these ideas (Waldron more supportively than Schraub), including the idea that heckling a speaker to knock that speaker off his rhythm is itself a legitimate form of more speech and a legitimate aspect of debate.
- David’s post quotes the Fed Soc’s announcement of the event in which it “extend[ed] a genuine invitation: come, ask your hardest questions, and make your case.” Even had Fed Soc not changed the rules to eliminate Q&A, Percival was not obligated to respond to or engage in any honest way with those questions. He was free to say whatever he wanted, unchallenged. Much as, for all the hoopla, Charlie Kirk never honestly engaged with those who stepped up to disagree with him. ↩︎