Lena Shapiro is a clinical assistant professor of law and the inaugural director of the College of Law’s First Amendment Clinic, supported by The Stanton Foundation. Shapiro, an expert in free speech issues, spoke with News Bureau business and law editor Phil Ciciora about the current state of the First Amendment in higher education and popular discourse.
There’s an increasing trend on college campuses of students shouting down speakers they disagree with. How would you characterize the current state of the First Amendment in higher education?
There’s an ongoing battle between those who say they want to advance freedom of speech for everyone versus those who want to drown out voices that they don’t agree with. The latter group wants to have it both ways: freedom of speech only for their opinions as well as those whose opinions are the same as theirs.
In other words, freedom of speech for me, but not for thee.
What that does is lower the level of discourse that all people have, which is harmful on a college campus because we’re supposed to be teaching students how to enhance their debate skills and analytic abilities. And when you say, essentially, “I don’t want this person here because they’re harmful,” “I find them offensive” or “They demean the rights of a number of groups of people” – you can certainly express those views, but that doesn’t mean you can take it a step further, as many want to, and remove that speaker from campus. You can’t unilaterally deprive others of that speech. That’s the heckler’s veto.
If you are diametrically opposed to what this speaker stands for or has to say, you show up and counter protest. You hold another event, or you sit in the room and challenge the speaker with questions – real, substantive questions that you want to debate on.
What you don’t want are ad hominem attacks or protests that prevent speech from occurring entirely, which is antithetical to the free exchange of ideas.
What is the danger of the heckler’s veto?
The danger is you don’t actually change anyone else’s mind. And having not changed their mind, you don’t change their behavior. You’re also not minimizing the injustice that you believe results from that speaker’s speech and/or actions – and the speaker who you think was perpetuating that injustice just goes on about their day.
Many students, like those at Stanford Law School who showed up to protest Judge Stuart Kyle Duncan of the 5th U.S. Circuit Court of Appeals, want to speak out and advocate on behalf of issues that are deeply personal to millions of Americans. But by exercising the heckler’s veto, those individuals didn’t actually change any opinions on those issues, certainly not Judge Duncan’s.
Some believe if they yell loud enough, and if they scare off enough speakers, then it will just rid the world of the injustices that go on. But that’s just not how the world works, right? If you want to change hearts and minds, you have to convince them.
The First Amendment is unique in that it allows misinformation and outright lies to flourish under the guise of the free exchange of ideas. Should the government continue to protect the speech of liars, even though they can inflict damage on society?
We saw that issue play out in the various defamation lawsuits against Fox News. And Fox News paid a big price for the misinformation they aired regarding Dominion Voting Systems, so the system does have checks in place to protect against misinformation. Generally, the news media is granted a wide berth to report on issues as they see fit.
If you start to set stricter standards and start to go after what you perceive to be a lie or misinformation on, say, a social media site, you’re first going to have define what a lie is. But as we can see from today’s environment, nobody can agree on anything so being able to properly define what a lie is will be challenging.
This is why we have the First Amendment. When people see things they perceive as lies, they are allowed to respond accordingly. I noticed a difference in news coverage late in the Trump administration when reporters on broadcasts across a number of different news outlets would report something that President Trump said and then explain why it wasn’t true. That’s the way to deal with lies, misinformation and half-truths. If you think somebody is perpetuating an untruth, then bring your evidence forward. It makes us a better and a smarter society to do it that way.
So I don’t think we can regulate what we deem or what someone else deems a lie, aside from some rare exceptions. It’s just not realistic, and, ultimately, it harms the First Amendment protections that we have in the U.S.
I know people get upset and have a visceral reaction about various issues in the news. But I just don’t know that such reactions change hearts and minds.
It’s probably better to focus more on why a certain issue or story isn’t true, as opposed to accusing the other side of stupidity, mendacity or malice. I am an advocate for always having more speech. It’s why we have free speech in the first place.