Free Speech

[Danielle Chaloux]: In November of 2017, the University of Connecticut College Republicans invited far right speaker Lucian Wintrich to Storrs for a talk entitled, “It’s OK to Be White.”


It ended with two arrests and added another set of news stories and think pieces to the continued discussion about free speech on college campuses. Statements were issued from Susan Herbst, the president of the university.


[Susan Herbst]: As we all by now have seen, Tuesday’s event did not go well. Some audience members jeered for the duration of the event. Wintrich continually had exchanges with individuals in the audience. The evening ended with the speaker appearing to physically accost a woman who had taken his notes. Following that, he was arrested by the UConn Police. Later, a window was shattered and a smoke bomb was set off. A student was arrested for breaking the window and it remains unknown who set off the smoke bomb, but police are investigating.


[DLC]: University policies were reviewed.


[Herbst]: “Next week I will assemble a group of UConn faculty, staff, and students and ask them to conceive of an effective strategy to further advance a climate at UConn that fosters healthy argument, debate, and discussion on our campuses even if it comes at a financial cost during these very difficult budget times.


[DLC]: And then university policies were changed.


[Herbst]: I’ve asked the Division of Student Affairs to produce new guidelines for speakers and events sponsored by UConn student groups that may present a risk to the campus community.


[DLC]: And UConn students were forced to wrestle with some very big ideas. Free speech. Diversity. Inclusion.


I’m Danielle Chaloux and this week on live and learn we are tackling a big idea. A right that is fundamental to American society and governance. A right that is part of the first amendment: free speech and how it relates to higher education. In this piece you’ll hear from UConn President Susan Herbst; lawyer, civil rights scholar, and CEO of the Phi Beta Kappa Society Fred Lawrence; and Fred Lee, assistant professor of Political Science and Asian/Asian American Studies. As well as UConn students Christopher Zins, Joseph Gatti, Kavya Katugam, and Sarina Barghava.


For the background and legal context, here’s my conversation with Fred Lawrence, the civil rights scholar.

[DLC]: If you could give a basic overview of what is speech. How is it defined?


[Lawrence]: Well, I usually use the term expression not speech. Because I think expression is the broader term although the constitution certainly says speech for both normative purposes and even the for constitution has interpreted it means expressive activity. Ways in which people are engaged in that most fundamental of human activities of expressing themselves in order to communicate with others and to actualize themselves into the world.


[DLC]: And why is that important? To protect the freedom of expressive activity?


[Lawrence]: There are several strands of thought to look at this, but let me gather them together in two main categories. One is a consequentialist theory that we can transfer back to people like Oliver Wendell Holmes that we think we will get the best ideas in society by having a free and open discussion that through that debate, the so called “marketplace of ideas,” will reach the best discussion that if we repress discussion and speech that we will skew that marketplace of ideas and get worse outcomes. I myself am drawn towards a deontological approach which we can trace back to people like Louis Brandeis where the idea is less what the consequences of the speech are, although that may be true as well, but rather the real goal here is that the essential nature of human freedom is based on the ability to express ourselves. In terms of what is it that makes us human? What is our ultimate humanity? It is about how we think, feel, and express those thoughts and those feelings as we actualize ourselves as we interact with other individuals and with local and national and international activities.


[DLC]: And to that extent, what are the limitations on freedom of expression and what are the things that aren’t permitted?


[Lawrence]: Some of the things that I’m going to say I think is broader, normative argument. We as human beings, if you notice everything I’ve said up until now, was quite new-transcontextual and then there’s the American context which has its own particularity to it. Certainly within the American context, the court has established what it would call a categorical approach to first amendment jurisprudence. There are certain categories of speech that are not protected. They include things like fighting words, actual threats, obscenity, defamation, and if you go a little bit further there are other categories of words that are not protected if they include things like conspiracy, or treason. Those are crimes that could take the form solely of expressive activity or words. All those categories we would say are not protected.


[DLC]: And where is the line between sitting in a room and talking about ‘to rob a bank you should wear a mask’ and where does it fall into ‘okay now it’s conspiracy’?

[Lawrence]: This is an interesting place where criminal law doctrine and free expression jurisprudence line up pretty closely. What I’ve said in my own thinking and writing in this is we should focus on the mental state of the actor. The law lat that is mens rea. In order to have a crime you require both mens rea and actus reus, which is the act. Mental state and you need an act. So if you know that someone has committed an act that causes harm normally associated with the crime you don’t yet know if the crime has been committed til you know what the mental state of the actor is. So take a simple example: if I tell you that someone takes a bat and hits someone in the head, swings the bat intentionally and hits someone in the head very hard causing severe injuries you still don’t know if that’s attempted murder all the way down to no crime at all because you need to know what was in the mind of the actor. If in fact the actor was swinging that bat because she was playing softball and the person that got whacked in the head was the catcher standing a little too close to her, then obviously you don’t have a crime you have at worst an accident of some kind. And all I’ve varied, I haven’t varied the shape of the bat or severity of the injury, all I’ve varied is the mental state of the actor. And by varying the mental state of the actor I can take it all the way from no crime at all to attempted murder or assault with a deadly weapon. So the mental state of the actor is critical for determining the severity of the crime or if there is any crime at all. Similarly, I would say in the expressive area, what is the intent of the people as they sit around and talk? So, if their intent is to plan a criminal enterprise and they take over steps in that direction, so they aren’t just ruminating about it but they are beginning to take overt steps, that becomes a conspiracy. If the intent is to talk about this, then it wouldn’t be. Let’s take better examples than the criminal area. To take a particularly graphic example, but it’s one the Supreme Court has dealt with not long ago, when would burning a cross be protected activity and when would it be criminal activity? I think it turns entirely on the mental state of the actor. If there are members of the Ku Klux Klan who are burning a cross at the end of one of their rallies, then they are engaging in expressive activity, it happens to be expression that I find abhorrent, my guess is that you find it abhorrent as well. Nonetheless, it is expressive activity of white supremacy and in a free and open society they are allowed to express their endorsement of white supremacy ideology. On the other hand, if that cross is burned across the street from an African American family with the intent to terrorize them to cause fear in that family, then we have done something entirely different. Again, by varying the intent of the actor is the intent to communicate or is the intent to threaten?


[DLC]: When the discussion of free expression comes to college universities what is the implication of having a public vs private institution dealing with these questions?


[Lawrence]: That’s a great question and I would say that the distinction between public and private is succinctly turns out to be very little if any. It’s a big distinction in terms of how you get there, because if you’re talking about a public institution the Constitution does express the apply. Then you’re talking in terms of the first amendment and you can cite First Amendment jurisprudence and the United States Supreme Court cases interpreting the First Amendment. If we’re talking about a private college, a private university the constitution does not apply, but those schools are bound by their own rules of open inquiry, free inquiry, free expression that are essential to the nature of liberal arts and sciences and humanities and the entire nature of education. You can’t imagine a university functioning as a serious place of thought and inquiry if people aren’t allowed to express themselves. So there’s a convergence between the normative educational philosophical argument that would apply in private schools and First Amendment jurisprudence that apply in the public school context. That said, there is probably certain flexibility that private schools have that public schools don’t because in the public square there’s an overwhelming presumption in favor of free expression. You can imagine a private school saying ‘on our campus certain kinds of speech will not be permitted’ but I think every time private schools have done that they wind up getting themselves in trouble not constitutionally, but philosophically with their own basic principles.


[DLC]: And that’s the tension at the core of this discussion, as summarized in this statement from President Herbst:


[Herbst]: The core principles of our institution are rooted in intellectual pursuits based on reason, thoughtful debate, and free and open argument. No aspect of what took place on Tuesday reflected this. Why would a University allow someone like Lucian Wintrich to speak on a campus at all? Because free speech is rooted in the first amendment and is vital to our democracy. Our nation was founded on it and it is by challenging those we disagree with in a free and open environment that falsehoods can be answered with truth and right can defeat wrong for all to see and hear.


[DLC]: But there are paradoxes in play. Here’s professor Fred Lee:


[Lee]: Neither speech nor inclusion is an absolute value. If they were absolute values we would have trumps. Speech trumps inclusion or inclusion trumps speech. The very fact that we’re talking about tension and a balancing act already shows us that neither value absolute. And if neither value is absolute that means that both inclusion and speech have limits. There has to be a line there has to be a limit to the kinds of differents we will accept. There has to be a limit to pluralism. Certain things that are just considered unacceptable, things we cannot tolerate and things that are legitimately excluded if there is a real consensus around those values of diversity, inclusion, and pluralism. And you can think about this in a very simple way. How far can you tolerate intolerance? How much freedom should people who don’t value freedom have? Can we really support a difference when the difference supports driving towards sameness? So this is what I’m talking about when I’m talking about limits. And you run into these paradoxes here. How far can you go?


[DLC]: Right, so if you’re excluding someone from the mainstream from having exclusionary ideas.


[Lee]: Yes, yes that’s the paradox. And human being is not neutral. At least on my idea, human beings have values and commitments and you can try and get a little distance from that but there is no valueless and uncommitted position from above, from a god’s-eye view decide these questions.


[DLC]: By including Wintrich in the on campus dialogue in November, the College Republicans had expectations. Here’s Christopher Zins on his hopes for the event:


[Zins]: Personally speaking I attended the event to really see what kind of argument he had to present because I didn’t really agree with a lot of what he had to say at all. In fact I think a lot of people who I personally know attended just to see what he had to say. The way Tim Sullivan, the president of the College Republicans phrased at the beginning, about half the event was going to be devoted to Q&A to a debate and to a discourse. And they really wanted, if someone didn’t agree with him, to stand up and to challenge him for half of the event. And I think that that would have been the best medium for engaging this topic and truly showing where his ideas didn’t have merit. Someone could have sat there, taking notes, debating with their friends already and gone up and asked him anything that they didn’t agree with instead of simply preventing him from speaking in the first place. In the long run it could have been recorded, it could have been played over, and it could actually have been spread to a much larger audience instead of simply making UConn look like an over the top university that is going to react violently to anything they don’t agree with.


[DLC]: UConn’s adjusted student organization policies for invited speakers were implemented in January when the college republicans hosted conservative speaker Ben Shapiro.


Conservative speaker ben Shapiro


Here’s Kavya Katugam’s perspective.


DLC: So Ben Shapiro is coming to campus, and how do you feel about that?


Katugam: If I thought it was going to be an intellectual exchange of ideas, I would attend. But because I know that there isn’t a capacity for that, because of the current climate, and everyone has so much anger, I know that there’s no space for me to have a voice, so I’m not going to go.


DlC: and what would you say if there was that space?


Katugam: Honestly, I think I just wanna hear what he has to say and then ask him questions to understand where he’s coming from and try and get him to understand where  I’m coming from, as someone who does support minorities and who does support feminism and does support liberals and more of a liberal way of thinking. So I would just want to ask questions, and hopefully have him ask questions, and have an actual engaged dialogue, rather than a screaming mess.


[DLC]: As Professor Lee explains, freedom of expression is valuable because it results in stronger and more valid ideas.


[Lee]: In academia, the idea has traditionally been, “You need debate to figure out what is true, or more valid. You’ve got to have people who hold one position and you’ve got to have people who genuinely disagree with that position to level the strongest possible objections in order to test the validity of the original position. Through this process of debate, we’re supposed to sharpen the original position if it happens to be true, or we’re supposed to discard the original position if it happens to be false, if it turns out to be demonstrably false. Debate, and intellectual debate, and rational debate, leads to more valid knowledge. I think there’s a different justification for political life. Deliberation in a liberal democratic society, and the assumption is if people argue for and against this proposal, and the idea is that through the process of debate, hopefully a consensus will emerge and the final decision will be agreed on by everyone, but of course that’s a little bit utopian. Or, in a more realistic case, that even if not everyone agrees with the final outcome to the deliberation, that everyone can at least understand why somebody would agree with that outcome. That the reasons are legitimate, “hey I disagree, but I see why you would hold that. And the understanding here is decisisions that go through that process of deliberation are more legitimate. So if in the intellectual justification the idea is the knowledge is more valid, in the political justification, the decisions are more legitimate, they’re more politically valid.


DLC: What’s the value of that discussion and deliberation and debate?


[Lee[]: It’s a testing process, and it’s also a procedure for giving us confidence in the outcome. The testing of the proposal, whether the proposal is intellectual or a policy proposal, is supposed to give us greater confidence in what results from the debate or deliberation.


DLC: In the past 150 years, American society has changed significantly. American citizenship has been extended beyond white men who own property to include Catholics, women, and people of color. The inclusion of oppressed groups into civil society is not easy. Colleges and universities must balance protecting the learning experience of all students and protecting freedom of expression and civil discourse.


Freedom of expression allows for an open debate, to generate better ideas. And on campus, “safe spaces” can help this development –  if the classroom is a place for scholarly exploration, civil debate, reasoned discussion, and making mistakes, open for asking difficult questions and challenging prevailing explanations, rather than a place where students fear punishment for expressing certain views.


Here’s Sarina Bhargava,


[Bhargava]: The Lucian Wintrich talk, and how people got really offended by what he had to say, and I was offended too, I didn’t think it was a very productive conversation, wasn’t a very productive speech, but at the same time, I didn’t think it was appropriate that students were kind of stooping to his level, and chasing after his car, and doing all of that, because if we want to be better than somebody, we need to act that way. And the way that UConn represented itself at that time I was actually kind of embarrassed to be a student here, because I didn’t think it was representative of everything that I’ve learned about this campus, and everything I love about this campus.


DLC: And what are those things that you’ve learned and that you love?


[Bhargava]: I mean, the people here are really great, and I’ve had really really great discussions with them, I’ve shared some of my most personal viewpoints with them, but at that point, even though I didn’t agree with Lucian Wintrich, just knowing the campus could react like that to somebody, it made me scared to be here. It made me scared to say things that I might actually feel in the future.


DLC: So how are students, as growing leaders, as engaged citizens, as the future changemakers of the world supposed to navigate the tensions between diversity, inclusion, and free speech?


Here’s some food for thought from Joe Gatti.


[Gatti]: These are discussions that we want to have. We don’t want to just have fights with people. And this is our home, UConn, and we want to be able to show everyone that, yeah, these are our ideas, and those are your ideas, but let’s discuss what we are, and not see each other as each other’s enemies, let’s see why so many people in this country have these views and maybe we can find common ground on certain issues.


DLC: So Chris, from your standpoint, as an RA, one of the things, and UConn in general also espouses the idea of inclusivity and tolerance. As students, how do you see balancing exploring all of these ideas and including people who have historically been excluded from the dialogue?


[Zins]: So I really think that this is, once again from the RA role, a major major major component of the discussion. That a lot of people are discussing these topics for the first time when you get to college. And you have your identity, what you believe to be yourself, questioned even slightly. Myself, as a firearms owner, having someone question why I own a gun, why I would want to hunt, it’s a jarring experience at first. It’s something that no one wants to do, that we’re happy and we exist in our own realities. And that applies to every identity we have.


[DLC]: As student come in and there’s all different ranges of exposure to these ideas, to having their identities questioned, is there a way that the university can support that personal development process?


[Gatti]: I’ll start by quoting one of my favorite philosophers, Socrates, he one time said, “The unexamined life is not worth living”. What he was talking about was that people should be able to examine everything they do and have an understanding for why.


[DLC]: From my conversation with Fred Lawrence


How as an educator would you counsel students on “okay, the world is happening very very quickly, and may not be saying nice things all the time”. How do you deal with that? Does that make sense?


[Lawrence]: Yeah, no it does make sense. I think part of it is also you make clear that the university is there to support you. The university will not let somebody threaten you, they will not let somebody harm you, but they will let somebody disagree with you and they will let somebody ask really hard questions and challenge your deepest beliefs and confound you. That’s part of what it means to be at a university. One of the things that I said one time and some students took it the wrong way, but I said, “We’re not here to protect you from the world, we’re here to prepare you for the world.” And some students felt that they wanted to be protected. Well, I’m sympathetic to that, but protected in the sense of no one can threaten you, correct. But protected from the realities of the world, no, that’s not what college is for. It is to prepare you for the realities of the world. Keep in mind who we’re talking about here, we’re really not talking about a cross section of the entire society. We’re talking about young people who are privileged to be at a school of the caliber of the University of Connecticut. And with those privileges come great responsibilities. You have a role to play in the world. And to take all those positions about which you care deeply and to actualize them out into the world. This is the mirror image of what I said at the beginning about that right that you have, to actualize yourself as a human being, that’s what it means to be a human being, to express yourself. I’ll flip that around now and say in many cases it’s not just a right, but it’s a moral responsibility to exercise that right.


[DLC]: Here’s Fred Lee.


[Lee]: There are tendencies, and then there are things that we can do to change the tendency and the direction. So when I say “too soon to say” I’m also saying it’s too soon to say because it depends on us.


[DLC]: And from my conversation with Kavya Katugam.


It’s an easy line to draw, but it’s also..


[Katugam]: A hard question to answer?


[DLC]: A hard question to answer.


[Katugam]: Because if there was an answer, we wouldn’t be dealing with this problem at all.


[DLC]: Right.


[Katugam]: But I think communication, and dialogue, and being open to..having an open mind to other people’s ideas, whether you are conservative or liberal or somewhere in the middle or wherever you stand. That’s a starting place for it.


[DLC]: I think we should all do more listening.


[Katugam]: Yes, I agree.


[DLC]: This has been a special episode of Live and Learn, a production of the Honors Program at the University of Connecticut. I’m Danielle Chaloux.


Thank you to Susan Herbst, Fred Lawrence, Fred Lee, Chris Zins, Joe Gatti, Kavya Katugam, and Sarina Bhargava, as well as Jason McMullan, and the entire Programming and Events team. Special thanks to Erwin Chemerinsky and Howard Gillman, the authors of “Free Speech on Campus”. This production uses “Dramamine” and “Jetsam” from Podington Bear and


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