Address Excesses at Campus Protests Using Time, Place, or Manner Restrictions on Speech

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Natural Law reasoning definitively identifies time, place, and manner restrictions as the proper response to this latest wave of campus protests. The Natural Law in fact points to a surprisingly definite answer, considering how often Natural Law is criticized for its indeterminacy. This resolution is obscured by the human tendency to begin reasoning at the concrete level instead of beginning from first principles. Strong feelings about the details account for the range of disagreement amongst avowed Natural Law thinkers about today’s campus protests of the Gaza conflict and amongst their predecessors, sixty years ago, on campus protests of the Vietnam War. Proceeding from the general to the specific will help avoid that confusion without dodging the specific.

At its most general, Natural Law holds that truth is accessible to man through application of his reason. This classic bit of Aquinas is almost a tautology of the classical liberal idea, associated with Brandeis, Mill, and Jefferson, but originating with Plato, that, “truth drives out error” in a “marketplace of ideas.” To attack the idea that reason yields truth, as some have in the campus-speech debate, is to abandon the first principle of Natural Law—the discipline of reasoning from first principles.

To that major premise, add the minor premise that one purpose—telos, if you prefer—of universities is to discover truth. Of course, all modern American universities have other purposes, foremost to equip students with a grounding in the liberals arts or sciences, economically valuable skills, and credentials. And many private universities commit to pursuing truth in a particular time-proven tradition of faith. With those qualifiers, the question remains: how can universities best achieve the ends to which they are ordered? How can they best achieve the end of discovering truth?

The answer: By creating an environment most conducive to reasoned inquiry.

I assume that this answer remains widely shared ground—that most adherents to the Natural Law tradition remain quite confident that Hamas apologists forced to compete with reasonable inquiry will quickly be exposed as charlatans or simple-minded. If so, then only the next step opens space for disagreement—how to create an optimal reasoning environment?

First principles have already settled much of that question. They have already determined a standard for drawing the line between legitimate and illegitimate speech in the university context. Legitimate speech fosters the reasoning process by offering a proposition for honest examination. Illegitimate speech hinders the reasoning process. No idea is illegitimate because of its substance. Only certain manners of delivery are intolerable.

Like all standards, applying this one requires judgment, and that is always the difficult, contingent part. Fortunately, time, place, and manner restrictions are an ideal aid to judgment. They allow students and faculty to express any idea, so long as they do so in circumstances that will not prejudice expression of competing ideas or interfere with the university’s other purposes.

Here are a few rough-cut examples of time, place, and manner restrictions universities might use to identify communicative acts disguised as legitimate speech that are really tactics designed to cheat the contest of ideas by silencing other viewpoints. These suggestions draw on absolute principles of order and health that promote effective learning, but the precise mix and degree of restrictions can and should vary to match local circumstances.

First and most obviously, universities ought to prohibit personal attacks. Actual threats of physical harm to specific persons and attacks on individuals’ ability to reason have no place on campus. The former dissuade the threatened from offering ideas and the latter seek to avoid competition with certain ideas by disqualifying them through association with their proponent. Just as important, both forms of abuse distract their target from attaining the goal of education through dialogue.

Time, place, and manner restrictions ought also to prohibit expression that interferes with regularly scheduled university functions. These functions are ordered toward achieving universities’ various purposes, so interference with them inhibits schools from fulfilling their purposes. The more closely a university function relates to its primary ends, the more stringently the function should be protected from interference.

This broad category of illegitimate expression includes boycotting classes, blocking access to parts of campus, and preventing students from hearing scheduled guest-speakers. In-class speech must be restricted to topics relevant to class and casual talk that will not interfere with timely achievement of curricular goals. Protesters should be prohibited from concealing their identities because anonymity engenders careless speech and inhibits effective counter-speech. The need to protect effective education could also justify curfews for demonstrations as well as decibel and lumens limits and absolute prohibitions on demonstrations during exams and near libraries. These restrictions would ensure students have adequate opportunity to sleep, study, and show what they have learned.

Because universities must do their best to educate even student-protesters, faculty ought to treat absences and uncompleted work attributable to protesting as unexcused and subject to any ordinarily applicable penalties. And sick or injured students cannot learn as effectively as healthy students, so protest activities that significantly endanger physical health and wellbeing ought also to be prohibited. 

Still, basic safety and non-interference rules are not sufficient for a marketplace of ideas. There must also be competing ideas on offer. Speaking broadly, the failure of many American universities is the determination to be indoctrination centers of their favored ideologies—a mission they carry out by hiring an overwhelming majority of ideologues who are hostile to free inquiry precisely because their “work” cannot withstand honest scrutiny. Give them custody of unsupervised teenagers and you get students protesting in support of a terrorist organization. Universities seriously pursuing truth as a goal would hire social science professors who would teach Marx’s Communist Manifesto, but also Solzhenitsyn’s Gulag Archipelago. At such a university, you will not find many dozens of students willing to stake tents to camp for Hamas.

Short of reversing decades of hiring practices, to remedy the gross imbalance in the ideologies promoted by their professors, universities should use time, place, and manner restrictions to encourage a broad range of ideas. They might, for example, sponsor a series of debates between students chosen by their peers to defend opposing views. Schools that fear audience disruptions might livestream the debates without a live audience and publish them later or restrict live-audience size to manageable levels. Schools might also invite speakers to campus who hold different views on a contentious issue, guarded by similar anti-heckler precautions.

Even so, experience teaches that large groups of adult-bodied children living away from their parents for the first time are prone to immoderate acts of rebellion against established norms. University administrators might experiment with constructive outlets for this youthful energy such as tightly-regulated one-time 24-hour silent protests over a weekend night, perhaps with the possibility of scheduling more if demonstrators adhere to rules. Trial and error would be involved in any such experiments, but they would provide data points useful in discerning how best to direct restless youth.

These restrictions, and others like them, can promote an environment ideally suited to truth-seeking. Competing ideas are likely to be heard, and no ideas are off limits. But neither may “free speech” be used as cover to subvert the purpose of free speech—discovering truth.

Other thoughtful commentators have argued that the substantive message of students protesting the situation in Gaza is so thoroughly evil that universities should outright prohibit its expression. I can think of two reasons some think so and will offer what I think are better reasons to reject both contentions.

The first reason to prohibit this speech is that supporting Hamas—a group openly committed to genocide—is so obviously, absolutely, self-evidently evil that no good can come from discussing it. From this angle, it is morally wrong to allow students to express such repugnant ideas because that gives the ideas dignity they do not deserve, degrades the persons who naively express them, and seeks to dehumanize those who hear them.

I agree that genocide is always and everywhere evil and ought not dwell in anyone’s thoughts. And I agree that the evilness of genocide is patently obvious to almost everyone living in America today. Further, advocating genocide, particularly of Jews, is outrageously disrespectful to the tens of thousands of Holocaust survivors living in America and their descendants.

But prohibiting people from saying what they think will not change what they think. The only way to change minds is to examine beliefs, the ideas supporting them, and their consequences.

Then there are pragmatic considerations. The power to prohibit the expression of certain ideas will inevitably be misused. In America’s universities, that power will immediately be misused to prohibit true speech. It will, for example, be “threatening” or “violent” to use words that correspond to basic facts about individuals inscribed in the DNA of every cell in their bodies, or to defend our nation’s history as worth learning about and esteeming. And while I have no doubt that these irrational fads will eventually pass, I am equally certain that a discouraging number of intelligent people presently support them in good faith. But far fewer would if open discussion of them were not so strongly discouraged.

So we really do need to have open debate on whatsoever things are true, honest, just, pure, and lovely. If we do, the Natural Law will lead the majority to the right result most of the time. If we do not, then we are not using reason to access truth—we are not doing Natural Law.

The second reason one might prohibit students from expressing support for Hamas is doubt that truth really will drive out error. Genocide is a recurring theme of modern history and anti-Semitism has persistent staying power. That might mean that free expression inevitably leads to group-based hatred.

On the contrary, free discussion is the best defense against the darkest aspects of our nature. Debate is far from a perfect solution, but it is the best option available. At least our system of government is founded on this belief. Madison’s ingenious concept of achieving good government by dividing power among many competing groups is just one iteration of the liberal idea that an adversarial contest of ideas yields the best results. We ought not allow a relative handful of clueless adolescents, or their allies from outside the university, to drive us to willingly abandon our intellectual inheritance.

Yes, even liberal democracies badly misstep, though designed to make deliberative decisions after broad input and open debate. But overall, they have a far better record of respecting the inherent dignity of every human than do societies organized on a different model, all of which prohibit expression of disfavored ideas. That is why so many members of oppressed minorities throughout the world risk everything to come to the West.

Moreover, the better structured a “marketplace of ideas,” the more likely, and earlier, that truth will prevail. Consider that the demos of ancient Athens was prone to demagoguery because speakers engaged in ad hominem attacks and noisy crowds shouted down competing viewpoints, leaving the masses to rush to decisions based on incomplete information. Closer to contemporary concern, the decisions of Hitler’s Reich government were freed from parliamentary debate as early as 1933, and political and religious viewpoints suppressed, years before the Holocaust began. Had structures been in place to promote a free exchange of ideas, policies would have been different, maybe much different.

Zooming back to the topic of the day, the best way to defeat the radical ideologies causing college students to disrupt their campuses is to use time, place, and manner restrictions to create an environment in which those students must defend their ideas against the best that rationalism has to offer. If we ultimately conclude that such a debate would yield greater support for Hamas, then we have repudiated our faith in our Constitution and in the Natural Law’s central tenet—that God’s truth is accessible to man through the application of reason.  

Aristides is the pseudonym of a lawyer and former clerk to a federal judge.
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The James Wilson Institute’s Mission is to restore to a new generation of lawyers, judges, and citizens the understanding of the American Founders about the first principles of our law and the moral grounds of their own rights.
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