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And the other one wants to nullify freedom of association

The Daily Texan has a curious way of choosing its editor-in-chief each year.

Candidates write editorials laying out their vision, and then UT-Austin students vote online to “weigh in” on who gets the position (it’s not clear what effect this vote has).

The two candidates for the term starting June 1 are Janhavi Nemawarkar and Laura Hallas, and while they have contrasting visions for the job, both fundamentally misunderstand what role the public university can legally play in regulating offensive speech.

In her editorial, Nemawarkar expressed worry about the rise of white nationalist Richard Spencer and anti-feminist provocateur Milo Yiannopoulos. (Both editorials were published Friday, before unearthed comments by Yiannopoulos on age-of-consent laws blew up CPAC and his book deal.)

What should be our response to the protests and violence in reaction to these two? According to Nemawarkar, “we must learn to balance the protection of free speech with the fight against the normalization of these racist ideologies”:

There is a distinct difference between engaging in a contentious dialogue and the type of hate speech that emboldens racists. It is the role of students, organizations, student-run media and professors to ensure that open, wide-ranging discussions continue on campus. But in the interest of supporting students of color, students and university administrators must draw a line and ensure that individuals who espouse specifically hostile views are not validated by receiving a platform to speak here.

What she’s saying is UT administrators should be allowed to prevent (or threatened into preventing) student groups and faculty from inviting the speakers of their choice to campus, based on their views:

Speech can’t be taken in a vacuum — Donald Trump’s presidential election victory was accompanied by an outbreak of hate crimes around the country, including on college campuses.

Is this remotely constitutional at UT? No. Nemawarkar is campaigning on a platform that would get UT hit with a court injunction very quickly. (Sound familiar?)

Her editorial ends with the classic “free speech, but” argument. Reminder: This is a student journalist who wants to lead a major campus newspaper, arguing in favor of ignoring the First Amendment.

Hallas makes a better argument in her editorial, but just barely.

While confusing the U.S. Senate’s own rules of decorum in the “nevertheless, she persisted” kerfuffle with behaving “extrajudicially,” Hallas makes the solid point that “the fundamental consequences of suppressed speech” are the spread of that speech:

Public attention and support have a way of flocking to the perceived underdog …

This message is clear in the context of the civil rights movement — don’t suppress us, because it will only motivate us to come back, stronger. However, this effect also extends to intensely unpopular, even morally repulsive messages.

When violent protesters convinced the University of California-Berkeley to cancel a student group’s event featuring Yiannopoulos, “Berkeley students came away with a repressive reputation while Yiannopoulos emerges with an air of victimhood”:

The use of violence to suppress a controversial but legally organized event propagates notions that the primary victims of today’s society are white males, especially conservative ones. …

Vigilante attacks on less-public individuals have the same effect. Just this past week, a student’s identifying information was posted on University kiosks along with implicit encouragements of violence against him — presumably because of his political views. This should concern all students. Explicitly targeting fellow students for their controversial beliefs will only drive them further from participating in productive discussion, granting basis for victimhood.

Yet Hallas also makes an unconstitutional proposal, that the university has the right to compel speech by members of its community:

And if Yiannopoulos wanted to come to campus? Let him show his ignorance, but with preconditions. … Yiannopoulos may come if he likes, but he should submit to some fact checking in order to speak. Universities can protect free speech and host controversial speakers without compromising their informative missions.

Granting someone an open stage can feel uncomfortably close to an endorsement. The University should allow civil rights leaders and immigration lawyers to speak alongside such a speaker to prevent false equivalency. If this option doesn’t exist, students should fight for such a policy or review process.

“Allow” people to speak by forcing a student group or faculty to let people they didn’t invite speak at their own events? That’s not liberty – it is a direct attack on their freedom of association. UT, again, would get sued if it tried this.

And “an endorsement”? Hallas should read the University of Chicago’s Kalven report, which still guides that campus nearly 50 years later and was reaffirmed six years ago:

The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic.  To perform its mission in the society, a university must sustain an extraordinary environment of freedom and inquiry and maintain an independence from political fashions, passions, and pressures.

Hallas also could use a refresher on the “fighting words” doctrine in Supreme Court jurisprudence, which is not just “speech that incites immediate violence,” as she breezily claims. Here’s a good primer from the First Amendment Center.

Maybe next year’s application process for editor-in-chief can require candidates to take a course in First Amendment basics at public universities. It won’t stop them from making unconstitutional promises to gin up votes, but perhaps they’ll feel guilty doing it.

h/t Peter Bonilla

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