Transcripts For CSPAN3 Hearing Focuses On Free Speech On College Campuses 20170623

Amendment on College Campuses. Heard from College Students and University Officials at this event held by the Senate Judiciary committee. Its two hours. Welcome everybody. Good morning. Today our Judiciary Committee considers an important and timely topic. First amendment on College Campuses, senator feinstein and i will give Opening Statements and we will also have Opening Statements from the chairman and Ranking Member of the constitution subcommittee that senator cruz and senator blumenthal, Higher Education rests on the free flow of ideas. Education requires that positions be held tentatively, tested by opposing arguments that are rightfully considered and evaluated. All colleges therefore must protect free speech. Public institutions must adhere to the various guarantees of our First Amendment. Too often all these fundamental principles have been under assault, even worse some people will have exercised their First Amendment rights have themselves been assaulted. As a result, those who would curtail free speech have been emboldened, and those who disagree with the prevailing orr orthodox si have been censored or killed for speaking freely. Theres no point in having a student body on campus if competing ideas are not exchanged and analyzed and respected by each other. At Kellogg Community College Administrators required prior approval of speech in public forum, a twofold violation of the First Amendment. Amazingly, students there were arrested for distributing copies of the u. S. Constitution. Their lawsuit against the college and against administrators in a personnel capacity is pending. Many students erroneously think that speech that they consider hateful is violent, yet some students engage in acts of violence against speech and universities have failed to prevent or adequately punish that violence. On the university of california berkeley, two invited speakers were prevented from speaking due to mob violence and other projected safety concerns that the university failed to control. That university should be reminded of a passage in one of the Supreme Courts most important First Amendment rulings, quote, if there is any fixed star in our constitutional constellation, it is that no fictional higher betting can be described as orthodox in politics, end of quote. A lawsuit has been brought that alleges that berkeley has systemically and intentionally suppressed speech protected by First Amendment because viewpoint differs from that of University Administrators. At middleburg college, the eminent scholar dr. Charles murray was at first shouted down from speaking, then when the event was moved students pulled the fire alarm to prevent him from speaking. It was not dr. Murray but the students who essentially yelled fire in a crowded theater. The professor who administered who moderated the debate was physically assaulted and has yet to fully recover from her serious injuries. It was not a mere handful of students but a mob who engaged in such appalling conduct at an institution theoretically devoted to rationality and intellectualism. Not including those who were not captured on video, the College Discipline warden 70 students, but none was expelled or even suspended. As a practical matter more students received no more serious punishment than the double secret probation immortalized. As dr. Murray noted such weak punishment will not deter any future students destruction. The First Amendment is very clear, the Supreme Court has decided that offensive speech is protected, that speech cannot be restricted based on viewpoint, that Public Forums must be places where free speech rights can be exercised and that prior restraint on speeches are highly disfavored. Otherwise any speech that anyone found offensive could be little free speech would survive. As justice said, quote, if there is any principle of the institution that more imperatively calls for attachment than any other it is the principle of free thought. Not free thought for those who agree with us, but freedom for the thought that we hate and oppose. But on too many campuses today free speech appears to be sacrificed at the alter of political correctness. Many administrators believe students should be shielded from hate speech, whatever that is, as an exception to the First Amendment. Unfortunately this censorship is now different from any other examples in history when speech that authorities deem to be has been sub rest based upon its content. Even more unfortunate the anticonstitutional attitude is so pervasive that students are being socialized and possibly indoctrinated into favoring censorship at odds with our First Amendment. A recent gallup poll found students by 6139 margin believe that it is desirable to restrict the use of slurs and other language intentionally offensive to certain groups, and by 7227 margin they favored restricting expression of political views that are upsetting or offensive to certain groups. College students both not only academia but our democracy depends on the ability to try to advocate, to inform or to change minds. When universities suppress speech, theyre not only damage freedom today, they establish norms our hope to democracy going forward. These restrictions may cause and exacerbate the political pervasive that is so widely lamented in our society. Whatever the nature of the speech suppressed, we all ought to be concerned, and i am. However, prominent liberal University Administrators admit that the vast amounts of disfavored speech is on the conservative side of the spectrum. Harvard president recent commencement address, which i will put in the record, notes the lack of conservative ideas on campuses. And as former standard pro vo has observed, quote, there is a growing intolerance at universities, a political onesidedness that is the antithesis of what universities should stand for, end quote. And he fears that University Administrators will take the easy route of giving in to students pressure to restrict debate. I ask to include his records on the mark as well. Many fears are being realized in a recent interview the president of North Western university undercut the apparent lip service he paid to the First Amendment rather than making students confront the speech that makes them uncomfortable, he advocated making students feel comfortable by ensuring a safe space where they will not hear it. Even worse, when they ask whether would be comfortable or the speaker shouted down in middlebury and berkeley to speak at North Western, he replied that he would permit their appearances, quote unquote, on a case by case basis. No, the First Amendment does not permit arbitrary prior speech on administrators on a case by case basis. That is an open invitation to discriminate based on viewpoint. Thats where too many colleges are right now. A reality great universities would welcome speakers whose position made the president of the university and many others uncomfortable on campus uncomfortable, some may advocate legislation in this area, theoretically private colleges that accept federal funds could be subject to individual private lawsuits when free speech rights occur. Or dont occur, including religious free speech, if those are all violated. Some may even suggest analog section 1933 under that approach officials at private universities that accept federal funds would be subject to individual rights of action for damages if they violate free speech or fail to train University Officials and Campus Police to adhere to the First Amendment. Fortunately, not all schools adopted censorship approach. University of chicago has adopted a policy that some other universities have followed, which i will put in the record. This policy prohibits the university from suppressing speech that even most people on campus would find offensive or immoral, it calls for counterspeech rather than suppression of people who disagree with speech and while protecting protest, it expressly prohibits, quote, obstructing or otherwise interfering with the freedom of others to express views that they reject or even loathe. Finally, it commits the university to actively, quote, protect that freedom when others attempt to restrict it, end quote. We have a distinguished panel of guests that i welcome, senator feinstein. Thank you very much, mr. Chairman. Im going to put my remarks in the record. And i am just going to make a few reflections on some of your comments. I agree with some of what youve said. I disagree with others. Lets take a look at the First Amendment. The First Amendment says that Congress Shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. Or of the freedom of speech or of the press or right of the people peaceably to assemble and to petition the government for a redress of grievances. The fact of the matter is there are certain occasions on which individuals assemble not to act peaceably but to act as destructively as they possibly can. And i know a little bit about the university of california. And you cited berkeley. The president of that university is known to all of us. She was the governor. She headed a 250,000 staff Homeland Security department here. She is tough. She is strong. She is fair. She is able. And the question comes that when you have a set group of people that come to create a disturbance and some of them even Wearing Masks or wearing certain clothing, what do you do . And Big University Police Departments, its been my experience, dont always have the equipment, meaning mental and training equipment, to be able to seek it out, to handle it, to isolate it. So you run the risk of substantial harm. And that was what judgment the University Made in one situation recently that it would become a drawing card for groups that range from anarchists to just very unsavory people to be violent. That is really a horse of another color. I was mayor during the Democratic Convention in 1984, and i can tell you there was a lot of fear at that time about what might happen at that convention. So we took a lot of made a lot of plans to be able to handle it, got extra help and we did handle it. And there was no violence. And it was a good convention. And maybe universities should be and have the ability financially to really develop the kind of intelligence you need and the kind of policing that you need at some of these events. I mean, i went to a smaller private university, there was never a problem. But you have big universities and one of the largest is the university of california with ten campuses over 250,000 students. So there are instances of problems from time to time, but i think our efforts would be much better finding methodologies to handle those incidence. I know of no effort at berkeley, the university of california, to stifle students speech, none. And if there is a specific effort, i would certainly appreciate it if people brought that to my attention. But i do believe that the university has a right to protect its students from demonstrations once they become acts of violence. And i hope today that there will be some discussion of when does speech become violent skpr, and do you do to stop that violence . Because we all want freedom of speech. I dont want anything different than you want in that regard. But maybe i live in a different world having been a mayor at y tim ul chous time, having gone through assassinations and understanding what happens in big dissent. So, you know, my state isnt your state, but the volume here can be very large. So i just wanted to make those comments and say that its not a simple matter when demonstrations become violent. Senator cruz. Thank you, mr. Chairman. And thank you for holding this very important hearing. Free speech matters. Diversity matters. Diversity of peoples backgrounds, but also diversity of thought, diversity of ideas. Universities are meant to be a challenging environment for young people to encounter ideas they never seen, they never imagined and that they might passionately disagree with. If universities become homogenizing institutions that are focused onn indoctrinating rather than challenging, we will lose what makes universities great. First amendment is not about opinions you agree with. Its not about opinions that are right and reasonable. The First Amendment is about opinions that you passionately disagree with and the right of others to express them. Its tragic what is happening in so Many American universities where College Administrators and faculties have become complicit in functioning essentially as speech police. Deciding what speech is permissible and what speech isnt. You see violent protests, senior senator from california referred to, in acting effectively a hecklers veto where violent thugs come in and say this particular speaker i disagree with what he or she has to say and therefore i will threaten physical violence if the speech is allowed to happen. And far too many colleges and universities quietly roll over and say, okay, the threat of violence we will effectively reward the violent criminals and muzzle the First Amendment. I saw a recent study of the foundation found majority of College Students believe the climate on their campus has prevented people from saying what they believe. Out of fear what an indictment of our university system. And what does it say about what you think about your own ideas . If ideas are strong, if ideas are right, you dont need to muzzle the opposition. You should welcome the opposition. When you see College Faculties and administrators being come police it pli sit in silencing what theyre saying is they are afraid. Theyre afraid their ideas cannot stand the opposition, cannot stand facts or reasoning or anything on the other side. And it is only through force and power that their ideas can be accepted. Im one who agrees with john stewart mill, the best solution for bad ideas, for bad speech is more speech and better ideas. Are there people with not good ideas in the world . Absolutely. The nazis are gro tes k and repulsive and evil. And under our constitution they have a right to speak and the rest of us are a moral obligation to denounce what they say. The ku klux klan are a bunch of racist bigoted thugs. Who a right to express their views. And we have an obligation then to confront those views which are weak, poisonous and wrong and confront them with truth. We dont need to use brute force to silence them. Because truth is far more powerful than force. This is an important hearing. I thank the witnesses for being here. I thank the chairman for hosting. Senator cruz is chairman of the subcommittee on constitution. Senator blumenthals Ranking Member. I go to senator blumenthal now. Thanks, mr. Chairman. And thank you to all my colleagues for their comments and to the witnesses for being here today on this very important topic. We would do well if this issue hardly new to democracies and in particular our democracy. I can remember well as a Young Harvard student observing the visit of secretary of defense Robert Macnamara to our campus during the height of the beginning of the vietnam controversy when his car literally was pounded on, and he was physically threatened by protesters. The vietnam protesting went like others, often lent itself to excesses that seemed threatening at the time. And then as a reporter, i had the privilege of covering the convention in chicago in 1968, not in the convention hall, but in the streets where tear gas and physical confrontation were more common than rational discourse. It is the essence of democracy that we have diversity as senator cruz observed quite correctly. Diversity involves differences and differences of opinion can lead to disagreements, which in turn can lead to conflict, physical conflicts. And what we celebrate always on this committee is the rule of law, which establishes blame and also lines at town halls that many of us conduct where people have to wait in line rather than interrupting each other. So rule of law really provides a sense of order and a respect for each others opinions. And that brings me finally to the main point that i think i want to make, which is that respect for the rule of law is really so fundamental to this conversation. And disrespect for the rule of law we have seen all too often outside universities as well as in. Universities are not isolated enclaves that are in some way the kinds of confrontations weve seen on universities reflect the fighting words that are often used by politicians and others in our society that may be designed to provoke violence. And we should be mindful of our own duties to be respectful of the law and to make sure that we particularly respect the First Amendment which says as senator feinstein quoted so well, no law. Now, i recognize that some of our justices or judges have said no law means absolutely no law, but we also know that theres a need for balance. And the balance is not easily struck by simple sweeping generalization. These issues are complex and they do involve balance. And i would just emphasize how important the respect for rule of law and time, place, manner, definition of the exercise of these rights is on campuses, at rallies, in town halls, all across this great country. I as a prosecutor and state attorney general, federal prosecutor and state attorney general advocated laws against hate speech or hate crimes, i should say. And respect for speech that could be preserved and the striking of that balance is just one area where i think we need to take lessons from the experience that you bring to us today. And while we talk about the respect for the rule of law, chairman, i want to take this opportunity to thank you and Ranking Member feinstein for beginning our investigation and inquiry into political interference in the department of justice exemplified by the firing of director comey and related actions. And i hope that we will pursue that political interference promptly and rigorously and comprehensively because i think, again, any kind of interference, obstruction of justice or related criminal activity or civil interference with the rule of law i think bears very, very close scrutiny and examination by this committee. We have that duty. And i am very thankful that you, mr. Chairman, and our Ranking Member are proceeding along this course. I want to publicly thank you for it. Thank you. Out of respect for senator durbins schedule and being democratic whip, ill call on him for a few. Thats very kind, mr. Chairman. Thank you. Ill try to be brief to the point. It was 11 years ago and there was debate on the floor of the United States senate on the First Amendment, freedom of expression, freedom of speech. Let me read what one of our colleagues said about our debate and our decision when it came to that free speech. He said, this is senator daniel inouye, democrat of hawaii awarded the medal of honor for his service in world war ii. This is what he said, this objectionable expression is obscene, painful, unpatriotic, but i believe americans gave their lives in many wars to make certain all americans have the right to express themselves even those who harbor hateful thoughts. In just a few words with economy of style senator inouye put his finger right on what this debate is all about, the fact that we have to be prepared if we believe in this constitution and this bill of rights and freedom of expression to as a senator from texas said earlier, to sit back and put up with some hateful comments and hateful conduct, racist comments, antisemitic comments, all of the above. The reason i bring up the quote from senator inouye is the debate was about the flag burning amendment. The flag burning amendment which basically failed by one vote on the floor of the senate to ban the desecration of the flag by burning, to make an exception, the first exception in history to our fellow rights and freedom of speech. Do i find the exception in hist our bill of rights and freedom of speech. Do i find the burning of an American Flag hateful . You betday and i bet everyone in the room agrees with it. But it tests the same basic principle are we prepared to defend a persons right to do that as much as we hate it . In the name of standing behind this constitutional principle . Well we missed by one vote. Of changing the constitution. When it came to the desecration of the flag. It was painful. As painful as it gets, i think on the Senate Judiciary committee. But a reminder of what we pay and the cost that is exacted when we stand behind this principle of free speech. Thank you, mr. Chairman. Im going to introduce a guest now from my left to my right and then well have you speak in the same order and well ask questions after all have spoken. Zachary wood, is robert l. Bartley fellow, wall street journal and class of 2018 herbert scholar at Williams College where he served as president of uncomfortable learning, a Student Group that sparked National Controversy for inviting provocative speech, speakers to campus. Frederick lawrence, is a 10th secretary and ceo of Phi Beta Kappa sew side and served as president of brandeis university. Isaac smith, is a law student at the university of cincinnati. Where hes also pursuing a masters of arts and political science. He earned his bachelors of arts from Ohio University. While at Ohio University isaac was associate director of students defending students. A Student Organization that assists students accused of violating the schools code of conduct. Dr. Fanta ah, is Vice President of campus life here at American University in d. C. Dr. Ah earned all of her degrees at American University, bs, ba in accounting, m. A. In Public Administration and ph. D. In socialology. Eugene volok is gary t. Schwartz distinguished professor of law, ucla school of law. Where he is noted academic expert First Amendment. Professor obtained both his bs in math, Computer Science and jd from ucla. Richard cohen is an attorney and president of the southern poverty law center. Mr. Cohen is a graduate of the columbia university. And university of virginia. School of law. Floyd abrams, senior counsel new York Law Firm of cahill gordon, wrangle and is leading First Amendment litigator, he received his b. A. From cornell university. And his jd from yale law school. Before you start to speak, zachary wood, two things i never gavel people down at the end of five minutes, but i hope when the red light goes on that you can sum up very quickly. Also for my colleagues, we have two votes at 11 00 and its going to be very necessary for us to keep the Committee Meeting going while we cast those two votes, so i hope people will take turns chairing while so we can keep the testimony and questions going. Mr. Wood, would you start . By the way your entire statement will be put in the record. Your longer statement. Madam Ranking Member and distinguished members of the committee. I am honored and privileged to have the opportunity to appear before you. My name is zach wood. Im a senior and the president of uncomfortable learning at Williams College. Over the last two years, ive advocated for the importance of engaging controversial and offensive views on College Campuses. When i arrived at Williams College to begin my freshman year, i had high hopes that my intellectual experience would stimulate vigorous debate. And encourage robust and open discussion of controversial issues. I identify as a liberal democrat who supports many progressive causes. Yet i adamantly believe that students should be ebb encouraged to engage with people and ideas that they vehemently disagree with as president of uncomfortable learning at williams, i strive to broaden the range of political discourse on campus, by inviting speakers with challenging, provocative and out of the mainstream views on pressing issues of our time. I joined uncomfortable learning, because i wanted to push my intellectual limits. I wanted to confront controversy. I wanted to clarify the issues that challenge us most and why. I wanted to discuss the content of competing arguments and how best to respond to unwelcome ideas, and offensive speech. Humanity is not limited to the views and values that we admire. Humanity also encompasses the thought and action we resist. To gain a deeper understanding of humanity, i have made a concerted effort to understand as thoroughly as possible the visions and convictions of those whose arguments i diametrically oppose. In doing so, i have faced considerable backlash from the student body. The acrimonious response was bad yet i chose to ignore the attacks and continued pressing forward. During my sophomore year i invited pop math author and conservative commentator to speak at williams about race and National Identity my announcement of derbishers nomination angered many on campus precisely because he had previously made incendiary comments of africanamericans. Within 48 hours of the event the president of Williams College canceled the speaker. Days later the president enacted new speaker policies that made bringing speakers to campus an especially arduous process for my Student Group. What i find impermissible, undemocratic and anti thet cal to the intellectual character of the college i attend was the president s decision to disinvite a speaker solely on the basis of his inflammatory remarks about race. At williams, the administration promotes social tolerance, often at the expense of political tolerance. In my time at williams, i cannot name a single conservative speaker that has been brought to campus by the administration. This fact is problematic precisely because the overwhelming majority of students at williams have liberal beliefs. This adds to what many commentators have referred to as the chamber. In classrooms, liberal arguments are often considered unquestionable truthsz in some cases conservative students feel the need to refrain from stating their opinion in fear of being shut down. I appreciate the desire of my administration to insure that all students on campus feel included. Yet, i deplore the state of free speech and intellectual freedom on my college campus. In our present moment williams is just one of many colleges that has disinvited controversial speakers. At colleges and universities across the country students face free speech codes. And other infringements on their First Amendment rights. Instead of nurturing thoughtful debate on controversial topics, many College Educators and administrators discourage free debate by shielding students from offensive views. Yet, one persons offensive view is another persons viewpoint. To some ardent defense of free speech is characterized as a conservative attack on liberal progressivism. That the real issues that need to be discussed on College Campuses are racism, sexism and microaggressions. To be sure, those issues are critically important. Yet the fundamental problem with this characterization is all of these issues intersect and none can be resolved without an appreciation of free speech and intellectual freedom in Higher Education. For me, spree speech is not about grinding and partisan axe. Its not about promoting or advancing a particular set of ideological preferences, i care deeply about my education and i value the freedom to interrogate all manner of beliefs in hope to gape a deeper understanding of the world and using that knowledge to one day make a positive difference in the lives of others. For me, free speech and intellectual freedom matters, because free speech and intellectual freedom are among the founding principles that animate the vibrance and insure the sus tennan asustenance of o. Thank you, mr. Chairman. Thank you, mr. Chairman. Ranking member and distinguished members of the panel. May i start with a point of personal privilege and say as a Williams College alumnus i am proud to be sitting next to what my college is now producing. Members of the committee, the chalg challenges of Free Expression on our campuses have never seemed greater. I know this from my years as a Law School Dean and a University President. That the challenges come in all directions and from all contexts. They come from the left, and they come from the right. They involve students, they involve faculty, they involve outside speakers and mr. Wood has just talked about. Given the coarsening of our Public Discourse and the lack of clarity about our core value of Free Expression, its perhaps no surprise that the issue presents itself with such urgency on our campuses, public and private, small and large. So at this moment, it is particularly important that we recommit ourselves to First Principles. And this hearing is a welcome opportunity to begin to do so. The Ranking Member poignantly talked of the context of large units and perhaps as the only person sitting in this room who has been a University President im grateful for someone understanding the complexities of that role. It is precisely at times that University President s face like these were talking about, that First Principles are essential, let me state three. First as each of you has mentioned, robust Free Expression and free inquiry are central to the mission of our colleges and universities. Second, the limits of such expression which should be all the way at the margins of expressive activity should turn on the intent of the actor and not on some crude attempt on our part to distinguish speech from conduct. An threat is different from intent. Third theres an obligation as senator cruz said a moral obligation in my view to respond to hateful speech, not to suppress it. But to respond clearly and forcefully. Universities and colleges in this country have a mission i would say a Sacred Mission to create and discover knowledge and transmit that knowledge through our teaching and scholarship. So it should go without saying that robust Free Expression is central to that. As a result speakers are presumed to be permitted to speak and should expect to face questions and answers. Students and to give answers. Students and faculty are presumed to have their writing and their speaking protected. So is there a limit to this expression . When does it cross over from protected expression. Into something that would be prohibited. Or in a campus context into a context where sanctions would be. As i said, i believe this turns on the intent of the actor. Let me give a different example from Williams College and this is with the prior president of Williams College, although mr. Chairman, that prior president is now the president of northwestern university. So he does seem to keep coming up in this discussion. When i was a trustee at williams, there was an event in which a student had had on her door the leader of the jewish Student Group at williams on her door, posted a flyer that said she should evacuate her room immediately, and this was meant as a faux eviction notice to parody what has happened in israel with palestinian homes in the Israeli Defense force. President of the college called me up and said, is there something we can do about this . And i said we need to know what is the in the mind of the student who did this. I said how would we possibly know that . And i said why dont we find out how the flyers were distributed. Was it just on one students door . Or as turned out to be the case, were they put on the doors of every one of the doors in that dorm . In which case in my view and in his, demonstrate a stronglyheld political view offensive to some disagreeable to many, but nonetheless, one that should be protected. And therefore, the speech was protected, no conduct should be taken, no action should be taken for that conduct. But what of speech is protected is particularly hateful. Here i go back to something that senator cruz said at the beginning. I believe Justice Brandeis had it right when he said the answer is not enforced silence, but more speech. Conduct this time of expression is not representative of the best values of this college, the best values of this university. Thing that holds us to the highest level of what ircolleges and universities are about, not merely to educate but to provide the citizenry thats the essence of a democracy. Thank you, mr. Chair. Chairman grassley, Ranking Member feinstein and distinguished members of the committee. Thank you for the opportunity to share my story with you today. My name is isaac smith and i am a rising thirdyear law student at the university of cincinnati. Prior to attending ump c for law school i studied at Ohio University where i was involved with an Organization Called students defending students. We assisted students on campus accused of violating these schools code of conduct. Helping them through the disciplinary process. And every year to raise awareness about the organization and our work. We produced tshirts with a funny slogan on the back. In 2012 our tshirt said who you gonna call . With the os made up by handcuffs but our 2013 tshirt which displayed our founding sloane slogan, we get you off for free, proved to be unexpectedly controversial what flew in the 70s when students defending students was found dd not fly in 2013. We wore our suits at the student involvement fair, on the main campus screen where freshmen can learn about campus activities. Sd ss president was recruit new members i posted a picture on our twitter account of one of our members handing out flyers while wearing the shirt. An administrator saw the tweet and told us we werent to wear the shirts again. That the shirts objectified women and in a total headscratcher, that they promoted prostitution. That was worrying to us, because as advisers about student conduct process, we knew the student code of conduct inside and out. Although our slogan was unquestionably protected by the First Amendment, our campus policies were so broad that we risked discipline for wearing the shirt and i knew that ou has a history of punishing students for protected speech. So i reached out to the foundation for individual rights and education or fire, a nonpartisan, nonprofit organization, that defends free speech on College Campuses and with fires help, i sued Ohio University. To stick to the section of code of conduct that would have allowed us to be punished and even expelled for wearing the shirt. After that lawsuit things happened. After only a few months, ou settled the lawsuit favorably. Changing the code of conduct. So that it protected Free Expression and paying out 32,000. In damages. We were also allowed to wear the shirts. It is unfortunate that i had to take such serious action to get things fixed. But sometimes thats what needs to be done. Some administrators are not going to Pay Attention to whats legally right unless they are forced to do so. And my experience at Ohio University was unfortunately not isolated. Examples of campus censorship are plentiful. In one case, a former student at calpoly pomona needed a free speech badge to hand out literature promoting Animal Rights and a vegan diet in his schools free speech zone. In another case, a former student at my current school, university of cincinnati, was threatened with arrest fortress passing. For Gathering Signatures outside of the university of cincinnati. Free speech zone. And there have been multiple cases across the country, where students have been prevented from distributing copies of the United States constitution in open, outdoor areas of their campuses, because they were doing so outside of their schools misleadingly labeled free speech zones. And i would like to thank you chairman grassley for bringing up an example of such a thing in your opening remarks. We know that Administrators Nationwide are stifling free speech. So i thank you again for the opportunity to testify here and share my story and for putting the spotlight on this national problem. Chairman grassley, Ranking Member feinstein and the committee thank you for the opportunity for being here today. The challenge for leaders on americas campuses today, is to maintain balance when protecting important values that are often intented. Especially the context of our nations Political Climate and considering the views of the First Amendment among younger americans. Compared with a generation that have come before them. Critical expression is an important principle on colleges and universities. Not just public universities where First Amendment rights must be protected. But also private institutions. Because our fundamental mission to create, share and exchange ideas. Knowledge and discovery is dependant on the basic tenets of Academic Freedom and the Free Expression of ideas. Another important principle is the respect and dignity with which we expect all members of our community to demonstrate when exchanging ideas, particularly divergent ideas. Civil discourse and dialogue representing diverse perspectives, is integral to learning and scholarship. These principles are fundamental to educating citizens who will lead Productive Lives and contribute to a healthy democracy. Campuses around the country including American University have seen a rise in the episode of deeply offensive speech and expression. From racist statement and acts, to flagburning. These expressions come from within. From our own students, faculty and staff, as well as the forces outside our community. Whether a visit from Westborough Baptist church. As an institution committed to freedom of expression and diversity of inclusion, that sees protest as manifestation of Free Expression, we have effectively managed numerous events that would be deemed controversial. Were guided in this work by our freedom of expression and dissent guidelines and by the American University faculty resolutions on freedom of expression. The resolution states that for hundreds of years the pursuit of knowledge has been at the center of the university life. Unfettered discourse, no matter how controversial inconvenient and uncomfortable is a condition necessary to that pursuit. And American University stands in this tradition. As an institution we draw the line when expression that has the potential to incite violence and or is a direct threat to members of our community. The most recent among this episode of speech is currently being investigated as a hate krin by the fbi. On the last day of classes this spring racist expressions threatening physical violence to africanamerican who are members of the Alpha Kappa Alpha in her first day in office as president. With an increasing frequency of such episodes, the ability of students to learn and thrive has been severely limited. When students fear for her safety. This affects their ability to study and to participate fully in the life of the university. In short, maintaining a commitment to our values and balance among them is complicated and requires robust policies, as well as constant education and training. American university has robust policies for protecting freedom of expression. As well as Academic Freedom. We must also investigate, respond and report crimes that are motivated by biased, as required by both federal laws and local laws. Just as local laws treat bias as an aggregating factor in sentencing for crimes, so, too, does our code of student conduct. Which was modified this year to consider bias motivation for those found responsible for violation. If theres a takeaway from this testimony is that free speech comes with responsibility and accountability. Freedom of expression is integral to the mission of Higher Education. However, protecting it has become increasingly challenging in light of our national climate, changing attitudes of younger americans about the First Amendment and ever more diverse populations on our campuses bringing diverse perspectives and expectations into constant attention. Thank you. Technology. Thank you. So just yesterday, the Supreme Court reaffirmed that there is no hate speech exception to the First Amendment and the viewpoint discrimination is generally speaking forbidden. Including not just the criminal laws, but even as in that basic exclusion from the various trademark programs that the government ran. And the same applies to speech on college campus. That the government may not punish speech because of the viewpoint it expresses, whether it uses it hateful or otherwise. In Justice Kennedy writing for four of the eight justices who participated, i think quite well put said a law that can be directed against speech found offensive can be turned against the minority in defending views to the detriment of all. That seemingly restrictions on speech that broadly suggests as wrong and offensive can very quickly turn into suppression of dissent and historically often have. Let me illustrate this with an example from the testimony of dean lawrence, testimony that i in general very much agree with. Including in the rejection of an exception proposed exception for hate speech, note the definition thats offered there. Hateful speech that which defends a group along National Sexual identity lines. Dean lawrence did not call for suppression of such speech. But many do, thats not an uncommon definition. What that means is a vast range of speech flagburning which should be considered constitutionally protected. That offends along national lines. Debates about religion will often offend groups along religious lines. Perceived as blasphemy. Debates about samesex marriage, it will indeed send some people along Sexual Identity or Sexual Orientation line. Condemnations of White Privilege and the like, may offend people along racial lines. Whether or not theyre accurate and sound or not. So i think the court has been quite right in rejecting this section. There is of course there are of course times as senator feinstein pointed out that the university isnt trying to suppress free speech because it finds it offensive. But enough people who are willing to stoop to violence find it offensive. Theres the threat of a violent reaction. I tend to degree with senator cruzs view that that kind of hecklers veto should not be allowed. The question is when you have a set group of people who come to create a disturbance, what do you do . I think the answer is to make sure they dont create a disturbance and to threaten them with punishment, meaningful punishment if they do create a disturbance and not to essentially let them have their way by suppressing the speech that theyre trying to suppress. One of the basics of psychology that i think weve learned all of us that are parents i think weve learned it very firsthand is behavior thats rewarded as repeated and when thugs learn that all they need to do, in order to suppress speech is to threaten violence, then theyll be more threats and more threats from all over the political spectrum. I think the solution to that is to say that speech will go on. And if that means bringing in more Law Enforcement and against making sure that those people who do act violently or otherwise, physically disrupt, that they be punished. I agree with what senator blumenthal said, respect for the rule of law is a fundamental principle of American Life and a fundamental principle that American University should be teaching and one aspect is if you violate the law and if i hear this, laws against vandalism, laws against violence, laws against advisably shouting people down and in that case you will be punished rather than having your, your goals being achieved by having the speaker whom youre trying to suppress in fact be suppressed by the university. So it seems to me that the courts have made it quite clear and i think my sense is that the view of the committee has been likely the view of the congress is quite clear on this as well. That speech has to be protected. Universities campuses regardless of, of the viewpoint. Some speech should indeed lead to criticism. Whether by University Officials or by others. But there is no and should be no exception for supposedly hateful speech or speech of any other viewpoint. Whether its flagburning or otherwise on University Campuses. Thank you. Thank you, chairman grassley. Thank you Ranking Member feinstein. Its an honor to appear before the committee this morning. Particularly with my fellow panelists. I think we all degree on certain fundamental points and that is that the First Amendment is of paramount importance. Particularly at institutions of Higher Education. Yet in recent months, the commitment over of our universities to the First Amendment has been tested as speakers from a newly energized White Nationalist movement have been making the rounds on College Campuses. These speechers, particularly Richard Spencer and milo gene op list have drawn protests not just from students but from looselyorganized violenceprone outside groups of socalled antifascists. The presence of these groups has led to an equal yet opposite reaction, the formation of outside groups dedicated to fighting the antifascists. Its a combustible situation. This april Richard Spencer was scheduled to speak at auburn university. 50 miles from our office in montgomery. Spencer, as im sure the committee knows is a leading White Nationalist speaker who popularized the term altright. At a highly publicized White Nationalist rally shortly after the president ial election, spencer gave a speech ending with hail trump as many in the audience sigheiled. In his First College speech following his november rally, spencer stated, america belongs to white men. We own it. In advance of spencers scheduled appearance at auburn, we checked to insure that the University Police knew about the problems that other universities had recently faced when controversial speakers came down and we suggested that the University Administrators in the college club we sponsor at auburn, that they hold an alternative event to highlight their commitment into inclusion in our nations Democratic Values, we have no observe of course to peaceful protests. But we suggest that students not give racists and audience and we dont want students to do anything that allows speakers, racist speakers to portray themselves as First Amendment martyrs. Auburn initially issued a statement that it was the right thing to do, the First Amendment doesnt require universities to be neutral when racist speakers come to town. As senator cruz said they can and should take a position but auburn canceled speech out of fear that spencers presence would provoke violence. That was the wrong thing to, do the university was perfectly capable of providing for security. As senator feinstein suggested, there may be some instances where thats not the case and universities have to take steps to cancel a speech. As Justice Jackson said, the constitution is not a suicide act. That would be a rarity. Auburn lost the case in court and handed Richard Spencer a victory in the process. And an outcome that allows a man whose views are inimcal to our founding principles to parade around as a First Amendment hero, given the climate in our country, i think well see more violent confrontations on College Campuses when School Starts this fall as representative mark sanford recently put it, the rhetoric surrounding the president ial campaign has unearthed some demons. Since the election, weve documented nearly 200 instances of racist flyers being distributed on College Campuses and detected a surge of bias acts harassment and intimidation in schools and communities across the country this sunday Richard Spencer is scheduled to speak at a rally at the lincoln memorial. Something that i find to besacr. Hell be founder of one of the White Nationalist groups thats recruiting on College Campuses. Their First Amendment rights must be protected. We must not ignore the increase in White Nationalist activity around the country and on our College Campuses. We need to fight speech that threatens our nations Democratic Values with speech that upholds them. Its an obligation that University Officials have and that everyone in public life starting with the president , has as well. Thank you. Thank you, mr. Cohen. Mr. Abrams . Thank you. Senator grassley. Ranking member feinstein, senator cruz and other members of the committee that are here. I wanted to add another line from the Supreme Courts opinion yesterday. In which the court by an 80 vote said the following speech may not be banned on the ground that it expresses ideas that offend. Thats the law. Thats what the First Amendment teaches us, that was the basis of yesterdays ruling. It has been the basis praised differently through the years. But phrased consistently through the years. Thats been the basis for the protection of First Amendment rights. But what brings us here today is that time and again, speech is being effectively banned on campuses, because the speaker has ideas that offend. It does not arise because in the main universities administrations are seeking to suppress speech. It arises more often than not because students find it intolerable to have certain speakers appear and certain ideas expressed. With which they disagree and with which they find offensive or even outrageous. And so we have a record before this committee from the testimony of the people who have preceded me. And from what has occurred throughout america. Speakers being silenced when they say or are expected to say unpopular or disagreeable things. Ray kelly, the distinguished former Police Commissioner of new york, shouted down at brown university. The mayor of jerusalem, shouted down in San Francisco state. I could go on with those examples. There are situations of invitations being withdrawn. For fear of offending students. Christine lagarde, the first woman ever to head the International Monetary fund. Canceled for fear of students disapproval and the like. We have speakers who have withdrawn because it has been made very clear to them that they would be unable to proceed with their speeches. Condoleezza rice for example and we have a situation where again and again, speakers have been muted on campuses by saying that they could appear, but only appear if they appeared on panels. And not spoke individually. So this is a real, a real ongoing problem. It is not a new problem of this month or even this year. But it is something which has gotten significantly worse and more threatening. As time has gone on and as other speakers have pointed out. As the polarity in our country has become more obvious. The polarity on campuses has been the same. I have to say that i recall a time many years ago when i was in college in which the real problem was is that there was no speech. That was the cool generation socalled. In which University Administrations really came down hard. If anyone say anything, would seem to offend the administration. Thats not our problem today. We have, i have to say it, a problem with students. And supine administration. We have a problem in that too many people are unwilling to listen to ideas with which they disagree. And that is a problem which has only a longterm solution, but it is one i suggest to you that we should really start to address now. Thank you very much. Thank you, mr. Abrams, thank you to each of the witnesses for your important and powerful testimony. Let me start with zach and isaac, i want to thank you both for being here, i want to thank you for your courage in speaking out and risking persecution in doing so. Its important and its significant. And with both of you, you may both have the courage of your convictions and thats important. I wanted to ask both of you when when those who disagreed with either your views or the views of speakers who were coming to campus succeeded in shutting them down, did that embolden the censors . What did that do to the climate on the campus when people discovered the hecklers . Mr. Wood . At williams it was in some sense a victory for those who did not want to hear opposing views. So that you know, their perspective from the outset was that if we can shut this down, then were doing something that is just and right. Mr. Smith . My experience at Ohio University was primarily with censorship coming from the direction of the administration. And in my experience with students defending students, we had the administration on one occasion say that although the speech was protected by the First Amendment, that a student was accused of violating the code of conduct. Or that the code of conduct rose above that. They punished him anyway. I definitely agree that they were emboldened to try to take out any viewpoint that they found offensive. Profession fessor, i want to welcome to you this committee. You and i have been friends for 20 years. I will say two of my favorite memories were one, you and i and several others the day after september 11th. Spending time together in interfaith prayer session with christians and jus praying for our nation. Ill never forget that. Nor will i forget a wonderful time in which you had heidi and me over to your apartment for dinner and baked cookies and you probably dont recall this. But you pulled the cookies out of the oven and mumbled to yourself, oh my, their integrity is somewhat compromised. Heidi said who are these friends of yours . And i said no one but eugene volik would possibly utter such a sentiment. Thank you for being such a passionate champion of the First Amendment. One of the things youve written about is the impact of federal law and federal statutory law title 7, title 9, in pushing universities in the direction of censoring speech and im wondering if you could perhaps elaborate on that a little bit for this committee. Thanks very much for asking, those are two of my favorite memories as well. The cookies really, they were a little gooey. I think that made them taste better. So part of the problem that is happening on campus, is, is that the office for civil rights some years ago. I believe the department of Education Office for civil rights, and also support from the Justice Department took the view that federal law required colleges and universities to impose speech codes to prevent supposedly hostile or offensive environments, which were defined really in very vague ways but in ways that covered speech that was allegedly creates an environment by being offensive based on sex a particular focus, but the same logic of life. Based on race reerks lidgen and such. And colleges had been trying to implement those kinds of speech codes, many had for many years before. But cr was given cover to those who wanted to and putting pressure on those who might not. I think thats very much a mistake. I think that universities should try to prevent a, an atmosphere where people feel certainly feel threatened, threats of violence, certainly not constitutionally protected. But also feel otherwise intimidated or marginalized, based on various things, including politics. But universities have ample opportunity to do that by speaking out against the speech. Possibly there will be lots of Student Groups who are willing to participate in speaking out against this kind of very offensive speech and telling students yes, you are welcome here and a small minority might be saying. So rather than taking advantage of this opportunity for counter speech or urging the university to take advantage of counter speech, universities are uniquely well positioned to do because theyre in control and they often have people willing to help out in that among the student body. Instead the ocr argued that speech codes are not just the proper solution, but a necessary or required solution. I think its very much a mistake. Fortunately, federal courts have not taken that, taken the opposite view. My recollection is in the lerl i 2000s, the ocr had actually said that the First Amendment is an important limit on campus speech codes and then i think there was some walking away from that. Several years ago from further statements, especially the university by the ocr. Im hoping that the ocr will go back and reail firm the principle that while federal law prohibits universities from discriminating against students and requires them to protect students against violence and threats of violence, it offer those justification for a final question. Mr. Abrams, youve been a lion of the First Amendment. Youre a man of the left. And i think its fair to say i am not. You have spent decades defending free speech. Even views you disagree with. There are examples that are often pointed to, indeed at this hearing. One of the things were seeing on University Campuses is not just those extreme hate groups that are finding their speech censored but rather just speakers academics with views that are disagreed, that are contrary to the reigning political orthodoxy on many campuses. Whether it is an administrator sending and an email about halloween urging tolerance. Whether it is people arguing about samesex marriage. Whether it is an academic scholar like Charles Murray. Making arguments that are controversial. Whether it is an academic scholar like Heather Mcdonald speaking about Police Officers. What is the value of the First Amendment . In protecting the views of those with whom we disagree, what does it do to campuses when only one side of an issue is allowed to be expressed publicly . The First Amendment, senator cruz, as its core is an anticensorial amendment. It exists primarily for the purpose of keeping government away from certain very, very significant and sensitive areas, religion, speech, press, as assembly. And the basic philosophy behind it, is that it is important that the broadest range of views be heard and that the public be permitted to pass judgment. Pass their own judgment on it. I mean its tempting, i get it everyone understands. The temptation to say this view or that view is so offensive, so outrageous that im serving the Public Interest by shutting it up. The First Amendment sends us in the precisely the opposite direction it requires at least enough humility to accept the proposition that im not the Decision Maker and that congress isnt the Decision Maker. But that the public individually and together, make the decision about what to believe and what not to believe. Senator irving . I have to leave and vote only to ask a question or two. But i listen to the whole panel and it seems like theres an amazing consensus, in the abstract. The problem is the application. Should i be able to stop a speaker because im offended . No. Because im intimidated . I think yes. Should i be able to stop someone from speaking because hes unpopular . No. Because i find him menacing . Yes. Should i be able to stop someone who makes me feel uncomfortable . No. Should i be able to stop someone who i find threatening, menacing . Intimidating . Where do you draw the line . Put yourself in the position of the president of the university. You want to encourage exchange of ideas, lets start with the premise, but you also have a responsibility for the safety of the students. And what might happen from those who come and attend a meeting . What the reaction might be. Now add another element. Penn state allows the carrying of guns on College Campuses ten states. Does this make this a little moricale icallcomplicated for te president as to whether or not the speaker is going to be allowed to come in and speak. Let me ask you to address that, mr. Cohen . Thank you. I think its incredibly thorny issue. Universities have an obligation i would say to take reasonable steps that they can foresee in the event of violence. In other words, youre a university, you cant do nothing and then win you know, when maybe threatened people show up say im going to cancel the speech. You have an obligation to make some bona fide effort to protect the speaker, protect the students. There could be situations where at the 11th hour you got information that 50 bus loads of armed antifascists were coming to campus, you would have no choice but to cancel the speech. I think its a matter of common sense. We have to allow the university to exercise some judgment in a perilous situation such as that. Mr. Abrams . I think the real issue whats the rule and whats the exception . The rule has to be, we allow speech. We dont censor speech. We dont rule out speakers because of the possibility that there will be some sort of harmful impact because they speak. Sure. A lot of people are coming to the campus with guns or threatening or the like . Thats one situation. Very, very rare. But what were talking about today the premise. Ten states with concealed carry law, we announce were bringing guns, under the law theyre allowed to carry guns onto the campus. So they are, that has been the decision of the legislatures and so far, its perfectly constitutional. That does not empower College President to shut down campuses. There has to be more than a credible threat. Have we had a situation on campus in which as a result of a speech people who have come with guns have had committed felonies . I cant think of one. Thank god, no. Mr. Lawrence . Yeah. I think floyd has got it right. That the presumption is in favor of speech. The question is when can you overcome that presumption . You certainly have situations on campuses now and particularly in concealed carry jurisdictions, as you say where it becomes an enormous concern for the University Administration and there have been cases, most of the time this information is not made public where the University President , these are people ive spoken with have been informed by their own campus security. That we have credible information from local Law Enforcement that there could be people with weapons on campus. I appreciate the analogy to the hecklers veto. The hecklers veto cases come out of the 1960s and in jurisdictions that want to oppress civil rights marches, the answer is they have to make sure theres enough of a police presence. You cant tell a Public Safety officer in a university, you got to beef up. Sometimes you dont have those resources, those are the kinds of judgments that the president of a university is required to make on a daily basis. I would like to stay, but i have to go vote. I want to start out with mr. Wood. Asking you to elaborate on a point that you made to students at williams with minority political views feels silenced in the classroom. Yes, sir. So at Williams College, oftentimes its conservatives on campus who feel as though they cant express their views, and ive talked to a number of students individually who have told me they feel in certain classes if they were to express their political views, whether its on the issue of affirmative action or welfare or any number of Critical Issues that are often discussed, they feel as though they would be either strongly disliked or they would receive disapproval from their professors for simply stating their beliefs. So ive tried to encourage them to do it i understand its very difficult when you feel as though you affect the way your professor views you and sees you, as someone who is only trying to make the most of your education. And fos you, your testimony that Williams College adopted policies for inviting speakers that appeared to apply deeply to all speakers, but that in practice made it harder for conservative speakers to come to campus than liberals. I would like to have you elaborate that point. Yes. So essentially uncomfortable learning was a Student Group at Williams College originally. But unaffiliated for a specific reason. That reason was because College Council, the majority of the student body was liberal was not going to vote to approve uncomfortable learning if we were to go through the College Council we would have to receive funding from the College Council which would give them discretion to what speakers we could bring. What the president did after we invited john derbisher. He put several checkpoints in place, i have to discuss with several deens why i discussed a particular speaker if im willing to deal with the controversy. On top of that you have to convey to them what the sources of funding are and then you also have to register the Student Group this was a particular problem for uncomfortable learning precisely because of the student body not just the student body, but the deliberative body of the college, the College Council was liberal so we were worried that the group wouldnt pass and wouldnt get approved as a Student Group. Which means we wouldnt be allowed to bring speakers. It would force me to go through a number of hoops and hurdles to just be able to continue doing the work that i was already doing. Mr. Abrams and professor, dr. Ah testified that with respect to free speech American University quote draws the line when theres the potential to incite violence, end of quote. Of course american is private and the First Amendment does not apply. But is this statement consistent with the longstanding meaning of the First Amendment . Well i dont think so. I dont think the potential to inspire violence comes close. To meeting the Legal Standard which requires an intent, likelihood of success. And imminence of violence occurring. I mean there are speakers who by their nature are incent areary in what they say. And it would be an egregious violation of the First Amendment and First Amendment values to bar them from speaking. Because theres a possibility of violence occurring. Professor volik, you want to add . I agree with mr. Abrams, i had understood the dr. s reference. Something of a shorthand for the test. Quite correctly articulated. Which is that speech sun protected only if its intended to and likely to produce imminent there was once a time when the Supreme Court accepted the notion of mere potential to produce that conduct was enough. That was a socalled bad tendency used around the time of world war i and similar cases that upheld free speech. I think this ties in to senator durbins point. Actually in 40 states people can carry concealed guns legally. In in Public Places where there often are speeches and in 50 states. People can carry concealed guns illegally as well. Theres certainly somebody who is willing to commit murder isnt going to balk at restrictions in those kinds of laws, nonetheless the mere possibility that somebody would, would draw violent reaction or even hope to produce a violent reaction cant be enough for spree freeh speech and i understood the doctors shorthand for the more significant points. Senator feinstein . Thank you. Mr. Chairman, i wanted to ask mr. Cohen this question. Im holding a copy of a may 12017 paper from the southern pollty law center. The title of which is the battle for berkeley. In the name of freedom of speech, the radical right is circling the ivory tower to insure a voice for the altright. Could you please describe for us the thrust of this paper and any comments you would care to make . Thank you, senator feinstein. At berkeley and in particular, as protests have escalated, so has the presence of groups that really have violence on their minds. Weve had the kind of antifascist descend on berkeley and in response to them, weve had groups such as the oath keepers, Law Enforcement of current and former Law Enforcement officials who take a pledge to uphold the constitution in their view. Not as has been interpreted by the court through their super r superiors. Weve had other radical rights groups, a new group called the alt knights come to College Campuses, raring for a fight. My sympathy goes out to the University Officials at berkeley. Because they have been faced with an increasingly incendiary situation. One of the reasons why i think its quite important for Public Officials at all levels, people and churches, synagogues and mosques do what they can to tamp down the rhetoric and really speak out on behalf of the values of our democracy. One of the problems that i have is that there is an expectation that the university handles it. The handling of it means that you have resources to be able to send and those resources know what to do. In particularly for the Public University, and particularly for the university of california. There is a constant battle with the legislature over money. So the resources are not always what they might be. Does anyone on the panel have an idea if you accept what mr. Cohen has said, how should a university handle this . If i can speak briefly to this. I appreciate the resource constraints, were aware of the resource constraints at uc. While were fortunate to have uc police department, we also are in the city. And perhaps theres thats berkeley. Yes. And i would think that Berkeley Police department would also be a able and willing and should be able to lend Police Officers to help out if were in a position where our Police Departments are unable to protect free speech where the universities or otherwise. Yes indeed we are otherwise, ye, we are in a bad position. Let me just understand what youre saying. No matter who comes, no matter what disturbance, the university has to be prepared to handle it. Its the problem for the university. Thats the argument youre making. Youre making the argument that a speaker that might culminate a big problem should never be refused. They ought to be able to come, whatever the problem is, it ought to be handled. Senator, im always hesitant to say should never, there are always extraordinary circumstances whether someone has planted a bomb. To me the circumstances when people come in black uniforms and hit other people over the head. Thats an extraordinary circumstance. Right. That cannot be enough to just phi suppression of those who they came to try to suppress. Its not just the university, and its the government and its the job of the government and not a big believer in large jobs for the government and one important job of the government is the president and to suppress free speech. I do think that between the ucp you dont think we learned a lesson at kent state way back when . If i may, as the one person in this room who has actually had to make these kinds of decisions please. We are in the business of educating at a university, but we dont have the resources at the town and the city and at our disposal to have a budget to count on and say you may need take this now. These are always judgment calls and the way to start with these is a strong presumption in favor of a speech and with the student, and if an outside group is to come to campus thats an outside issue for a private university and to a Public University and always in a judgement call to get to yes on its speech and perhaps you even have to have it closed and have it available for closedcircuit and the there are a lot of ways in which the university can think about this, so the suggestion to university and its not just Public University and private universities that are resource constrained, as well, that we have the resources to throw at all of these problems is a vastly exaggerated notion of what universities can do, and its bringing more at the universitys doorstep. I think if you start with the presumption in favor to get to the program and only if that can be overcome if you have a program on campus. No matter how radical, offensive, biased, prejudiced fascist the program is, you should find a way to accommodate it . What i would say to that, senator fine stine is if were talking about the substance of the program and not the danger, incredible threat, but the substance of the program, then yes, then i do think that the program if a Student Group invites, then they should be able to, however, i would say a flat rule of mine, and he or she should get the question, to supporters, donors, how would i have so and so speak on campus and to ask them pointed questions, and thats how well get to the truth. But heres the problem. It very often isnt your kids that are the problem. Its outsiders who come with a specific program to disturb and hurt. Then youre quite right and the with a private university you do have the option of saying this is an event that is closed to University Students and members of the university are invited. Public university obviously has a much more significant problem there, and i would be differential to the chancellor of berkeley or the president of the university of california to make a tough judgment call particularly in the cases that you are describing. Which, well, i might say are more real than i think a hopeful audience might think, and i think thats a problem, and i think particularly in view of the divisions within this nation at this time which are extraordinary from my experience. I think we all have to protect the general welfare, too, and i appreciate free speech. You know, those of us that run for office, we run for office on the basis of being able to speak freely, but its another thing to agitate. Its another thing to foment, and its another thing to attack. I think in many of these speeches and its one of the things the president would take into account and if the speaker is coming to campus for the purpose of agitating cases of speakers who post images of students on screen in order to intimidate or humiliate those students that no place on a University Campus and thats not an intent to communicate. Thats an intent to intimidate. Thank you, mr. Chairman. The second vote has started and ill wait. I think ill go at the last minute, too. Thank you. Its not my turn to ask questions again, but im the only one here. Im going back to the professor and mr. Abrams again. Many Higher Education administrators say they have to balance free speech with stability, respect and diversity. Doesnt such balancing give the First Amendment which has set its own balance insufficient weight . Senator, when i articulated balancing that seems to suggest that we can balance away free speech, and while there are categorical exceptions and narrowly, historical exceptions the Supreme Court has objected the approach that the First Amendment is near balance. This having been said, im a deep believer in civility as an important means of promoting free speech. When people speak civilly, theyre more likely to be enlightened and to get all of the benefits of free speech. I think that the university ought to promote civility not by suppressing speeches as uncivil and its human nature for us to give the benefit of the doubt to people who we agree with and say well, theyre not really uncivil. Theyre just impassioned, and people that need to be suppressed should be suppressed for lack of civility. It should be promoting civility and not by suppressing speech. Do you have anything to add . No. I agree. Ill go become to you, professor. Our testimony describes the earlier efforts has led to todays censorship on campus that no one then would have anticipated. If this trend continues what kind of speech do you think would be next to be suppressed on campuses based on their content . I think that when people are concerned about a slippery slope, i think they are often quite justified. We live in a legal system thats built on precedent and analogy and its very easy for people to say we accepted the restriction of this kind of speech and that speech is very, very similar, and i think weve already seen this. Weve seen attempts to suppress serious scholarly debates and i mentioned in my written remarks an incident of Calstate Northridge where there was an awardwinning scholar of middle eastern history who had written a biography of kamal ataturk, the founder of modern turkey and armenian students were upset with the speaker because he was seen as too soft and ataturk was seen as responsible for attacks on armenians and there are accusations that the speaker himself didnt take the proper view of the killings of armenians during world war i and they shouted him down. They kept this awardwinning scholar from speaking on a subject that most of us wouldnt have thought to be one to suppress. Weve seen the suppressed speech thats proisrael and there have been some movements even unduly suppressed speech thats antiisrael and a broad range of topics that bear on religion, race and Sexual Orientation and if we allow restriction on speech for fear of violence, people will learn that by threatening violence they can effectively restrict it and thats not a tool that will be limited to one side of the political spectrum. Senator kennedy, it would be your turn if youre ready and could i ask a favor of you . Would you be able to stay here and finish the meeting . I am told that there are two other people who want to come back. Senator sasse and senator cloesh share, can you give some appointment . Can i bang on the gavel . Yes. Since im going to turn it over to senator kennedy. Thank you all for participating. Its like senator durbin, it seems to be a great deal of consensus and i would say consensus would be in the lines of our papers when we read about the violence and the things that happened on campuses and it is violent because people dont have an opportunity to speak and thank you very much and thank you for participating. Senator kennedy. Thank you, mr. Chairman. Senator fine stieinstein, ha asked questions . Im fine. I have to start the clock. Mr. Wood, tell me again, the speakers that youio disagreed with, but thought had a right to be heard . Susan baker was a social critic and an antifeminist and wrote a book called the flipside of feminism. She disagreed with feminism . Exactly. Did she use offensive language and she disagreed in feminism. She disagreeded with feminism and said things that are inflammatory. By inflammatory, women shouldnt belong in certain places and they should be kept at home and things like that. Okay. And who was the College President . Adam falk. Okay. Is president falk still there . Yes, he is. Okay. Well, ill share a couple of thoughts with you, and then ill ask the panel to react, including of course, mr. Wood. Ive always wondered about people that did not test their assumptions against the arguments of their critics, and that would seem to me that that would be the importance of that would be one of the qualifications of a College President and it was suggested by one of the panelists that the problem with students and i dont doubt that with some students, but students are, by their nature, are passionate, mostly liberal, center left. I certainly was when i was in college, and they dont have they go to college to gain the Life Experience and the learning that there are other points of view. So with some exceptions i dont really pla really blame the students. Theyre in college to learn otherwise. I blame the administration. I blame dr. Falk. If he, because of his policy or because he was concerned about offending faculty or offending students or offending alumni was worried about his security at the institution and i dont know if any of those things are true, but if what you describe is accurate then he should resign. Its just that simple. Because he needs to explain to students and have him understand that they dont have a constitutional right in life not to be offended and theyll be offended plenty of times in life and i understand hate speech is illegal as of yesterday, but speech is inflammatory and speech is a racial epithet. Speech is designeded to provoke. Im talking about somebody who wants to discuss a point of view that may not be popular. As far as im concerned dr. Falk ought to have it in the bag if he took a position like that where another point of view in a civil manner and be considered on the scales. Heres my question. As succinctly as i can because i do want to respect the time. Where do you draw the line . Where do you draw the line . I dont want a speaker to come to a university and use a racial epithet repeatedly for someone who would who would be offended by it, presumably everybody. I dont consider that to be adding to Public Discourse, but on the other hand, if somebody wants to come and discuss Charles Murray at middlebury, and discussed the bell curve and is hooted down and discuss the right to describe an intellectual point of view. I dont see anything wrong with that even though i may or may not agree with it. So who wants to draw a line here . Yes . I think personally, where the line needs to be drawn is when there is a threat made. If the language that is being used and the expression of a particular viewpoint crosses the line of being a threat thats when i think i also do think, though, personally, i try to consider intellectual value. If im inviting a speaker there has to be some intellectual value to bring a speaker to campus which is that i have to believe that this speaker is interested to contributing to Public Discourse and adding their opinion as a part of the conversation with a particular issue. From an intellectual point of view. Who else, sir . I would say there are two different questions here. Mr. Wood has put it exactly right for what a Student Group would do well. As a former University President , i would say my standard has to be ironically somewhat lower than that, which is that that would be the standard for someone that i as the administration might bring. Then the question is is this going to be threatening to campus in which case it would be restricted and otherwise, no, if they want to put on an event with one very powerful stipulation and any speaker that comes to campus has to be prepared to stay and take questions and give respectful, decent, civil answers. I dont want to go over. Im over my time, and i dont mean any disrespect to dr. Falk, but my guess is that dr. Falk, based on what ive read about him is center left. Substantially center left and the that he would Welcome Center left speakers and he would not Welcome Center right speakers and thats the most intellectually dishonest thing ive ever heard, if thats true, and i would feel the same way if he were center right or were excluding center left speakers. Hes not fit to be a College President , as far as im concerned. Senator klobuchar. Thank you very much. Thank you, all of you. I think ill start where we left off here with senator kennedy, mr. Warren and you were talking about balancing this and what the standard should be and like you, i really value the First Amendment. Thank you, mr. Abrams. Maybe i wouldnt be here. My dad has been a reporter his entire life and hes now 89 and blogs still from time to time. So do you want to talk about that value of free speech and how important it is and you were answering more in response and when its appropriate and you want to go through that one more time and then ill ask a few others that question. We start with the presumption that free speech is protected on campus because its essential to the knowledge and transmitting knowledge to the discussion to take place on campus. So the lines are drawn only at the extreme edges that which threatens and that would disable the learning process and not that which makes someone uncomfortable and part of the function of spending four years is to be intellectually uncomfortable from time to time and have your ideas challenged. I agree. I went to the university of chicago law school. Well, then nothing more need be said. Chicago, im told is the one place where we said you could flunk lunch. Thank you. I didnt do that, but thank you. Actually, thats the faculty, not the students who could flunk lunch. So with those exceptions, the speech will be protected and thats the essence of the institution. This idea, and its a threat, if someone has made a threat which is mr. Collins. Would you judge that by in the past or recently . How do you figure that out . As near that you can assess is try to figure out what is the intent of the actor at this time . If you have someone who is communicating views that are even unpleasant views and even i would say hateful views, if the intent is to communicate those views then that is intended and the threat is to menace and its not. Not always an easy line to draw, of course, but those are the lines were drawing all of the time in the criminal law and thats the line that administrators are trying to draw all of the time. Lets talk about how you draw that line if you were in mr. Lawrences job and had to make that decision. I am glad were not in mr. Lawrences job or dr. Ozs job and the Supreme Court has written or ruled about what constitutes a true threat and its not merely how other people might perceive it, and it is as professor lawrence has said is the intent of the speaker and weve never advocated for speech on any context and cases like brandenburg and incitement of imminent, lawless activity and its very, very rare when one has seen Something Like that. So, in general, i would agree with dr. Lawrence, mr. Lawrence that we should have a presumption in favor of speech and as the Supreme Court has said its a bedrock principal for our country to engage in a robust, uninhibited debate of good ideas and bad ideas. Mr. Abrams . We all agree and it is a law that private universities and colleges are not bound by the First Amendment. It would be constitutional for them to say, we only invite people who we think are of Educational Value and therefore, we choose not to invite this person or that person who we consider not to have that ability to educate and i dont want to say the problem with that. The reality is so long as the private universities say as we do, we choose to apply First Amendment standards and so long as they allow students, as i think they should to invite guests to offer their views on whatever that the university ought to stay out of making quality or educational quality decisions. I think it would be inappropriate for a university to say you want to have anne coulter to come and speak here . We dont think she has anything to contribute. The republican students in certain california universities wanted her to come and speak and it seems to me that once you open that door cl i think is well worth opening then the university ought to stay out except in the most extraordinary literally, violent on the lip of violent situation. Okay. Can i ask one more question . Okay. Thank you. Ask as many as you want. Oh, well, wow thats pretty good. Filibuster. Oh, youre right. Thats okay. This is freedom of the speech. I just want to ask one last thing since youre here, mr. Abrams. We understand that you had New York Times where the Supreme Court ruled that the federal government cannot mark the New York Times, and based on your experience, can you speak to the importance of ensuring that the First Amendment and our laws continue to protect journalists at this time in history . Briefly, if you could. All kidding aside. No. I think thats a good idea. Its critical and no less critical now than at any other time. I mean, we it is essential that we continue to protect news journalists and news gathering and news reporting and expression of opinions and the like. Criticism of them should also be wide open, but it is no time theres never a time, but certainly not now to limit those rights. Thank you. We had an incident in the capitol where there was closing down of tv reporters and we quickly fixed that, and i thought it was a good question. Senator sasse. Thank you, ms. Klobuchar. We are two minutes to adjourning and ive been presiding, and ive missed this hearing and i want to thank you all, all seven of you for being here. We have data that show 40 of americans under age 35 think that the First Amendment is potentially dangerous if people can use their First Amendment freedoms to say things that others find offensive. Im a former College President , i would love to understand the current state of play in the University Administrations where theyre doing this very bizarre thing of trying to define the term offensive as if thats possibly adjudicable. Ill close with one question for the professor and mr. Abrams, as well. Given the precedent that established free free speech on College Campuses, i would be interested to hear from each of you, in the face of so many of these, in my view, bizarre speech zones and there are so many spaces that there are not free speech zones on campus, what would you see that the state and local governments might conceivably have, and i know its a problem attic debate and its not the same thing on public University Campuses that you need to ensure First Amendment protections, but if we can get topline comments from the two of you. Thats absolutely right. The state of nebraska, for example, and it has a responsibility to run properly and much of the time one wants to leave that to the professionals hireded to run it, but it looks like they are not doing a good job of protecting freedom of speech, i think the state has a double obligation to make sure that universities are complying with the u. S. Constitution as well as what i think are the best educational institutes. In california, for example, there is a special statute that provides extra protection for Public University students, and i think thats been very helpful. I agree with that. I just would add a note of caution, that i am apprehensive about state legislatures getting too close to the University Campuses in terms of dictating or requiring certain types of teaching to be allowed, not allowed, subject to be taught or not taught and the like. Me, too. Yeah. I just agree with you. Im a small government guy who wants to see as little of this as adjudicated, and thats why its more incumbent upon admp strarts to offer defense of the First Amendment and not just in legal particularity, and also in terms of the spirit of a liberal Arts Education where one of the things that happens as you grow as an adult is you encounter ideas that you didnt already believe and agree with. One of two things happens then. Sometimes youre persuaded and get converted and thats called education. I think thats a bell telling me were done. Sometimes you find your idea were good and were strong and were made stronger by having to encounter people who didnt agree with you and you have to respect their viewpoints and have a real debate. It is both the essence and part and parcel of First Amendment culture and the beating heart of american discourse and its also fundamentally whats supposed to be happening on College Campuses. Im sad were out of time, and thanks to all of you for being here. Gavel, sir . Or do we makeshift . We are adjourned. Thank you