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tv   [untitled]    May 11, 2016 7:00pm-8:03pm EDT

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it grasped that people of good faith would make mistakes in trying to work through those tensions. and doe was in many respects the perfect starting point for a civil, informed, respectful, productive dialogue all toward the end of a dramatically improved campus environments. well, so much for that. so where are we now? doe arose from concerns about a racially hostile campus environment. some data strongly suggests that the situation nationally has gotten considerably worse. the number of racial harassment incidents reported to the department of education rose dramatically from 2009 to 2014 and studies estimate only about 13% of such incidents are even reported to campus authorities. i suspect that number's very high. furthermore, studies suggest that the problem has grown worse as affirmative action has become less available in some jurisdictions as a tool and as
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campus diversity has suffered as a result. in any event, there is certainly an increased awareness of such incidents. social media have facilitated constant and widespread communication about these experiences. consider, for example, the relatively well-known #bbum movement at the university of michigan where black students used twitter to describe the challenges they face on campus, some conspicuous, some much subtler. this increased consciousness also has to do with the shifting understanding of how harassment, discrimination, and marginalization happen. for example, we have a better sense now than we did in 1989 of how even inadvertent microaggressions can disrupt a student's learning experience. in 1987, when doe was tried, we knew that the ku klux klan uniform that was hung from a dormitory window at michigan was a racist act. just as in 2015, we knew that
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the noose strung around the statue of james meredith at mississippi was a racist act. but today, we also have a much more refined view of the scope of the problem and it turns out to be even deeper and more daunting than we understood 25 years ago. nor are those dynamics exclusive to racial issues. the most recent data regarding the number of sexual assaults on our nation's campuses are shocking. in 1989, the concept of a campus date rape was still relatively new. 25 years later, we have a much better understanding of the extent of the victimization and around the issue of trigger warnings, we have engaged in a debate about how to deal pet gojically with a statistical reality, the statistical reality that almost certainly more than one of our students will still be suffering under the trauma of such an experience. our universities have serious work to do. we have serious conversations to get it done. but serious conversations on these topics are hard to come by. the groups and individuals who
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raise these issues are belittled as wimps, weaklings and whiners. calls for awareness, sensitivity and action are met with accusations of political correctness. a phrase that had not yet emerged in full use in 1989 and i personally would happily send into eternal perdition being as it is a lazy-minded label people substitute for an argument. we have come a long way from the balance and civility of doe and it is to nowhere good. furthermore, all too often no conversation about these topics can be conducted because discourse is shut down ironically in the name of free speech. a concern is raised about how to deal with speech that offends someone perhaps to the point of interfering with her ability to learn. but we're told we can't even air the concern and try to figure out how to address it because freedom of speech stands in the way. the 1st amendment, the grand midwife of ideas, is now routinely used to aboard them.
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as you may have gathered, irony is one of my central themes. of course, those on the other side of the issue have not served the conversation well, either. social media have mayed a role here, too, because they allow for the airing of grievances that have serious, thoughtful and legitimate but also of those that are petty and self-absorbed and con krootrivecontrived. those who tweet before they think may make themselves into easy objects of parody, they've become inadvertent co-conspirators in the trivialization of their concerns. we see on this side the paradoxical impulse to silence people in the service of the 1st amendment. when you think someone has a right to photograph your protest, when you think someone has no right to photograph your protest because of freedom of speech, you're confused. when you think freedom of speech gives you the right to call for muscle to intervene, you're dangerously confused. also those who seek -- "for
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every action, there's an unequal and opposite overreaction. "human beings think big problems call for bigger solution so of course the policy at issue in doe turned out to be too broad and too vague as do many such policies. but that other way, that more narrow, more cautious way is precisely how 1st amendment jurisprudence wants us to think about it. maybe you can see why i'm skeptical things will get better any time soon. both sides of the debate have settled into certain framings, language and concepts. they appear comfortable there and a highly efficient mechanism does exist for making troublingly comfortable people uncomfortable. it's called freedom of speech. but as i say, whichever side you're on, the other side doesn't get to use it.
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thank you. [ applause ] >> good afternoon. i am delighted to be here and i appreciate the generous invitation to join you. like len, i would like to thank you for the opportunity to be present. also like len, and we had this conversation, knowing that you have to follow justice stevens is quite something to think about. so, happy to be here. in my time today, i thought what i would do is provide a brief revisitation of some of the key u.s. supreme court cases that are the drivers of the analytics for how we observe issues related to student free speech questions. touch on those, develop some
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core terms then i want to talk about a specific case that i think is interesting and it illustrates the power of litigation when students decide to move forward if they feel they have been so aggrieved. so why don't we begin with the magna carta? i won't cover it in much detail but we talked about tinker with justice stevens. the black arm band was symbolic speech and the outcome in tinker is the material disruption standard that we all know so well. someone earlier in one of the questions mentioned prong two of thi tinker which we don't hear -- oh, there we are -- colliding with the rights of others. that's a very interesting question i think to be explored perhaps at another time. we know that that is the standard that is developed in twichinger, 1 f 1969. fast forward to healy versus
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james. a public institution where a student group sought to establish a chapter of the students for democratic society. which was a somewhat controversial institution which was suggested to insight violence on college campuses so the administration grew concerned about the application and denied it on that basis. the supreme court concluded, however, that just because an idea is unpalatable does not mean it can be retreated and that does not enter into the 1st aem amendment. that is our second speech ruling. i want to reed you a little bit of the language from justice powell. "the precedences of this court leave now room for the view because of the acknowledged need for order, 1st amendment protection should apply with less force on college campuses that the community at large. quite to the contrary, constitutional freedoms is nowhere near vital than in the community of american schools.
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the college classroom with its surrounding environments is particularly the marketplace of ideas and we break no new constitutional ground in reaffirming this nation's dedication to safeguarding academic freedom." so that is from healy. we move forward to 1981, woodmar versus vincent, a case involving another group of students and a religious question. a group of students in a religious organization requesting the use of facilities at a public college campus. out of fear of running afoul of the establishment clause, that request was denied. here the supreme court concludes that that was an improper denial because these students were discriminated against based upon the consent of their message. the forum had been created. and this is an important term, you know. the forum is there. student organizations exist. if some are aveiled facilities, then all should be equally and not discriminated against on the basis of their content. then we fast forward to 1995.
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rosenberger versus the -- we discussed rosenberger i think briefly. another case involving a religious request, a religious student group asking for money to produce a publication called "wide awake publications" that was religious, obviously, in nature. again, for fear of running afoul of the establishment clause, the funding was denied. here the supreme court takes the further position this group was discriminated against narrowly on the basis of their viewpoint. so the difference between content and viewpoint is always a question and they are quite certainly related. in my little thnefarious bag of tricks when i'm working with students, i've learned to use the context of football because it works very well. i can say, in this room, in this for
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forum, we can talk about football. i'm sorry. we can talk about anything there is to be discussed but we cannot talk about football. i am then limiting a content discussion, right? however, if i say, in this forum we can discuss football until the ends of the earth, but we cannot discuss the university of miami football, that is a viewpoint restriction. nuance is there. once revolt ends, usually i hear some ahhs. as we move forward, i might mention one more case from 2000, further narrowing viewpoint, students who objected to pay a mandatory student fee. so these are the cases that developed the terms. if you think through them. so we got content, we've got viewpoint, we've got forum. these are the elements of the analysis in litigation when these cases reached the courts when students make the decision to litigate. now, very briefly -- how am i on
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time? good. okay. excellent. i got a thumb's up. that's a good thing. so rock for life versus umbc. this is a 2012 case from the 4th circuit. i bring it up just because i think it is interesting in this particular circumstance. a group of students who were antiabortion student group sought to display what was called a gap display which was in essence graphic photographs of the abortion process. in a way to bring light to the controversy. on this particular campus, public institution. originally, they sought to place this in the middle of campus in an academic area. there were concerns about the size of the billboards, the signs, themselves. whereas, manufactured in two ways a larger size and what they called a mini which was smaller. still, they were about four feet
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by four feet i think. in any case, from a facility's perspective, they were moved to a commons area that included a student center and the number of residents halls which received pretty high foot traffic. so that movement was not bad. but then there was concern there about blockage, foot traffic and other issues, so they were moved to a third location. they displayed and departed and later requested to have another display that they wanted to go back to the commons area with dormitory and a student center. this then was denied again and they did not pursue this. now, one important thing to note is they also requested security but that didn't ever really emerge or go anywhere. so the 4th circuit in hearing
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this case made -- let me just restart that whole thing. the students filed suit initially and one of their claims was that a 1st amendment speech code violation because there was concern administratively that the display, the gap display, might emotionally harass a student. and the institution had a speech code in place that dealt with emotional harassment. prohibiting speech that would emotionally harass. and you could tell that sounds a little bit wrong. so when the student group filed suit, in order to address their claims, the university changed that policy and rewrote it so that emotional harassment was not there and the broad language. that's one element of this i think is interesting that, you know, policy can be identified and anyothen is acted upon when institution realizes perhaps this language is a bit on the
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broad side. then you see a group of students moving forward setting and shaping policy using their voices to do so. and further, ultimately the administrators involved in this case were granted qualified immunity, but the 4th circuit did conclude that those students were discriminated fwens ed ag the basis of the content of their speech. so i think this illustrates the many different ways that students can speak on the college campus. and if you think about it, they are myriad. classroom, curriculum, athletics, the theater, newspapers, the list goes on and on. down through student organizations and presentations. so this is an incredibly important topic and one for which higher education must be mindful because it's not going away. the proliferation of litigation concerning free speech rights
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related to students and others on the college campus continues to grow. so because there are so many gray areas, i'm going to say the words qul s "social media." i'm going to mention those because that's our brand new gray area. we're not sure where we're going with any of that. susan is going to discuss some social media issues because they're fascinating and important and it's something that those of us who are part of the college and university community should be watching very closely. so with that, i will bid you adieu and i will return to my seat and enjoy the rest of our session together. thank you. [ applause ] >> thank you, professor, for
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your introduction and thank you to miami law review for having me here today. the foundation for individual rights and education, or f.i.r.e. where i work was foundfound ed over 16 years ago and since then seen significant victories for free speech on campus but also seen some almost unbelievable new threats to free speech. now the 1st amendment an an incredibly broad range of speech, vast majority of speech you'll hear on college campuses is clearly protected by the 1st amendment. constant vigilance and defense and proactive measures. so i think that with respect to free speech on campus, there's probably always going to be kind of a good news/bad news situation. so i'm going to talk about some of the good news and some of the bad news. for most of f.i.r.e.'s kpis ten tense, we systemically analyzed
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speech codes on hundreds of college campuses across the country. and speech codes are any written policies that prohibit speech that would be protected from government punishment if it occurred off campus. so public schools are bound by the 1st amendment and private school -- private colleges we just expect them to follow through on any promises they make to students that they will have freedom of speech. and keeping track of speech codes is one way to quantify the danger of freedom of expression on these college campuses and identify trends over time. in recent years, we've seen many administrators revise speech codes so that free speech is better protected on these campuses. we've seen especially the number of extremely restrictive policies go down and the number of campuses with no restrictive policies go up. and a lot of this progress that we've seen comes from just talking to administrators.
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and at f.i.r.e., we really like making progress this way because it can be faster and it's free and it lets us ensure that the administrators really understand why the changes that they're making are so important. unfortunately, though, not all administrators want to work with free speech advocates and a lot of -- a lot of them will even refuse to back down after we publicly call them out on on free speech violations. so two years ago, f.i.r.e. launched the standup for speech litigation project and so far through this project, we've helped coordinate 11 lawsuits against schools that committed 1st amendment violations. and some of the facts of these cases are just bewildering. we have several cases that revolved around students being told that they couldn't simply hand out literature quietly and
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peacefully in the open areas of campus, on public college campuses and these are things like advocating for animal rights or petitioning against nsa spying or even handing out copies of the constitution. and they were told that they couldn't do these things because they weren't in the so-called free speech zones or they hadn't gotten permission from administrators in advance. so this is one example, this is the modesto junior college campuses and the little red circle is a where a student was standing and the little orange circle l is the tiny area on campus that he was allowed to hand out literature in. so that's just one example. and this is a common scenario of how bad it gets on college campuses. now students and professors shouldn't have to sue in order to enjoy their first amendment rights but the good news at least in this situation is out of the eight cases through this project that have been resolved so far, they've all been
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resolved in favor of free speech. and most of them were actually settled before they even got to court, so it seems like some administrators at least are slowly learning that it's a lot less costly and it takes a lot less time to simply abide by the 1st amendment instead of digging in their heels and digging it out in court. but even though administrators at some schools are slowly timely getting a handle on 1st amendment law, there are still some very serious dangers to free expression and i'm going to talk about two of them today. they both have to do with the office for civil rights. ocr is part of the department of education and it's the agency that's responsible for enforcing title 9 which prohibits sex discrimination in schools that receive federal funding. for colleges, most schools at
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least receive federal grants of some sort. now, i also want to say as a note that if a school does violate title 9, they can have their funding taken away. even though this actually hasn't happened yet, the threat of it happening is enough for -- to keep schools sort of under orc's thumb and this is the first threat that i'm going to talk about. it's what my colleagues and i call the blueprint. and in 2013, the university of montana entered into a resolution agreement with the departments of education and justice. and this concluded those departments' investigation into the university for allegedly mishandling allegations of sexual assault. and even though the investigation focused on assault, the findings letter that came along with that agreement also dictated how university of montana was supposed to define sexual harassment and the letter also said, as you can see, that it
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should serve as a blueprint for colleges and yust s and unii. according to the letter, sexual harassment, unwelcome conduct of sexual nature or verbal conduct or speech. any unwelcome conduct or speech of a sexual nature. now, when you look at this definition, i want you to think about whether you've ever told an offhand, racy joke or talked about "50 shades of grey" at lunch or maybe just discussed the facts of the supreme court case, lawrence versus texas which dealt with sodomy laws. if someone on campus, anyone, overhears you and maybe is offended or doesn't want to hear you talk about those things, that makes your speech sexual harassment. we know how different everyone's opinions are, so it's not really so unlikely that someone is
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going to be offended by what you're saying. i know it sounds extreme to call you a sexual harasser in that context, but look at this definition. any unwelcome conduct of a sexual nature. there's just no limiting factors there at all. so that's why it poses such a serious threat to free speech and that's why it's unconstitutional. we can compare that definition to the definition of student-on-student harassment that we get from the supreme court in the 1999 case davis versus monroe county board of education. in that case, the supreme court defined sexual harassment as conduct that is so severe, per vasesive and objectively offensive that it effectively bars the victims' access to an educational opportunity or benefit. if we think about the examples from before that i just said, none of them come close to being so objectively bad that they're going to keep a student from receiving his or her education.
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and so they're all constitutionally protected, but i think that illustrates just the huge difference between the supreme court's definition of sexual harassment and this definition that orc is trying to promulgate. so some of you at this point might be thinking, well, surely a school wouldn't actually enforce a definition that broad, but they are. f.i.r.e. sees it happening across the country since the blueprint was published in 2013, schools have been adopted this incredibly broad definition of sexual harassment word for word. and they're enforcing it against students and professors to punish speech that's unequivocally protected by the 1st amendment. and a lot of times it's speech that even plays a valuable part in important conversations. so, for example, at louisiana state university, a tenured education professor got fired essentially for occasional
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profanity in class. and right now as part of the stand up for speech litigation project, she's suing lsu to defend her 1st amendment rights. but what happened was that she's teaching future teachers and she wants to prepare her students to be able to deal with all sorts of different kinds of parents they might encounter in their jobs and that includes parents who might say potentially objectionable things. so she used the word, "pussy" a couple times and the school fired her. they said using this language creates a hostile environment that amounts to sexual harassment and unsurprisingly, lsu's definition of sexual harassment tracks the blueprint. this is the kind of thing that happens when you have incredibly broad speech codes like this. unfortunately, this isn't the only way that ocr is impeding free speech on campus. a lot of you have probably heard that students across the country
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are asking for their colleges to ban anonymous social media like the smartphone app, yikyak. at the university of mary washington, some students complained that the school hadn't adequately responded to racist and sexist messages on yikyak and this prompted an investigation by the office for civil rights. so the question kept coming up, could umw ban yik yak? and a lot of schools have already tried to ban yik yak. and ocr, by investigating in this case, is basically giving schools another reason to try to ban full forms like anonymous social media. i want to point out two important things to remember here. the first is that some people were concerned about threats being posted on yik yak. and threats and harassment
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properly defined are already prohibited by law. and we've seen cases where a threat was posted on yik yak and the yik yak representatives even worked with the fbi and worked with the school to find the poster and to have them arrested. so there's already procedures in place for that. the other important thing to remember is that hurtful speech, even speech that could be called hate speech, is almost always protected by the 1st amendment if it doesn't actually rise to the level of a true threat or harassme harassment. the law is very clear about this and the supreme court has reiterated time and again that even offensive, provocative speech is often a critically important part of public discourse. so with those two things in mind, it should be clear that there's -- that banning yik yak at a public school like umw really doesn't serve any lawful purpose that isn't already served by the laws in place. thankfully, the umw president seemed to understand this and he -- he denied the university's
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wrongdoing but he also said -- let me read it from here. he said, "as a public university, umw is obligated to comply with all federal laws, not just title 9. the 1st amendment prohibits prior restraints on speech and banning yik yak is tantamount to a content-based prohibition on speech." he's right. after he said that, students added that to their complaint to ocr, said the comments from the university president constituted retaliation. now o kprrcr is not just investigating the school but also investigating the president. i think something is seriously wrong when you basically land in trouble for stating what a public university's obligations are under the 1st amendment. i'm going to wrap up by saying that during the rest of the panel here and -- or the panels this weekend, and probably during the q&a session, you'll hear people say that calls for
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censorship are calling from all angles. they're coming from students and professors, administrators and even state legislatures. that's all true. f.i.r.e. sees it happen all the time. here we have a brand of the federal government coercing schools into punishing protected expression all across croscross country in one foul swoop. it's a significant danger to free speech. to end on a slightly less depressing note, i'll say this, f.i.r.e. has seen amazing results that can be achieved when students and professors like all after you guys decide to fight back so i sincere sli hope you'll consider doing so and help us fight back against these serious threats to free expression on campus. thank you. [ applause ] >> so i'm going to throw out a couple of questions for the
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panelists and you can answer either of them or as often the case neither of them. and i want to focus my question more specifically, i think, on sort of hate speech codes. and in this sort of clash between liberty and equality, i think i heard suggestion at one side is that the risk of free -- of these sort of speech codes is that they're going to kill speech and we're going to risk losing valuable viewpoints in the marketplace of ideas. and on the other hand, there's an argument that the lack of these kind of speak codes sort of might deny targets of hateful speech an equal opportunity to learn and participate in campus discourse. and these are both sort of postulated harms and i wonder if anyone has any actual empirical evidence supporting the claims of these potential risks. so that's my first question.
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and then the second question is a little more doctrinal, sorry, and that is in free speech doctrine, sometimes audience writes not to hear, actually trumps speakers' right to speak even when what they're saying is otherwise protected speech. first, i have the captive audience doctrine which is the idea that in certain locations such as the home, you kind of have the right not to be bothered by offensive speech. so that's the first. it's the captive audience doctrine. and the second is that in the workplace, right, the harassing speech, and it can be juf speech, harassing speech that creates a hostile work environment can be made legal even though the speech would be
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perfectly legal outside the workplace concept, because there wouldn't be an equal opportunity in the workplace. thinking about these doctrines within free speech jurisprudence, think about how they might apply on campus because if you think about students on campus, right, their dorms are sort of their home and parts of the campus is sort of their workplace. so i was just wonders how you think these particular doctrines might play out in this discussion of speech codes. >> okay. i would like to first address the difference between the workplace and the university because it's true that there are different standards for sexual harassment in the workplace as opposed to the university, but
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there's very important reasons why that's so. in the workplace, depending on what company it is, they have a specific goal and anything, you know, if it's a paper company, it's making paper, for example. and that goal is usually singular and anything that gets in the way of that, it makes sense to prohibit it. at university, the goal is discussion. the goal is debate. and hearing new ideas and thinking about new ideas and so it really makes sense to err more on the side of more speech in that situation where speech, itself, is part of what people go there to do. people don't usually go to work to talk or to hear new ideas. they go to produce something, some sort of specific output. so to me, i think it makes practical sense that the standard for sexual harassment would be more speech restrictive in the employment context. let's see. as far as in the home, i think
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that in our homes, we can keep people out. it's more of a private space, but f.i.r.e., at least, deals mostly with either situations where someone is -- finds their speech -- their own speech limited in their own home, or their dorm room, or situations where students are censored in outdoor areas of campus. so i think that maybe the other panelists can speak more to that. >> well, i was going to revisit question number one which was is there any empirical data regarding the differences here? and i'm unaware of that which i think is unfortunate. that's a nice, good point to make that we should pursue. i think more empirical study in that regard. so that's my position there. i'm not -- are you aware of any empirical -- >> to be honest, i think that a lot of the cases that we deal
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with, it's so clear that either someone's access to their education is either so very clearly denied or so very clearly not denied that i can't really think of cases on that front. >> oh, well, so a couple thoughts. the first is, as i think we all know, hate speech is actually not a category of prohibited speech recognized by the supreme court of the united states, so whenever we talk about hate speech, we actually, i would suggest, don't really know what we're talking about. so we would have to define what we meant by hate speech. so there are some things like, for example, harassment could be a form of hate speech. threats could be a form of hate speech. those are recognized categories of unprotected speech, at least in some cases by the supreme court of the united states. and i think it's interesting, the question about empirical evidence is an intrigues oning .
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i don't think when we think about threats we'd say, gosh, we need to see empirical evidence that threats made your life worse. essential before we realize someone's ability to do their job effectively when they're constantly surrounded by racist or sexist speech. we really need to see empirical evidence that supports that. i'm suspicious of empirical evidence claims in that context because i think they kind of come and go with convenience. i do think one of the things that intrigues me, i'm not at all convinced many of the solutions here lie in the legal world. i think they lie in the normative and moral world where we have agreements about how we're going to conduct ourselves and what's critical is that we're able to continue to have those kinds of conversations without people becoming unduly alarmed and thinking they're going to turn into prohibitions. one last quick thing on your captive audience point, which i think is also really interesting, just because i can't think that was spoken to. i've seen some interesting permutations on that.
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in the state of michigan we had a case involving a professor who gratuitously used profanity and would go off into stories about his own sexual exploits and things like that in a class to which it was completely unrelated. and the students had to sit there and listen to this stuff. there was no pedagogical justification for it. it was what he felt like doing. the school took action with respect to that and i think there you had a captive audience. we had the flip of that in a case in the state of michigan where a student turned in an assignment in which he fantasized about the instructor and the student knew that the instructor would have to read the paper and so you arguably have the captive audience going in the other direction in a context like that. so this is very context-driven. i think education gives us a really rich and complicated context for thinking about these issues. >> all right. we're going to open it up to questions now.
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>> hi. thank you to all of the panelists for being here. we really appreciate hearing from you. thank you, professor corbin, for moderating. my question is sort of related to those who try to suppress free speech and sort of the progress we're making in that area. professor, you had mentioned sort of the second area. the way i see it is there's sort of two forces that are going against free speech on college campuses. one, you have the administrations who are worried about their brands and don't want people to be either saying things bad about their universities or just projecting viewpoints that, perhaps, bring them to national spotlight and whatnot. that may inhibit free speech in itself, what type of codes they enact. there's also the other students who disagree with whatever viewpoint is being expressed. this is i was talking about, professor, you alluded to, a student journalist was not allowed to film the protests going on there. so my question is how do we continue to go forward and sort of fight the institution that
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tries to prohibit free speech when our fellow students are also sort of being part of that? is that a trend that's just been more recent and do you think it will continue and what do we do about it? >> i think from at least my perspective on that, the ideal framework for administrative decisions and policy development is that we're seeking to strike that balance to protect student free speech yet provide the efficiency of operation that is required to make the institution run. and that's the ideal framework, but that's also the folkram. when policies are written in an overbroad fashion or they're vague, it's not always that it comes from a perspective that is malicious. policy may be crafted that's intended to do a good thing but written in such a way that it's overbroad or vague making it unconstitutional, so that's a third factor i think falls into
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this question of all the angles that are moving in free-speech zone, if you will, that we don't know about anymore, but i'm sure we'll talk about. that's one perspective i would add in there is the idea that's -- finding the balance is key, but it's not always easy. in fact, these cases will demonstrate that it is not always easy. >> i think that another strategy especially when we're seeing calls for censorship from administrators and students is to just try to remind everyone of the reason why we have such broad free speech rights and try to explain to people that, look, if you're trying to censor other people right now, you need to think about the fact whatever rules you lay down are going to be used against you eventually. that's just a fact of life. and you can see just by looking at, for example, looking at f.i.r.e.'s case archives that censorship literally goes in every direction. no matter what your viewpoint is, i swear i can find some case
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where someone with that viewpoint on literally any topic that's being discussed on college campuses, someone has been censored and so i think reminding people to sort of flip the situation and think about how they would deal with that also could be helpful, both in dealing with administrators and in dealing with students. >> so i'm really troubled by the question because i think you're trying to tempt me to say something positive. so i'll succumb to it. so this is what i think. i think educators are really good at teaching. i think students are really good at learning. i think both educators and students are really bad at serving as regulatory agencies. and so i think that where i see the space for hope is in the educational process. there's nothing -- there is something inconsistent about trying to regulate speech in the interest of another interest. but there's nothing inconsistent about educating people both about the value of free
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expression and about all the ways in which we discriminate against, harass, offend other people and unsettle their learning. and to me, what is essential is that we're able to talk about those things and have productive conversations about them and the isolation and the balkanization that i described earlier and the easy labels and the easy ways of dismissing dialogue i think are deeply pernicious and destructive. >> question for susan. i'm not a big fan of the orc documents about sexual harassments, but it's actually the same reason i'm troubled by your presentation which is i think they both are being -- are imprecisely expressing what sexual harassment law is because you seem to be conflating or aligning the fact that there's -- first of all, multi elements for what constitutes sexual harassment but most
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importantly the severe and pervasive requirement in the davis case. i don't think it's true. as a matter of law. that if a person, for example, says something unwanted and sexual in nature that it is sexual harassment. because sexual harassment is a legal term. in order for it to be sexual harassment that is both actionable and meets the concept, it has to be severe and pervasive. in universities, that means, to change it to race, if one student shows up in black face and yells racial slurs, that's not racial harassment as far as title 9 is concerned. it's only when it happens at a severe and pervasive level, happens over and over and the university ignores it and i think that difference is really important in the education environment because it's the same difference recognized in the employment context as well and many of us who are, you know, worried that our students are being mistreated, that racial and sexual harassment are not being handled particularly well are also enormous fans of free speech in the educational environment. i teach a class on sex crimes. the first day i talk about
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driving while black. i use profanity that's built into the sex crimes cases as well as just having students talk honestly. and yet for us, we don't see any, you know -- that, because of the simplistic view that, you know, i think some of this is the presentation, but f.i.r.e. more generally has offered that this is sexual harassle, ignores that really the focus of law, the severe and pervasive requirement. it's when patterns emerge, cumulativeness emerges. i want to hear your response because i do think among a lot of us educators, getting to the other point here, that there's never been this portrayed conflict between free speech and sexual harassment because sexual harassment law, racial harassment law is often hard for plaintiffs to win. they can't show the institution deliberately turned a mind eye over to it. maybe the orc can present it better. i just feel like the
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simplification is being repeated on both sides of this debate, what's sexual harassment and what's racial harassment. >> yeah, that's a good question. a huge part of the problem is really that ocr has, over time, announced different definitions of sexual harassment in the educational context. and so there are ocr documents that have a definition of sexual harassment that's not exactly the davis standard but much closer to the davis standard and there are much fewer 1st amendment problems with that definition. for example, in different guidance documents, they do use the severe and pervasive language. however, the problem occurs when schools are confused about what standard they're supposed to use. and they're going to be overly cautious because they really don't want to be investigated by orc and they really don't want to have their funding taken away, so even if they get a hint that ocr is going to start
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investigating them if they don't have a broader definition, they're going to adopt that definition. like i said, we've seen colleges across the country use and enforce the very broad definition of sexual harassment that i had up there in my powerpoint presentation. they're not all reading davis thinking, oh, well, sure, ocr just told montana to have this definition but the supreme court said in 1999, they don't all think about things that way. they see this letter to montana and they think they're going to get in trouble if they don't adopt exactly those words. so they do that. and regardless of whether those policies are actually the policies that schools need to adopt legally in order to comply with title 9, if a school has those policies in place and they're enforcing them, then that means that students are getting punished for constitutionally protected expression. so the moral is really until ocr is 100% clear on what the law is and what schools have to do,
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schools are going to be doing things that are unconstitutional. >> do you see a link between the increase in schools' efforts to limit speech, to the opposite trend out in the general population in terms of hurtful speech being far more common and vociferous nowadays? >> so let me quibble with the premise of the question.
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i don't think that -- maybe there are some institutions where people sit in the back room and rub their hands together and cackle evilly and say how do we restrict speech today? but i don't think that that's actually the enterprise. i think the enterprise is there are problems floating around in the world. they come on to our campus. they disrupt the learning experience of our students. our students are concerned. how do we respond to that in a responsible, sensitive and constitutionally appropriate way? and that's a very serious challenge. so i don't think that the increase is an increase in the desire to restrict speech. i think the increase is an increased desire to respond to increasingly challenging campus environments. and i think that the events of the world, of course, creep onto the campus. you can watch what happened after ferguson and the way in which the events in ferguson changed conversations on campus and led to certain kinds of
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sensitivities about issues that were going on on campus that hadn't existed in quite the same way two days before the ferguson events happened. i think that -- the link, you're exactly between what is happening off campus and what they then see happening on campus. i would resist the suggestion that the link is drives a drier to restrict speech. i think it drives a desire to try to figure out how to respond appropriately to an extraordinarily complicated world. >> i would like to wholeheartedly agree with that. in fact, you stole my thunder on the line about some nefarious thing happening in the back room. as i mentioned earlier, the real goal for administrators is not to plan to try to restrict speech, but to try to balance speech in a way that it protects the students' rights and also allows institutions to operate as efficiently as possible. and so in that, it is a difficult balance.
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>> hi. good afternoon. one of the questions from the moderator was how the workplace doctrine would shape out on a college campus. and you framed your response, susan, as -- or in the context of the university's being a place to promote sharing of ideas. i think the reality is that most college students are on college campuses to get the job training they need and get skills to enter the american workforce. would that change your analysis of that question? >> i think that if your goal is just to learn certain skills and not to hear different ideas, there are private schools that you can go to where -- because private schools are allowed to enact speech codes. whatever speech codes they want as long as they are upfront about it and don't promise free speech and deliver something else. there are definitely universities where you could go and they will help you fulfill your goal of not hearing ideas and just learning skills.
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but i guess i would say that that idea of the university is at odds with what the supreme court has said again and again about the purpose of the university. but also at odds with the fact that the vast majority of colleges, even private colleges, set themselves -- advertise themselves as places where everyone will hear new ideas and debate all sorts of different topics. so i guess, we can agree to disagree on the purpose of universities. but schools need to, at the very least, advertise themselves as whatever they are. and like i said, the vast majority of colleges advertise themself as places where people will hear new ideas. >> hi. my question is actually for susan. you mentioned yik yak and i'm a little confused about why we want to protect that sort of speech where it is -- you're
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able to post anonymously and say anything about -- and i -- maybe i personally had a bad experience with it in college. i wasn't in a sorority or anything but i know people in sororities were constantly being tacked badly about on that app and it really did affect the way that we all saw each other on campus. so i want to know why -- why you think that it needs to be protected. >> that is a good question. and it is not that we particularly like the speech that is happening. and when my colleagues and i assess these cases, we really try to not even make a value judgment on the speech a lot of the time. but the problem is that if we start sense orring entire -- sensoring forms of expression and if we try to differentiate between hurting one person or another person, then we lose a whole wide range of speech and a lot of that
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could be really helpful speech. historically, a lot of things have been published anonymously that ended up being incredibly important for the founding of the country and setting up our government and all sorts of things that -- i mean history would have just been so different if people didn't have the ability to speak anonymously. so i think anonymous speech, it can be used to be extra mean but it could also be used to make bold stances where they are necessary and there is just no way to really separate those in a forum like this. if, again, if there are true threats or harassment that rises to the level of davis or of ocr's better standard, then there are things that can be done, in accordance with the first amendment law. but when it comes to just hurtful speech or ideas that you
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disagree with, free speech advocates tend to say that the solution to bad speech is more speech. and so we really encourage people to speak out and to explain why you disagree or don't like that speech or why people are wrong and it doesn't always get exactly the result that you want, but the alternative is it risks shutting down too much speech that might really help society. >> one more question. one more question. >> hi. thank you all again for coming. so my question is also on the topic of the idea of colleges being a place where the market place of ideas is particularly important. and where we do need to have a lot of discussion. but my question is whether, for all of the panelists, i guess, whether all of you necessarily should be protected, particularly in terms of hate
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speech, maybe perhaps that is kind of speech that isn't worthy of first amendment protection to begin with. but i would like to hear the thoughts on that. >> should i go ahead? >> sure. >> well, i think that it's very dangerous to start going down that road. because, sure, maybe there are some view points that these days maybe the entire room or most of the room could agree is not a valuable view point. but historically, people felt the same way about, you know, black people not being slaves. there is always going to be different view points -- or historically there have been so many view points that seemed completely unacceptable at the time but now are, you know, the norm. and i think that it is impossible to know what -- how views are going to change over time. but it is also impossible to set
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up a system where there is someone making that distinction who is always going to be right. i personally would not trust any person on the earth to be the orbiter of what is an acceptable view point and what is not an acceptable view point. where are they going to come down on marijuana legalization or gay rights. you just can't know. and part of the reason why the first amendment was written was because we know not to trust people in power to make that distinction. >> and here is a personal example from my perspective. driving to the airport through mississippi to memphis to get here, just the other day, i don't know if you all do this, i often tune into this radio station, the philosophy of which -- with which i differ greatly. and do that just because it infuriates me. and i was driving along about to careen off the road listening to
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this dribble. and reminding myself, that i do that because i have to reiterate in my own mind that i don't agree with this and i don't appreciate it. but i do appreciate this person's right to have that opinion. so that's how i would respond to that. >> sorry, that also just reminded me of a couple of points that i want to make which is that hearing the ideas you disagree with, even if it doesn't change your point of view, it could serve a couple of purposes. you understand the other person's point of view better and it makes it more able to argue against them and persuade them. and the other thing is that honestly racist people are going to exist forever and that is just a fact of life. so would you rather know who they are or would you rather -- i mean -- [ applause ]
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>> might be best to end there. but not having any judgment. let me try and give you this framing. i really -- i completely agree with susan, that in general the remedy for the speech we dislike is more speech. i think that is a great principle. i think it is the best principle. i resist the idea that it is the only principle or that it is a sufficient principle. if someone is threatening you, physically threatening you, we don't say, threaten back. and let's see how it works. so there are circumstances where obviously we've reached the end of this principle that is the -- the default position. and i think what is helpful is to realize that when it comes to speech, the idea of restricting it is where we go last. sometimes that is where we have to go. when all other things fail us. but i think the important thing is to have conversations about when those occasions arise and to understand the legal parameters around them. >> thank you very much.
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[ applause [ applause ] the campaign 2016 bus continues its travels to honor winners from this you're's student camp competition. the bus stopped in new jersey to recognize madeline balm for her second prize video on when the house becomes a home. she was honored in front of her classmates and family and before having a chance to visit the bus. bus travelled to west scranton intermediate school in pennsylvania to honor other students for national immigration issues. they donated $500 of the $1,500 to the local charity of scranton. the bus drove to clinton township middle school to
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celebrate a second prize winning video, the next big problem. over 250 classmates and teachers and family members and elected officials, including congressman leonard lance joined in the ceremony for zachary. a special thanks to comcast for helping to coordinate the community visits. and view all of the winning documentaries at student c-span washington journal live every day with news and policy issues that impact you. coming up on thursday morning, washington post national political reporter robert costa will join us to preview the meetings tomorrow between donald trump and congressional public leadership. and darrell issa will discuss civil asset forfeiture laws that allow police to seize property as long as they believe the assets are connected to criminal activity. and democrat congressman joe cord knee is talking about addressing the opioid crisis including a bill he sponsored which would provide $600 million
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in emergency funding. also dom defrank, editor for national journal will talk about his coverage of the presidency of george h.w. bush and george w. bush. and he'll discuss the bush family's strong dislike of donald trump. watch the c-span washington journal. join the discussion. the importance of cyber security in medical facilities around the country was the focus of an event hosted by politico yesterday. this is about an hour and 15 minutes. ladies and gentlemen, please welcome executive editor for health care, girard cannon. [ applause ] >> good afternoon, everyone. i'm joann canyon, one of the executive editor for health care and i would like to tha


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