In my previous post on the controversy surrounding the Hannah Arendt Center’s invitation to Marc Jongen as an instantiation of the new academic free speech debates, I argued that there is a spectrum of possibilities when it comes to campus invitations and the strategy of “no platforming.” At one end you have someone like Richard Spencer, who ought never be invited to a campus event, and who can and must be “no platformed.” At the other stands someone like Charles Murray who (to my view) is wrongheaded and ought to be resisted, but surely not silenced if invited. Someone like Milo Yiannopoulos, I suggested, falls somewhere between the two. The next time an event is called for a college campus that involves a speaker whose views seem close enough to the “from around Milo to around Spencer” end of the spectrum of intolerance, I suggested we apply the principle of coalition politics to deter the invitation at all costs. If the invitee should fall “from around Murray to Milo,” the temptation to impede the invitation ought to be resisted.
What light if any, I will ask here, does this claim shine on the larger discourse about academic free speech, specifically as that discussion has come to focus, for historical and strategic reasons, on UC-Berkeley. The proximal cause of Berkeley’s centrality is the shutdown of an intended speech by Milo in February 2017, and then the “Free Speech Week” he was meant to headline in September 2017. But, of course, it’s the history of UC-Berkeley as the epicenter of the free speech movement of 1964-65 and the half-dozen years thereafter (discussed here by frequent Public Seminar contributor Jo Freeman) that has made the campus such a focal point today. Precisely because student-activists at Berkeley made it the centerpiece of Vietnam War-era struggles for free-ranging “expressive activity,” right-wing groups and student activists have made it Ground Zero for the new campus free speech debates.
This point was also made by Erwin Chemerinsky, dean and Jesse H. Choper Distinguished Professor of Law at Berkeley, who argued earlier in the Fall 2017 semester (against the insistence of many Berkeley faculty) that the invitation to Milo could not reasonably or legally be rescinded, because hate speech is protected speech.  In a statement later published on Vox, he argued that increasingly college campuses are “just the place” that “outside speakers” (like Ben Shapiro and Milo, and the groups that support and finance them) and “outside disruptors” have chosen “for their battle,” while neither students nor faculty are actively engaging – in either support or opposition — with the expressive content that it is the putative purpose of the controversial events to convey. Increasingly (public) universities are expending tremendous material resources in order not to run afoul of legal precedents that forbid them from refusing to enforce First Amendment protections on “controversial” speech, in cases where neither the speakers nor the audience are directly involved in the educational mission of the institution.
There is much to be said for Chemerinsky’s observation, but it sells short one real basis for concern here. Namely, as Amy Binder has pointed out, the material incentive for organizations such as Young America’s Foundation, the Leadership Institute, and the Intercollegiate Studies Institute to get controversial speakers invited by student groups and clubs and then have those invitations denied or rescinded by university administrations. In this way, further conservative fundraising can occur in the wake of manufactured outrage at the “liberal academy.” This underscores my point in the previous post: in assessing what to do with respect to a controversial invitation to speak on campus, we would do well to consider the prudence, rather than rightness, of one’s response. Given the commodification of not merely the invitation to a symbolically charged “liberal bubble” such as UC-Berkeley, but also that of the unsuccessful attempt to enact such an invitation, the free speech controversy is often as much about strategic action as it about conflicting norms.
But it is surely about conflicting norms as well. And in this sense, Chemerinsky is right to resist the claims of Robert C. Post, professor of law at Yale Law School and dean of the school from 2009 to 2017, who argues that there is no first amendment right to speak as one wishes on a university campus. Post believes that the protection of free speech is based on the principle of an equality of ideas, wherein equality is proper to public discourse but does not apply to the university space because “universities can and must engage in content discrimination all the time.” As universities do not and cannot maintain the equality of ideas, and this is the basis of free speech protections, it does not make sense to think of them as applicable at universities. This argument can be understood in two ways, as Chemerinsky points out: Post could be making a descriptive or a prescriptive claim about the law. If it is prescriptive, then we need to debate the claim normatively; practically and descriptively, however, precedent in the US is against Post, at least in the case of public universities, like Chemerinsky’s. This means that what remains relevant about the debate between Chemerinsky and Post is the normative question of whether or not universities, public or private, should engage in content discrimination when it comes to the appearance on campus of what Judith Butler analyzed some 20 years ago under the memorable title Excitable Speech, a book that I have earlier argued is essential reading for those who think about free speech and its protection under the First Amendment.
Thus construed, the debate has the same form, if not precisely the same content, as the contest between Chemerinsky’s view and the rebuttal Butler herself offered to it last month. Here, Butler interestingly aligns herself with Chemerinsky as an adherent and advocate of the priority of First Amendment protections, differentiating (if not alienating) herself from colleagues who argued Milo should be excluded because he engages in hate speech. Given the central claims of Excitable Speech, it ought not be surprising that Butler refuses to join her Berkeley colleagues in insisting that Milo’s invitation be blocked because he engages in hate speech — Butler emphatically opposes the criminalization of hate speech. All the same, it is important to note both that it is by examining where Chemerinsky and Butler agree and where they disagree that we are most likely to determine where the truth of the matter rests, and this is so because they both oppose content discrimination as the ground of exclusion from university events, if such exclusion should ever be countenanced.
Conor Friedersdorf misses just this in his reply to Butler in the Atlantic, taking Butler to task for arguing “Title IX and UC Berkeley’s Principles of Community should sometimes trump the First Amendment.” He believes this is the consequence of Butler’s argument that if “we willingly allow our environment to be suffused with hatred, threats, and violence, that we will see the values we teach and to which we adhere destroyed by our commitment to free speech or, rather, to a very specific – possibly overbroad – interpretation of what constitutes expressive activity protected by that constitutional principle.” But Butler’s claim simply does not amount to what Friedersdorf’s summary implies. Butler does not argue that Title IX should trump the First Amendment; she’s making two different claims against the “there’s nothing that can be done” argument offered by Chemerinsky. First, that there’s more than one way to interpret the First Amendment itself, specifically there’s more than one sense of how broad is (or ought to be) the exclusion of speech acts on the basis of their propensity to cause harm through incitement, threat or harassment. Second, that even if we are unpersuaded that certain otherwise-protected acts should be excluded on this ground, there’s still the fact that protecting such acts in accordance with the First Amendment violates (or may violate) commitments to protecting the right to dignity in accordance with the Fourteenth.
With respect to the first claim, Butler’s quarrel with the position of Chemerinsky is not, like Post’s, based on the notion that speech acts putatively protected by the First Amendment can be deemed “unacceptable” in a university context because of standards of content discrimination, such as “this is ruled out because it is in violation of Title IX.” If it were true that Butler so argued — and surely many do argue thus — then Friedersdorf’s rebuttal would be apropos. But he misses the mark in Butler’s case because Butler does not so argue, but rather insists, I think rightly, that speech acts that themselves are performative acts whose perlocutionary intent is to inflict harm — like Milo’s harassment of Adelaide Kramer at the University of Wisconsin-Milwaukee — are not “expressive activity” at all. Such acts, as Butler claims, are either themselves crimes (under federal laws meant to protect from violations of dignity) or at least incitement to such crimes and as such are not protected; once they occur, it is surely legitimate to refuse to accept the speaker/actor’s right to First Amendment protections.
So, I agree (as I believe) with Butler that the speech at Wisconsin-Milwaukee merited disruption and cancellation from the moment Milo’s speech act shifted from one of “expressive activity” to one of “inflicting linguistic harm” (aided by new technology, as Butler stresses) or the incitement to such harm. However, as Chemerinsky and Friedersdorf also note, we are here discussing (retrospectively) the prudence and the rightness of the Berkeley administration having decided (as they did not) to prevent Milo’s intended contribution to “Free Speech Week” at Berkeley in September, not what could or should have been done in Milwaukee in February 2017. And here Butler’s position, in my view, has a possibly insoluble problem; for, notwithstanding her claim in this regard,  I don’t see how it is possible to know in advance whether or not intended but not yet occurrent speech acts will not be protected by the First Amendment because they constitute harassment based on a protected category or an immediate threat to the well-being of one or more person(s). One can surmise or predict such a thing, but one cannot know. Given this, we find ourselves in a genuine ethical dilemma: If one does not violate one person’s unlimited right to expressive activity, then one risks the violation of another person’s, or other persons’, to protection from harm to their dignity. If, on the other hand, one refuses in advance to allow the possibility of harm to one person’s (or some persons’) dignity, then one will have expressly violated some other person’s right to speech.
We thus find ourselves squarely in territory of Mill’s On Liberty, that is, just where we found ourselves in thinking through the Jongen Affair. And while I am not persuaded that either Chemerinsky’s argument in anticipation of Butler’s argument, nor Friedersdorff’s rebuttal of it, give us reason to reject her view, I am also not persuaded of her argument for preventing Milo’s appearance, either. For, as discussed last time, Mill claims both that unless it is possible for someone so moved to say everything we can imagine, there is no guarantee that anyone is truly free to express anything and that there is no individual liberty where the individual’s dignity is violable, either by the state or by another person. The first claim is the basis of Chemerinsky’s argument that Berkeley must not (try to) block the Milo speech; the second claim is the basis of Butler’s argument that Berkeley must block it.
In trying to answer the Chemerinsky-Butler (or free speech-no harm; or First Amendment-Fourteenth Amendment) antinomy, then I come back to my insistence that if we are to violate Mill’s “no speech is free if ‘extreme’ speech is regulated principle,” we must do so on Mill’s “no harm principle.” This means that if we are to say it is right to prevent Milo from speaking at ‘Free Speech Week’ at Berkeley in September 2017, we can only do so (i) knowingly, meaning in possession of an understanding of the practical and prudential benefits that will obtain, so far as we can see; and (ii) limitedly, meaning that we expressly frame the grounds for the violation of the principle on those rare occasions when it seems necessary. In my judgment, Butler’s case for blocking Milo passes the bar on condition (ii), it is limited solely to the prevention of immediate harm and not to content discrimination. Butler’s argument does not, in my view, pass the test of condition (i), for the reasons stated above. Thus, my judgment is that Milo’s appearance is not the sort of exceptional case that makes the violation of the free speech principle tolerable.
In sum, then, thinking through “Milo in Berkeley” leaves us not that far from “Jongen in Annandale.” Both of these hard cases test our intuitions about two fundamental commitments of pluralist, liberal democracies: the free speech principle and the no-harm principle, enshrined in the United States Constitution, chiefly, in the First and Fourteenth Amendments. In a further discussion of this issue still to come, I will shift from the consideration of this or that interesting case to the general, and ask whether or not the nature of the contemporary speech situation, embracing what is politically and technologically distinct about our current cultural conditions, demands that we update these two fundamental principles and our sense of what to do when they conflict.
 “I know that Berkeley, especially because of its history with the free speech movement of the 1960s, is a unique place for expression. This is why it is so important that the campus did all it could to ensure freedom of speech. It is also why this campus has the chance to be a model for other schools in upholding the principle that all ideas and views can be expressed at colleges and universities.”
 “If we know that the violence is planned, and that it is coming, as many of us did, and as many of us communicated, why was it that only with the onset of violence did the administration gain a justification to act? For those who wish to shut down such talks, they now know that violence is the most effective means. If we have to wait for the community to be imperiled, either, say, by the violence of white nationalists or their opposition, then are we not requiring that violence in order to gain the justification to cancel an event widely predicted to become violent.”