If large numbers of people believe in freedom of speech, there will be freedom of speech, even if law forbids it. But if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them. —First Freedoms: A Documentary History of First Amendment Rights in America (Oxford University Press, 2006), from the introduction by this Voice columnist.
On October 4, at a Columbia University event sponsored by the College Republicans, Jim Gilchrist, leader of the anti-immigration Minutemen—as has been reported far and wide—was physically and furiously prevented from speaking by a mob of righteous gauleiters, some of whom were roaring, “He has no right to speak!”
To again bring into the conversation Mr. Orwell—who did not benefit from a Columbia University education—he had the heretical belief that “if liberty means anything at all, it means the right to tell people what they do not want to hear.”
First Amendment law is clear that everyone has the right to picket a speaker, and to go inside the hall and heckle him or her—but not to drown out the speaker, let alone rush the stage and stop the speech before it starts. That’s called the “heckler’s veto.”
My first reaction on hearing of this mugging of the Minutemen was that, for Columbia University president Lee Bollinger, it would be a blessed “teaching moment”—as they say in the teaching trade. Before he ascended to his present eminence, Bollinger was known in academic circles as a First Amendment scholar. (Columbia is a private university, but professes to adhere to the spirit and letter of the First Amendment.)
President Bollinger did make an aggrieved statement, calling the disruption “one of the most serious breaches of academic faith that can occur in a university such as ours” and promising a thorough investigation of the “incident.” The university has not invited the Minutemen to return under guaranteed protection.
And as of this writing, that was it. I had expected that Bollinger, as a renowned advocate of freedom-of-speech discussions, would seize this teaching moment and hold university-wide debates on the fading knowledge of (and therefore belief in) the First Amendment by students and administrators on many college campuses around the country—not only at Columbia.
As a member of the advisory board of FIRE (the national Foundation for Individual Rights in Education)—which relentlessly protects the rights of speech and conscience of students and professors across the ideological spectrum—I get very frequent reports of the suppression of minority views on campuses, but short of the kicks and punches that attended the silencing of the Minutemen at Columbia.
As a major center of higher learning, Columbia, by actively engaging in the dangerous undermining of the First Amendment across the land—not only by the Bush administration—could have a considerable impact. Such a “teaching moment” would have gladdened the heart of the late Supreme Court justice William Brennan, who often told me that it is “from the First Amendment that all the rest of our liberties flow.”
Just looking at the five freedoms protected by the First Amendment proves his point. How many Americans can list those five freedoms? Can you? In a huge Knight Foundation survey last year of 100,000 high school students, three out of four said they “do not think about the First Amendment,” or that take their First Amendment rights “for granted”—whatever that means. And 36 percent thought newspapers must first get government permission before publishing. There is no evidence of substantial change in these views once they’re in college.
At the very least, President Bollinger could ask Floyd Abrams, the nation’s premier First Amendment litigator—including at the Supreme Court—to conduct a teach-in at Columbia. Abrams is the William J. Brennan Visiting Professor of First Amendment Issues at Columbia’s Graduate School of Journalism.
Abrams, who has long been one of my mentors on all sorts of free-speech issues, will appear in my next column, which concerns a trial in January of defendants charged by the Justice Department with violating the Espionage Act of 1917. These two private citizens, not connected to the government, aren’t journalists, but an eventual Supreme Court decision could further, and radically, limit “the people’s right to know”—under the First Amendment—what the government does in the name of national security. The defendants in this ominous trial are two former lobbyists for the American Israel Public Affairs Committee (AIPAC). They are charged with conspiracy to communicate information about national defense to persons not authorized to receive such information. Those persons included journalists.
Speaking before the House Intelligence Committee, Jane Kirtley, professor of Media Ethics and Law at the University of Minnesota, cautioned that this prosecution could be a prelude to using the Espionage Act of 1917 against journalists who reveal classified information to us, the public.
You may remember that the Justice Department said it would conduct criminal investigations of three of this year’s Pulitzer Prize winners—Dana Priest of The Washington Post for reporting on secret CIA prisons in Eastern Europe, and James Risen and Eric Lichtblau of The New York Times for exposing Bush’s unleashing of the National Security Agency’s secret and warrantless eavesdropping on Americans’ e-mails and phone calls.
In both cases, that information was indeed classified, and Bush said that what these journalists had done was “shameful.” And therefore criminal.
In Floyd Abram’s address “The State of Free Speech” at Syracuse University (excerpted in the October 18 New York Law Journal), he argued:
“Anyone who covers the CIA, the Department of Defense, or the Department of Homeland Security is routinely provided classified information by people in and out of government. Only this permits any serious discussion of the government’s most important acts.” (Emphasis added.)
The students at Columbia University could learn a lot from Abrams, and not only about their peers’ brutish shutting down of the Minutemen’s freedom of speech.