A half-century ago, student activists at the University of California clashed with administrators during the Berkeley Free Speech Movement, a series of events that would greatly expand free-speech rights of people at public colleges and universities.
Today, activists at UCLA are demanding that administrators punish some of their fellow students for expressive behavior that is clearly protected by the First Amendment.
In the past, free-speech clashes have turned on whether Americans have the right to criticize their own government during wartime, to march as neo-Nazis past the homes of Holocaust survivors, to submerge a crucifix in urine, or to burn the United States flag.
All of those things, the courts have ruled, are protected speech.
What did UCLA students find so outrageous as to warrant the violation of the fundamental right to free expression? A “Kanye Western” theme party where students wore costumes that parodied rap superstar Kanye West and his celebrity wife, Kim Kardashian. For this, UC student activists would squander their inheritance.
Perhaps 18-to-22-year-olds can be forgiven for failing to appreciate what’s at stake in their activism. But UCLA administrators cannot be forgiven for complying with student demands to punish this free expression—a glaring illustration of their low-regard for the First Amendment, California law, and liberal ideals.
How did this happen?
Last week, when this controversy began, many news outlets reported that some of the fraternity and sorority members who attended the “Kanye Western” theme party wore blackface. While that offensive behavior would not change the First Amendment analysis to come, there is no evidence for the claim: The Greek organizations deny it and no published photographs from the party depict anyone in blackface.
“We have been asked to respond specifically to rumors that some guests attended the event in blackface,” the fraternity said in a statement. “It is important that we put this rumor to rest. Some of our guests attended the event dressed as miners in reference to the Kanye West song ‘Gold Digger,’ but their attire had nothing to do with race.”The Huffington Post has published a photograph that seems to confirm this explanation: a group of girls pose with a bit of soot smudged on their faces, but not covering it, and there can be no doubt that they are attempting to dress as miners, or “gold diggers,” because they are all holding plates of “gold” as if panning for it.
Others who objected to the theme party deemed it an example of cultural appropriation, a “microaggression” against black students, or deeply insensitive and hurtful.
“The sagging or baggy jeans that students wore to the party represent one of the most notorious African American stereotypes in fashion,” UCLA student Caleb Jackson wrote in The Daily Bruin. “So notorious in fact, that it has led several cities across the country to make sagging illegal. The racial undertones associated with this clothing style make its cultural appropriation highly offensive to Black students.”
Said Hanan Worku, another UCLA student, on Facebook, “Yes that’s right, a frat decided it would be okay to have their members repeat a part of history that demoralized, mocked and dehumanized African Americans/ And celebrate while doing it. They showed up with their chains and braids with stuffed butts for God knows what reason. True Bruin values amiright????!!!!! Not to mention all of this happened last night which happened to be a part of Black Bruin Welcome Week! Coincidence right??????”
Meanwhile, critics of the critics insist that West is a famous celebrity, not a stand-in for black culture; that stuffed butts were a reference to Kim Kardashian, who is white and of Armenian descent, not black; that there is nothing wrong with appropriating the dress of hip-hop culture, which is not the same as black culture; that it’s myopic for privileged student activists to focus on a frat theme party while living in a city plagued by police killings, homelessness, housing discrimination, and other injustices; that activists are giving Greek organizations too much power to set their agenda; and that college kids these days are oversensitive to the point of self-parody.
Those substantive debates are healthy and both sides raise plausible points.
It is salutary for collegians to contest such matters in the student newspaper, on campus, and on social media. Evidently, public discourse has changed some minds. Said the frat, “we sincerely apologize for the offense and hurt we caused to our fellow Bruins, especially those in the African American community ... We are grateful for the dialogue we have had so far, and we intend to continue communicating with our fellow Bruins about how SigEp and Alpha Phi can make this a learning opportunity.”
What’s unhealthy is the movement to suppress free speech at UCLA.
University administrators bear the most culpability. After hearing objections to the theme party, but before finishing an investigation into it, UCLA officials suspended the social activities of the fraternity and sorority, effectively punishing them without due process even as these same officials publicly acknowledged that they didn’t have all the facts. Moreover, university officials are abusing their authority merely by investigating protected speech in the first place. And the student newspaper is cheering them on, demanding in an editorial that the office of UCLA Fraternity and Sorority Relations take a more active role in preemptively clearing all party themes.
UCLA law professor Eugene Volokh, one of America’s foremost First Amendment scholars, has published several Washington Post items explaining why these reactions are legally dubious. “The suspension of the fraternity and sorority is likely unconstitutional,” he wrote. “Costumes that convey a message are treated as speech for First Amendment purposes (see, e.g., Schacht v. United States (1970) and Cohen v. California (1971)). And a university may not punish speech based on its allegedly racist content; see, e.g., Rosenberger v. Rector (1995), which holds that a university may not discriminate against student speech based on its viewpoint.”
He adds that “interim speech restrictions imposed before a full investigation and adjudication have historically been seen as more constitutionally suspect (as so-called ‘prior restraints’), see, e.g., Vance v. Universal Amusement, Inc. (1980); and the prior restraint doctrine is applicable to restrictions imposed by universities, see Healy v. James (1972). But in any event, even setting aside the prior restraint doctrine, suspending an organization’s social activities because of the offensive message conveyed by the organization’s past speech violates the First Amendment.”
In a followup post, he notes that the Supreme Court has unanimously held that student organizations have the right to express “the thought that we hate,” a far more offensive message than anything conveyed by the Greek organizations at UCLA:
In that case, Christian Legal Society v. Martinez (2010), the Court held that universities may require student organizations that get university-provided benefits to accept all would-be members — including ones whose beliefs are at odds with the organization’s principles (e.g., if an atheist wants to join the Christian student group, or vice versa). I think that was correct, for reasons I gave in this article. (The article was published several years before the Christian Legal Society decision, so it doesn’t cite that decision.) But the result is certainly controversial: The majority consisted just of five Justices, the four liberals plus Justice Kennedy; the four other conservatives dissented.
Yet even the majority made clear that, while reasonable and viewpoint-neutral restrictions on student group membership policies are constitutional, viewpoint-based restrictions on student group speech are unconstitutional:
Although registered student groups must conform their conduct to the Law School’s regulation by dropping access barriers, they may express any viewpoint they wish — including a discriminatory one. Today’s decision thus continues this Court’s tradition of “protect[ing] the freedom to express ‘the thought that we hate.'”
So if a group wants to express hostility to homosexuality—or hostility based on race, or sex, or religion, or what have you—it has the right to do that. And that’s so even if the group seeks access (on the same terms as other groups) to generally available university property, services, and subsidies. And on this point, the Court was unanimous: The liberal Justices plus Justice Kennedy took this view; the other conservative Justices would have just taken this further, to secure student groups’ right to choose their members as well as their right to choose their speech.
On Monday, UCLA student Caterina Kachadoorian argued in a Daily Bruin op-ed that, as an Armenian, she wasn’t offended by the Kim Kardashian costumes, and that student activists at UCLA would do better to focus on black-on-black violence (a position that I find wrongheaded). Says a censorious comment beneath that article:
I have sent Caterina Kachadoorian's letter to the Office of Internal Affairs. I have demanded an investigation into the Daily Bruin to determine how this hate speech was published. I have requested an internal investigation and firing of the staff member that allowed this hate and discrimination to be published.
This student impulse to demand that authority figures punish other students who say or do things that they don’t like could not come at a more inopportune time. As Glenn Greenwald wrote in a recent article at The Intercept, “One of the most dangerous threats to campus free speech has been emerging at the highest levels of the University of California system, the sprawling collection of 10 campuses that includes UCLA and UC Berkeley. The university’s governing Board of Regents, with the support of University President Janet Napolitano and egged on by the state’s legislature, has been attempting to adopt new speech codes that—in the name of combating ‘anti-Semitism’—would formally ban various forms of Israel criticism.”
Under the most stringent such regulations, students found to be in violation of these codes would face suspension or expulsion. In July, it appeared that the Regents were poised to enact the most extreme version, but decided instead to push the decision off until September, when they instead would adopt non-binding guidelines to define “hate speech” and “intolerance.”
One of the Regents most vocally advocating for the most stringent version of the speech code is Richard Blum, the multi-millionaire defense contractor who is married to Sen. Dianne Feinstein of California. At a Regents meeting last week, reported the Los Angeles Times, Blum expressly threatened that Feinstein would publicly denounce the university if it failed to adopt far more stringent standards than the ones it appeared to be considering, and specifically demanded they be binding and contain punishments for students found to be in violation.
The San Francisco Chronicle put it this way: “Regent Dick Blum said his wife, U.S. Sen. Dianne Feinstein, D-Calif., ‘is prepared to be critical of this university’ unless UC not only tackles anti-Jewish bigotry but also makes clear that perpetrators will be punished.” The lawyer Ken White wrote that “Blum threatened that his wife … would interfere and make trouble if the Regents didn’t commit to punish people for prohibited speech.” As campus First Amendment lawyer Ari Cohn put it the following day, “Feinstein and her husband think college students should be expelled for protected free speech.”
Students who value fundamental human rights, protecting unpopular activism, or safeguarding the political liberties of the least powerful among us ought to be lobbying for the most stringent free-speech protections possible, not undermining core human rights that have benefitted generations of marginalized people as a salve for outrage at a frat party. As the ACLU once explained in answer to the question of why it sometimes mounts defenses of speech that is racist or promotes intolerance:
Free speech rights are indivisible.
Restricting the speech of one group or individual jeopardizes everyone's rights because the same laws or regulations used to silence bigots can be used to silence you. Conversely, laws that defend free speech for bigots can be used to defend the rights of civil rights workers, anti-war protesters, lesbian and gay activists and others fighting for justice. For example, in the 1949 case of Terminiello v. Chicago, the ACLU successfully defended an ex-Catholic priest who had delivered a racist and anti-semitic speech. The precedent set in that case became the basis for the ACLU's successful defense of civil rights demonstrators in the 1960s and '70s.
The indivisibility principle was also illustrated in the case of Neo-Nazis whose right to march in Skokie, Illinois in 1979 was successfully defended by the ACLU. At the time, then ACLU Executive Director Aryeh Neier, whose relatives died in Hitler's concentration camps during World War II, commented: "Keeping a few Nazis off the streets of Skokie will serve Jews poorly if it means that the freedoms to speak, publish or assemble any place in the United States are thereby weakened."
The college students fighting to limit free speech or to punish free expression are courting tremendous harms that would ultimately fall disproportionately on the least powerful, most marginalized groups of the present and future––and as UCLA graduates, they are highly unlikely to be in either group, which may help explain their lack of concern for how their behavior could affect the less privileged. It is nevertheless incoherent for activists who say that they live in a system of white supremacy to empower state administrators to police speech at their discretion!
And all calls for university administrators to police the minutiae of campus life rob students of the opportunity to learn how to govern themselves even as they contribute to the spike in administrative costs that render so many unable to afford tuition. The notion that university money is best spent paying someone to sit in an office vetting the themes of fraternity parties sounds like the premise of a SNL skit.
To deflect criticisms like these, defenders of the student activists are using the increasingly common tactic of treating the fringe position of a small number of ideologically homogeneous progressives as if it were equivalent to the opinion of all black people. “When black students share their hurt and disappointment with something like the ‘Kanye Western’ party, too often we respond with the way we see things, and it’s usually accompanied with criticism about how incorrect we think the black point of view is,” Chris Tang, who is not black, writes in another op-ed in The Daily Bruin. “But there’s an issue with this because we are implicitly saying that we understand the black point of view, when in reality, many of us don’t.”
There is nothing wrong with a black student being offended by a theme party, and attempts to articulate such grievances ought to be met with open-mindedness and compassion. And frats and sororities should be more sensitive to how their actions will be received.
But there is no “black point of view,” a prejudicial notion that is so easily refuted that it’s a wonder anyone invokes it. There are plenty of black people––a majority, I would wager––who understand better than many other Americans the importance of the First Amendment to the history of the civil-rights movement and the future of other civil-rights causes. As if to underscore that point, the Los Angeles Times highlighted an open letter sent to UCLA by Michael Meyers, president of the New York Civil Rights Coalition. He said that “as an African American civil rights leader” he had to speak out. “We are increasingly alarmed—and distressed—by the failure of public university officials to support free speech and diversity of opinion on campus,” he wrote in the letter to UCLA’s chancellor. “Diversity of opinion surely includes the right of students to contest orthodoxy and to poke fun at popular culture and celebrities.”
That is exactly right, and UCLA administrators should publicly apologize for acting to the contrary rather than caving to the illegal demands of student activists.