With students returning to college campuses around the country this month, many observers expect some kind of continuation of the protests regarding Israel and Gaza which were so prevalent last year.
As this new school year begins, it is useful to examine the justification, scope and limits of one of the rallying cries of protestors — the right to be heard on salient moral and political issues of the day.
The existence of this right is foundational to our constitutional jurisprudence and democratic political system. But what exactly does it mean?
In its essence, the right to be heard is intrinsic to freedom of speech. It encompasses the right of speakers to attempt to inform or persuade their audience of the merits of their arguments and ideas. The government doesn’t get to decide what speech is worthy of public expression or attention. That power belongs to private individuals and associations.
The basic principle can be stated simply: We trust the people to distinguish good speech from bad speech, strong arguments from weak arguments, more than we trust the government to decide what speech is so bad that we should not be allowed to hear or read it and evaluate it for ourselves.
This is a powerful commitment, and it can be a costly one. The expression of bigotry, for example, can cause serious emotional harm to its victims. Even worse, it may eventually persuade people to engage in unlawful discrimination or even violence. There is no guarantee that the marketplace of ideas will always yield acceptable results.
As Justice Holmes, one of the fiercest advocates of freedom of speech on the Supreme Court, acknowledged, freedom of speech “is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge.” But freedom of speech is a critical component of the American experiment.
What this means, on the ground, is that public university administrators can condemn student speech they find repugnant to the university’s ideals. What they cannot do, however, is to prohibit the expression of bad ideas.
And the right to be heard requires that protestors be given a fair opportunity to reach their intended audience. They cannot be told to limit their speech to a far corner of the university’s grounds where no one would ever hear their message.
So the right to be heard carries a lot of weight. But it has important limits.
The right to be heard is not a right to be obeyed. Protesters who engage in coercive conduct, such as obstruction and disruption, and who insist they will continue to do so until their demands are met are not grounding their actions on a right to be heard. Free speech protects persuasion, not coercion.
Also, the right to be heard does not empower protestors to conscript or commandeer others into joining their audience. Students, faculty and staff who do not want to listen to the protestors’ message must be able to avoid an expressive interaction in which they do not want to participate.
At some point, continued targeting of individuals with speech they do not want to hear crosses a line from free speech to harassment, which can be sanctioned.
Further, the right to be heard does not entitle protestors to prevent other speakers from expressing a different message. If anything, shouting down other speakers is the antithesis of the right to be heard.
Similarly, free speech doctrine prohibits regulatory favoritism. Government regulations cannot allow some private speakers opportunities for expression denied to other speakers because the government assigns greater value to the content and viewpoint of one message compared to another. The right to be heard is an equal opportunity right.
Finally, the right to be heard does not include the right to subsidized advocacy. There can be and is legitimate debate about the purpose and mission of universities in our society. Whether university administrations, officials or sub-units such as academic departments should engage in advocacy on public policy disputes is a hotly contested issue today. Protestors may certainly argue that universities should engage in such advocacy. The right to be heard subsumes such expression.
What it does not require is the absence of consequences when universities engage in such advocacy. To the extent that taxpayers, donors and alumni conclude that a university or one of its departments has shifted its foundation from a focus on inquiry to a focus on advocacy, that conclusion risks consequences.
We do not typically accept an individual or collective obligation to subsidize advocacy institutions as a generic category. We support those institutions whose views we endorse and decline to subsidize institutions whose advocacy we reject.
Universities can define themselves as instruments of social change (progressive or reactionary), or indeed, as revolutionary institutions. The harder question is whether such self-definitions undermine the support they demand and receive from a community that is the target of such change or revolutionary fervor — and which rejects these goals.
In the words of a song broadcast years ago, “The Revolution Will Not Be Televised.” It probably will not be subsidized either.
Alan Brownstein is a professor of Law emeritus at UC Davis School of Law.
