They Managed a Protest: Prohibitory, Ethical, and Prudential Policing of Academic Speech

BYU Law Review Volume 50 Issue 3 Article 7 Spring 4-30-2025 They Managed a Protest: Prohibitory, Ethical, and Prudential Policing of Academic Speech David Schraub Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Law Commons Recommended Citation David Schraub, They Managed a Protest: Prohibitory, Ethical, and Prudential Policing of Academic Speech, 50 BYU L. Rev. 619 (2025). Available at: https://digitalcommons.law.byu.edu/lawreview/vol50/iss3/7 This Article is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact . 2.SCHRAUB.FIN.NH (2025).DOCX (DO NOT DELETE) 4/8/25 10:50 AM They Managed a Protest: Prohibitory, Ethical, and Prudential Policing of Academic Speech David Schraub* CONTENTS INTRODUCTION ................................................................................................ 620 I.THE STANFORD PRESENTER EXPERIENCE ........................................................ 623 II.THREE LEVELS OF REGULATING SPEECH AND PROTEST .................................. 629 A. Prohibitory .............................................................................................. 630 B. Ethical....................................................................................................... 642 C. Prudential ................................................................................................ 649 III.WHAT DO WE EXPECT OF ACADEMIC SPEECH ENFORCERS ? ......................... 658 A. Beyond Prohibitory Regulation............................................................ 659 B. Prohibitory Regulation and Free Speech Externalities ..................... 665 C. The Scope of Prohibitory Punishment ................................................ 669 CONCLUSION ................................................................................................... 679 * Associate Professor, Lewis & Clark Law School. The author thanks commentators at the Loyola Constitutional Law Colloquium and the National Conference of Constitutional Law Scholars, in particular Rebecca Aviel, Josh Braver, Jake Bronsther, Emma Brush, Ron Den Otter, Anuj Desai, Kathleen Hirsman, Toni Massaro, Linda McClain, and Scott SkinnerThompson, for incisive comments, as well as Rosie Lutz for providing superb research assistance. Lexie Zirschky deserves special mention for giving an insider’s perspective from the vantage of an (extremely dedicated) students affairs professional. 619 2.SCHRAUB.FIN.NH (2025).DOCX (DO NOT DELETE) BRIGHAM YOUNG UNIVERSITY LAW REVIEW 4/8/25 10:50 AM 50:3 (2025) INTRODUCTION Universities are often a raucous setting for free speech. Tasked with encouraging deliberation and inquiry into the world’s most pressing and contentious topics, academic spaces regularly see conflicts and clashes over speech. Frequently, the university is asked to mediate these conflicts in an institutional capacity—for example, to ensure that a controversial speaker is free to deliver his remarks free from significant disruption, or to encourage university community members to interact with their peers or to explore a given issue area in a respectful manner. Universities are thus ground zero not just for public debate, but also for the meta-debate over how we best facilitate public debate. And the stakes are high. Sometimes, universities face obloquy and censure for being insufficiently protective of speech. Several federal judges announced a prospective boycott of Yale Law School for failing to adequately address “shout downs,” where student protests functionally prevent (or seek to prevent) an invited speaker from presenting before the university community.1 Other times, universities face threat and liability for being too conducive of speech. Oberlin College, for instance, was slapped with an eightfigure judgment for being too helpful in facilitating campus speech viewed as defamatory toward a local business,2 and several 1. Karen Sloan, Yale Law Dean Rebukes ‘Rude and Insulting’ Students Who Protested Speaker, REUTERS (Mar. 28, 2022, 3:11 PM), https://www.reuters.com/legal/transactional/ yale-law-dean-rebukes-rude-insulting-students-who-protested-speaker-2022-03-28 (reporting on a student shout down of a speaker from the conservative legal advocacy group Alliance Defending Freedom); Joe Patrice, James Ho Cancel Cultures Yale Law FedSoc Because Other Students Are Mean To Yale Law FedSoc Students, ABOVE THE L. (Sept. 30, 2022, 2:01 PM), https://abovethelaw.com/2022/09/james-ho-cancel-cultures-yale-law-fedsoc-becauseother-students-are-mean-to-yale-law-fedsoc-students (reporting on an announced boycott of Yale Law School by several federal judges, led by Fifth Circuit Judge James Ho). 2. Gibson Bros. v. Oberlin Coll., 187 N.E.3d 629 (Ohio Ct. App. 2022). The underlying dispute stemmed from allegations by many Oberlin students that Gibson’s Bakery had engaged in a pattern of racial profiling after it sought the arrest and prosecution of several Black students who had been caught shoplifting. Oberlin students organized protests of the bakery, which the college did not block and which it was accused of facilitating by, for example, having an administrator present for the protest who helped hand out flyers and by allowing Oberlin students to use campus copy machines to create denunciatory documents as well as enabling their distribution through college email lists and display in college buildings. Regardless of whether one agrees that such conduct should suffice to generate a multi-million-dollar liability judgment against the college, it seems apparent in the Gibson case that the Oberlin community treated the bakery poorly; there was little evidence that the 620 2.SCHRAUB.FIN.NH (2025).DOCX (DO NOT DELETE) 621 4/8/25 10:50 AM Policing of Academic Speech prominent law firms threatened to curtail recruiting at top law schools unless they tamped down on antisemitic speech that had allegedly pervaded their campus environments.3 Campus protests represent a particularly fraught instantiation of this dilemma. Protests are a form of speech, but in some circumstances they can also obstruct speech. “Shout downs,” heckling, ad hominem attacks, or crude signs or questions have, at various points, all been portrayed as both protected speech and the antithesis of protecting speech. The knife’s-edge quality of these disputes—for which universities can face censure for being either too solicitous or too censorial—should ideally counsel humility in how we judge the university actors tasked with policing speech controversies. But this has not been the case. Many commentators confidently assail university staff and administrators for what they deem obvious free speech failings in circumstances where, at the very least, the facts on the ground (...truncated)