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Free Speech on Campus (and Elsewhere): An Interview with Eugene Volokh

J. Emilio Flores for The New York Times

“Let’s say somebody is solidly in favor of abortion rights. She feels very strongly. Okay? But how can she learn to persuade anyone on the issue if she never even hears the other side of the argument?”

Eugene Volokh is a professor of law at the University of California–Los Angeles. He became well-known for his blog “The Volokh Conspiracy,” previously housed at The Washington Post and now appearing at Reason. He has commented broadly on First Amendment issues. The “influential conservative blogger,” as The New York Times called him, was cited by the late Antonin Scalia when writing the majority opinion for the Court in the landmark case District of Columbia v. Heller. On May 16th, he joined Merion West to discuss the issue of free speech today, from college campuses to the contentious issue of the video-recording of the police.

Erich Prince: Professor Volokh, thank you for joining us this afternoon. I’d like to start with the media today. As you know, President Trump has made it all but part of his brand to describe CNN and other media outlets as“Fake News.” Some of the President’s critics label this characterization as a “threat to free speech.” I was wondering if you can weigh-in on how legitimate these concerns are: that the President’s rhetoric is a threat to free speech. Or, do you see this as just another act of political theater?

Eugene Volokh: I don’t see the rhetoric as much of a threat to free speech, though I don’t agree with what he is saying.  I think criticizing Trump’s statements as a threat to free speech is an unfair criticism, and it distracts from the real criticisms that should be made. If the critics want to say that there are particular kinds of “fake news” claims he’s making that are wrong, they should explain that—rather than just arguing by labels and saying he is threatening free speech. The overuse of the allegation of “fake news” reminds me of the tendencies of some people to use the term “fascist” to mean anything they disapprove of, or, back in the day, when the term “communist” began to mean anyone on the left.

Likewise, today, we frequently hear overstated and undersubstantiated claims of racism, sexism, and the like; likewise with fake news. Such overstatement is not good for public discourse. It’s not good for having enlightening conversations.  But I can’t say that it’s a particular threat to free speech.

Erich: Another issue you’ve tackled is the videotaping of police. You wrote a piece in your series “The Volokh Conspiracy,” when it was at The Washington Post’s website, on the case of Fields v. The City of Philadelphia in which the court decided that “there is no constitutional right to video record the police…when the act of recording is unaccompanied by ‘challenge or criticism’ of the police conduct.” Could you talk about the legal debate surrounding this issue and how the Courts have generally come down?

Eugene: I wouldn’t focus much on that District Court decision. It’s a minority view, and the decision was actually appealed and reversed. I think that videotaping the police in public—and perhaps even videotaping others in public—is protected by the First Amendment, not because it is speech, but because it gathers information that is important for speech. If you want to talk about what the police or others are doing in public, you need to be able to credibly report on it.  To do that, it’s not enough to just say, “Oh I saw them do this and that,” because people might say, “Well did you? I’m not sure you did. Maybe you misunderstood or you’re misreporting.” It’s very important to be able to say, “Well, I’ll show you the video so you can see for yourself.” That’s why videorecording is protected by the First Amendment—not because it is itself accompanied by a criticism of the police, but because it gathers information that is necessary for effective criticism, or praise, or just a general analysis of what’s being done.

Erich: And you see this as a significantly different issue from states or municipalities potentially mandating that police wear body cameras?

Eugene: Right, those two issues are quite different. They are related: Both involve capturing information for future use. But, even if the government mandates that the police wear cameras, the government might not disclose those recordings to the public; some state public records laws might require such disclosure and others might not, but the First Amendment wouldn’t require the government to do that. That’s why it’s important for citizens to be able to gather information themselves.

Also, when the government mandates police body cameras, this creates serious privacy issues—the cameras are on not just when the police officer is in a public place, but also when the police officer goes into people’s homes, for example. On the other hand, body cameras can be very important for gathering information and making sure that bad police officers are called out, fired, or deterred, and that good police officers are rewarded. So, I do think the argument about whether to mandate police body cameras is an important argument, but it is different from the argument about the right of the public to record police officers.

Erich: Another issue is whether press outlets or cameras ought to be allowed in courtrooms. Opponents argue that they can cause distractions for involved parties or risk offering unnecessary exposure to defendants or victims. Do you take a side in this debate?

Eugene: I don’t have much of a firm view on the subject. First Amendment rights are different in so-called “non-public forums,” government property that is not generally open for public speech. There is thus a good legal basis for potentially distinguishing between recording things on the street and recording things in courthouses. Speech in courtrooms is already heavily regulated. You can’t just say whatever you want to say in a courtroom. Unless you are a lawyer for the prosecution or the defense, you can’t speak at all, unless called as a witness. And when you are a lawyer, you are subject to many constraints—and rightly so—about what you can present within this.

But I’m a lot more interested in what is effective and what works and not just. Fortunately, we now have a lot of experience now with such video recordings of trials, a lot of evidence we can look at. My tentative reaction is that such recording should be allowed, but I have not looked closely enough at this experience to be sure.

Erich: You’ve spoken a lot about the issue of free speech on college campuses. But are there other places or institutions in American society, aside from college campuses, that are also stifling free speech, but they might not be getting as much attention as universities are?

Eugene: Well, it’s hard to say. I study free speech in a lot of different areas, and it’s hard to say which are more important than others. For instance, I’ve been studying recently court decisions ordering people not to speak out about their neighbors or about their exes or about local government officials. The orders say that the defendants can’t say anything, period. It’s not just that they are barred from saying libelous things or threatening things—they are barred from saying anything, period. There hasn’t been much focus on such orders, in large part, because they’re almost entirely at the trial level, largely because the defendants don’t have lawyers to appeal it. But such orders are quite clearly unconstitutional.

I’ve also long criticized certain applications of workplace harassment law. For example, there’s a decision a while back that says that simply wearing a shirt that has a Confederate flag on it might be something that can lead to legal liability under federal workplace harassment law because it creates a supposedly racially hostile environment. I think that’s wrong. I think that many employers might want to restrict that kind of speech, mostly in the interest of workplace harmony, but I think the court system’s suppressing speech because of its viewpoint or because of a message that some people might find racially, religiously, or sexually hostile is something that, I think, is unconstitutional.

There are a lot of issues out there, and I post something on my blog about free speech issues virtually every day. So there’s more going on than just the campus free speech issue.

Erich: And how pronounced is the difference between a government respect for free speech and if the government, or government-subsidized organizations or institutions, were to take active roles to advocate on behalf of free speech?

Eugene: Sure, absolutely. Let’s take the example of the university. The First Amendment has a duty not to suppress dissenting views, whether they are about affirmative action, equality of the sexes, abortion, or whatever else. But let’s say that the university finds that even without any suppression from the university, there isn’t any real debate on these issues–whether because students are apathetic or because some students are afraid of violence, or, more likely, of social ostracism.

I think it’s part of the university’s educational mission to ensure that students have some level of exposure to these controversies, because the bottom line is that America is split quite sharply on things such as abortion or affirmative action. So if it turns out that only views from one side on these issues are heard on college campuses, then that’s doing a disservice to the students; so universities should make sure that they put together programs that encourage free speech and debate.

Indeed, the universities should help make sure that those programs actually have the best speakers on both sides. I think if a student group at a university wants to invite Milo Yiannopoulos or some other polemicist, they have a First Amendment right to do that. But I don’t think it’s the best thing for public debate. Generally, I think it is better for universities to invite scholars, people who are focused on uncovering the truth and thinking about it in a fair-minded and thoughtful way. Thoughtless speech is constitutionally protected just as much as thoughtful speech, but universities should be trying to promote thoughtful speech. They have ample opportunity to do this by putting on lectures and debates, perhaps even in the dorms, just to make it as easy as possible for students to actually start engaging with these issues in a serious way.

Indeed, such debates are good for students on all sides of the issue. Let’s say, for instance, that somebody is solidly in favor of abortion rights. She feels very strongly about this, and she may well be right. But how can she learn to persuade anyone on the issue if she never even hears the other side of the argument? It’s best for students like that to hear the arguments from both sides and decide which arguments seem to be the most effective.

What’s more, even if one very firmly believes something, one ought to believe it based on real thinking—not just because that’s how one was brought up or just because that’s what feels really emotionally right to them. Maybe the person’s emotional reactions are completely correct, as many of our emotions are, but if one is honest with oneself, one needs to have real engagement with the other side. Students need to be able to honestly say, “I’ve heard the best views from the other side, and I still think my own view is correct.”

Erich: So you don’t see any betrayal of the libertarian premium on the hands-off approach if a state-funded university were to actively introduce ideas that run counter to the mainstream on campus? Is it almost anti-libertarian to use state schools, partially funded by taxpayer dollars, to say, promote a libertarian ideal, if that is indeed something that might need to happen in the interest of diversifying the range of thought on campus?

Eugene: Well, some hardcore libertarians would say, “There shouldn’t be any state-run universities.” Some might say there shouldn’t even be state funding supporting education in private universities—but if there is state funding, then at least there should still be private choice. It’s like with supermarkets: We don’t want to have government-run supermarkets; even if we want to provide food stamps to people, we provide them so that they are used in private supermarkets. That’s a perfectly plausible position.

But rightly or wrongly, it’s not the position that America has chosen. There are a lot of very serious and good publicly run universities, as well as private universities that get some degree of public support. So once we have that, the task of these public universities is education, and one important aspect of that is educating people about alternative positions and teaching them to listen to the best arguments on the other side.

Erich: I appreciate your time today, Professor Volokh. Thank you.

Eugene: My pleasure. All the best.

Erich J. Prince is a Co-founder and contributor at Merion West. Erich has written for a variety of publications including The Philadelphia Inquirer, the Hartford Courant, The News & Observer, and the Orlando Sentinel. His writing has been honored with two awards from the Columbia University School of Journalism. He studied political science at Yale University, completing his thesis on the history of polarization in the United States Congress. Contact Erich at erich@merionwest.com.