Politics, Free Speech, and the Provocateur’s Privilege

So this is going to be another blog post on free speech and I apologize in advance for walking down this well worn trail. But I have to address the elephant in the room when it comes to free speech and college campuses. Free speech is not free! As a matter of fact it can be very expensive. We have seen all of the stories. At the University of Florida in the Fall of 2017 officials spent over $500,000 to provide adequate security for invited speaker Richard Spencer. A speaker, it should be noted, who was not invited by the university but by a student organization. The University of California – Berkeley spent over $2.5 million on security for various speakers in 2017. When I was the director of the Office of Student Involvement at the University of Central Florida we routinely spent tens of thousands of dollars for various events where public safety and discourse had to be simultaneously upheld. 

This requirement to provide an effective amount of security and support for speakers, even if not invited by the university, stems from a supreme court decision known as Forsyth decision. This decision set the general perimeters that in general local government agencies (of which public universities are) cannot charge speakers to use their spaces if those spaces are open to the public. This decision was designed to end what has come to be known as “the hecklers veto” or the act that if a group (in this case college students) yell loud enough they will be able to influence the decision of the university to restrict access to these public spaces in the name of public safety or levy costs on the speaker to provide security. Both of these things are generally frowned upon.

However, what this decision has effectively done is create what the Knight First Amendment Institute at Columbia University calls; the “Provocateur’s Privilege”. This privilege works like this – a controversial speaker is invited to campus, they know their speech will amplify messages seen as incendiary, so they intentionally schedule speeches in locations where the local government agency will need to spend money to provide for the public safety. The privilege is executed in two ways;

  1. The speaker is seen as legitimized because they have an infrastructure placed around them to ensure the speech happens under most of the conditions they want. This includes removing hecklers based on the arbitrary standard of civil discourse or disruption.
  2. The protesting students and staff do not have equal access to these resources because they are ironically identified as the provocateurs because they have chosen to raise their voice and protest the speaker.

Essentially this creates an imbalance and unequal access to free speech where the voices of protesters are dampened and the voice of the provocateur is seen as the more mainstream position. This privilege has been amplified in recent months as over two dozen states have passed “freedom of speech” laws that further neuter the protester by imposing punitive punishments for protesters who use their heckler’s veto. In Florida it could result in financial penalties. For universities this becomes even more strange because now conduct boards have to decide if a protesting student found “guilty” of disruption is also in violation of the code of conduct. Rinse. Wash. Repeat.

All of this weighs heavily on the institutions of higher education so much so that recently colleges have found an odd ally in the Koch Brothers. Just this week they have announced their investment of time and resources in fighting these draconian policies and laws interfering with a university’s oversight of the conditions of speech and discourse on campus. Here’s why – for the VAST majority of campuses free speech is never or very rarely an issue. Every day university administrators negotiate and regulate controversial events with little fanfare and lots of level headed direction. As administrators we  meet with students, negotiate protest areas to ensure safety, and bring folks together to discuss their differences. This results in millions of events each year which do not make the news and silently further civil discourse on their own.

Look, can students get a little too excited and create dramatic situations where universities must make unpopular decisions? Of course. that is what makes colleges great. Students are passionate, they want to be heard and if we did not have rowdy protests then many of the social movements of the past 100 years would have never happened. Students have been using their hecklers veto for decades and it seems its only now their reputation has gone from passionate to snowflakes. And provocateurs have gone from odd and maligned to seen as some champion of the constitution.

And that is what happens when these things get politicized.  Free speech now is seen as the provocateur and the tool of the establishment and the heckler is the tool of the resistance.  When, in fact, they are both provocateur and heckler all at once. It’s just one side has the protections and the other side is demonized.

So, what to do? The short answer, its time for politicians and the media to just go home. leave higher education alone. Overall, we were getting this right for decades, your involvement has only made things much worse. Here is where I espouse a conservative corner stone. College campuses are often like the economy, the more you regulate it, the worse it performs. While some general rules and regulations are needed for setting the ground rules if you over regulate then you stifle innovation and evolution.

Look, the kids are alright. Let them protest and let speakers speak but that does not mean they should be protected from being confronted. And let universities figure these things out. Critical thinking is kind of what we do, let us do our job and free speech will take care of itself.

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