Jonathan Turley Is So, So Close To Figuring Out Free Speech... And Yet So, So Far Away
The constitutional law dilettante laments USC canceling its graduation, but doesn't quite grasp the basic problem.
(Photo by Bonnie Cash-Pool/Getty Images)
This morning, Turley took a break from sitting outside Fox News headquarters with his “Will say anything about Hunter Biden for food” sign to highlight the grave free speech concerns implicated by the University of Southern California’s recent decision to cancel its general commencement ceremony.
Or, more accurately, he botched the actual grave free speech concerns while offering up some vague pablum about the “mob.” But in this house, we believe in partial credit!
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The sad situation at USC all started when the school realized that its valedictorian, Asna Tabassum, was both a Muslim woman and a minor in genocide studies, prompting the school to freak out that she might use the speech to address the war in Gaza. So the school first barred its valedictorian from speaking. When the decision to revoke Tabassum’s earned spot in the ceremony drew scrutiny as blatantly discriminatory, the school canceled its other invited speakers, testing its “it can’t be viewpoint discrimination if we cancel all the speakers, right?” defense. It’s a serious question for the school’s lawyers since, due to a quirk of California law, the standards of the First Amendment fully applies to private universities, robbing USC of a lot of the latitude private schools lean on when trying to squelch students. Finally, having whipped up general outrage over its botched handling of the event, the school nixed the whole ceremony.
Meaning the class of 2024 will end its college journey the same way it ended its time in high school as the class of 2020 — with graduation canceled at the last minute.
The problem of violent protests and threats on campus is not solved by removing the potential victims. To yield this ground is to surrender control over not just the campus but the academic operations of the school. Higher education has to aspire to be more than a mere mobocracy where threats not logic prevail.
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This is correct! Assuming he’s denouncing the school’s initial decision to cancel the valedictory speech. Predictably and unfortunately, Turley has no apparent qualms with that decision, focusing his disdain on the school’s decision to cancel the ceremony over fear of the “mob,” even though said mob wouldn’t be there if the school complied with longstanding custom and just let the woman speak in the first place.
Turley never uses the phrase heckler’s veto in the piece because, while he likes to toss it around a lot, he doesn’t understand it.
Which is a shame because USC’s treatment of Tabassum is what the heckler’s veto is all about. As a legal concept, the heckler’s veto is the situation where authorities stop a speaker, citing the risk that the speaker will incite some sort of dangerous response. This is a First Amendment violation because governments can’t use hypothetical third parties as a shield to engage in prior restraint.
By contrast, Turley and his fellow travelers deploy the phrase to mean “people heckling a speaker.” The rhetorical trick is to expand the narrow legal concept of the “heckler’s veto” — which is a constitutional violation — to cover “protesting a speaker” — which is not a constitutional violation — in the hopes that blurring the lines will carry the constitutional baggage of the former onto the latter.
Turley gets so very close to describing the contours of a heckler’s veto but he just can’t get there because he’s hung up on his priors:
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The University of Southern California (USC) is under fire this week after announcing that it had a solution to the possible pro-Palestinian protests at the graduation: it cancelled the graduation. It is both enabling and irresponsible. Rather than protect students and their families at this important and well-earned event in their lives, the university is yielding to the mob. It is a feckless and feeble response to what should have been an easy decision for any administrator.
It’s not “yielding to the mob” when there aren’t any actual or necessarily even credible threats. “Protect[ing] students and their families” sounds ominous except we’re talking about a hypothetical risk that some students start picketing the event, which is about as threatening as USC’s defense under Lincoln Riley.
Which, unintentionally, provides an even better distillation of the heckler’s veto in action. Because the heckler’s veto in practice was not, generally speaking, a response to any actual threat of anti-speaker violence as much as the government citing flimsy “safety” concerns to justify prior restraint. White Southern sheriffs weren’t really worried that the Klan members — who they almost certainly hung out with on Wednesday nights — were going to engage in mass violence. But they thought by saying they were worried about the racists they could shut down civil rights events without drawing the ire of the courts.
You’d think Turley would remember this disgraceful tactic of the civil rights era, but he literally didn’t remember that crooked cops used to arrest Martin Luther King Jr. or who was vice president in 2018, so maybe we shouldn’t rely on his grasp of history.
It’s a sham intended to skirt free speech obligations. It’s a school banning a speaker, citing the vague trouble her words might trigger from the audience, and then later canceling the whole event over fears that a protest might break out.
So when USC’s Provost tried to shrug off the decision to silence the valedictorian by saying the decision “was aimed at protecting campus security and ‘had nothing to do with free speech,’” he joined a long and ignominious tradition of bad faith actors using “security” to enforce decisions that have everything to do with free speech.
A tradition that Turley either doesn’t understand or just doesn’t want you to understand.
Problem Solved? USC Cancels Graduation to Avoid Pro-Palestinian Protesters [JonathanTurley.org]
Earlier: ‘Legal Experts’ Need To Stop Deliberately Misleading People About The First Amendment
Shut Up And Stop Heckle Vetoing Me, Law School Prof Yells At Clouds
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
