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Costing Out Campus Speaker Restrictions: Response to Frederick Schauer's "The Hostile Audience Revisited"

Goldberg, Suzanne B.

Frederick Schauer gently points out the challenging, and arguably absurd, situation we find ourselves in today, where a commitment to free expression has enabled provocateurs not only to spew hostile messages into our communities but also to divert extraordinary levels of resources to protect their messaging.

Although the psychological costs these speakers impose may be difficult to measure, the financial costs are increasingly clear—and increasingly high in an era when firearms are widely available and open carry is claimed, by some, as an expressive act. Even on campuses and in cities that forbid firearms at protests, the costs associated with safety management along with the attention required by dozens and sometimes hundreds of staff are beyond substantial, as Schauer points out.

In fact, there are certainly schools that simply lack the funds to protect yet another vituperative speaker. What then? The remainder of this comment will pick up where Schauer leaves off and explore, preliminarily and tentatively, several options. To be clear, I do not offer or endorse any of these as a policy recommendation. I also want to be clear, again, that I offer these thoughts in my personal capacity and not in connection with any aspect of Columbia University’s policies. Each option presents serious difficulties, as I note below. Each may also be, in some respects, in tension with modern First Amendment jurisprudence and the free expression commitments made by many higher education institutions to which the First Amendment does not apply. And yet, as Schauer suggests, we may do ourselves a disservice if we do not take this conversation some steps further. These ideas are intended as a prompt for such conversation.

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Law
Published Here
March 6, 2020