There is an interesting ruling this week out of New York where a federal court has ruled in favor of a conservative student group alleging that the State University of New York at Binghamton has engaged in a pattern of censorship of conservative speakers and events. We previously discussed the controversy. What makes this lawsuit by the Young America’s Foundation particularly significant is the allegation that SUNY-Binghamton barred events by allowing protesters to shut them down. Lawrence Khan, a U.S. district judge denied SUNY Binghamton’s motion to dismiss. I discuss this type of failure to protect public forums in my forthcoming law review article, Jonathan Turley, Harm and Hegemony: The Decline of Free Speech in the United States, Harvard Journal of Law and Public Policy (forthcoming).

In 2019, conservative organizations had hosted an event with economist Art Laffer. The event followed a familiar pattern. The university imposed a series of conditions on the sponsoring groups and threatened to shutdown the event if there were serious protests. It then did little to maintain order and promptly removed Laffer within minutes of the event when protesters disrupted the event.

The lawsuit does raise an important question over the failure of universities to suspend or expel students (or fire faculty) who prevent others speaking or listening to opposing viewpoints.  The right to protest speeches by figures like Laffer is also protected. However, entering halls or classroom to shut down speakers is itself a denial of free speech and academic freedom.

This has been an issue of contention with some academics who believe that free speech includes the right to silence others.  Berkeley has been the focus of much concern over the use of a heckler’s veto on our campuses as violent protesters have succeeded in silencing speakers, even including a few speakers like an ACLU official.  Both students and some faculty have maintained the position that they have a right to silence those with whom they disagree and even student newspapers have declared opposing speech to be outside of the protections of free speech.  At another University of California campus, professors actually rallied around a professor who physically assaulted pro-life advocates and tore down their display.  In the meantime, academics and deans have said that there is no free speech protection for offensive or “disingenuous” speech.  CUNY Law Dean Mary Lu Bilek showed how far this trend has gone. When conservative law professor Josh Blackman was stopped from speaking about “the importance of free speech,”  Bilek insisted that disrupting the speech on free speech was free speech. (Bilek later cancelled herself and resigned after she made a single analogy to acting like a “slaveholder” as a self-criticism for failing to achieve equity and reparations for black faculty and students).

A few years ago, I debated NYU Professor Jeremy Waldron who is a leading voice for speech codes. Waldron insisted that shutting down speakers through heckling is a form of free speech. I disagree. It is the antithesis of free speech and the failure of schools to protect the exercise of free speech is the antithesis of higher education.

This is why the ruling in New York is so important. The type of passive-aggressive response of SUNY is familiar to many on campuses today. The university made clear that if protests erupted, they would remove the speaker. They then not only did little to stop the disruption but took steps that seemingly made such disruption more likely.

Judge Khan wrote:

“By removing the speaker from the lecture hall instead of the unruly protesters, State Defendants were not only plausibly violating this basic constitutional right, but also preventing fruitful discussion—not the role of an enlightened university. See also id., 274 U.S. at 24 Case 3:20-cv-00822-LEK-ML Document 70 Filed 08/24/21 Page 24 of 33 375 (Brandeis, J., concurring) (“discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.”)”

What was particularly important about the ruling is that the Second Circuit recently made it more difficult for students to litigate such claims over supervisory. In a 1983 action, a plaintiff previously could establish a claim in one of five ways:

“(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [the plaintiffs] by failing to act on information indicating that unconstitutional acts were occurring.”

Colon v. Coughlin, 58 F.3d 865, 873 (2d. Cir. 1995). However, the Second Circuit recently made it more difficult to establish supervisor liability in Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir. 2020). The court held “there is no special rule for supervisory liability,” and “a plaintiff must plead and prove ‘that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Id. at 618 (quoting Iqbal, 556 U.S. at 676). Specifically, Tangreti has supplanted the Colon factors and particularly the key third factor (“the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom”). See Smith v. Westchester County, No. 19-CV-03605 (NSR), 2021 WL 2856515, at *6 n.4 (S.D.N.Y. July 7, 2021).

The Colon factors were an avenue to address this common form of speech suppression in using third parties. We have seen college officials actively encouraging such protests. However, most of these cases involve passivity in the face of mob’s using the “heckler’s veto” to stop events with bullhorns or rushing stages.

Nevertheless, the court found sufficient action in this case to reject the summary motion for dismissal. The YAF will now be able to pursue discovery with the university, a process that could shed light on whether the university counted on protesters to stop the event.