By Jay Weiser
[Note: This article first appeared in the Wall Street Journal, October 1, 2017]
A brawl broke out in an “Empathy Tent” at the University of California, Berkeley last week, marking the official start of college riot season. Last week Attorney General Jeff Sessions braved protesters at Georgetown Law Center, where he promised to intervene in campus free-speech cases and urged students and universities to “stand up against those who would silence free expression by violence or other means.” The targets of suppression have ways to hold colleges and rioters to account using civil-rights statutes and common-law torts.
Administrators often “coddle” and “encourage” censorship, Mr. Sessions observed. That’s nothing new. After the Civil War, white students at what is now Washington and Lee University in Virginia attacked blacks associated with the Freedmen’s Bureau. The college president, Robert E. Lee, offered pieties and looked the other way. In response to similar incidents, Congress safeguarded civil rights with legislation known as anti-Ku Klux Klan acts.
Public universities are subject to the full sweep of the anti-KKK laws, as well as more recent civil-rights statutes. At San Francisco State University, Jewish students have filed suit under Section 1983 of the federal civil-rights law, alleging disruption of their events violates the First Amendment and the Equal Protection Clause of the 14th Amendment. The First Amendment requires public universities to treat speech neutrally, regardless of the message. Administrators may not tell police to stand down in the face of a “heckler’s veto.”
In 2013 at New York’s University at Buffalo, police let counter-protesters shut down a pro-life demonstration. This June the university settled, paying the plaintiffs’ attorney fees and promising to refrain from viewpoint discrimination in the future.
But universities are responsible only for taking reasonable precautions. A target of last semester’s antispeech riots, Bret Weinstein, was mobbed and hounded out of Evergreen State College after refusing to comply with a college-sponsored “Day of Absence” in which white people were “asked” to stay off campus. While Mr. Weinstein claimed that Evergreen State violated his right of free speech, the college contended that it acted reasonably. Violent antispeech protests were still novel and Mr. Weinstein was physically threatened in class just once. He and his wife, also an Evergreen professor, settled their claim for $500,000 and an agreement to resign. Public universities now have notice of their duty to provide security, which UC Berkeley and the University of Utah just fulfilled for conservative writer Ben Shapiro.
Private universities have no First Amendment obligation to provide a forum for speech. But many riots purport to attack white “supremacy” or “privilege,” and if private universities act with deliberate indifference to racially motivated attacks, they may be liable to students or speakers. Colleges are subject to antidiscrimination statutes such as Section 1981, an anti-KKK act that would cover student and speaker contract rights. If they accept federal funding—and all but a handful do—they are also subject to Title VI of the Civil Rights Act of 1964.
Institutions are not the only prospective defendants. Campus rioters themselves may be liable under Section 1985(3), which covers private conspiracies and targets those who, like masked Antifa attackers, go in disguise—“a common tactic also used by the detestable Ku Klux Klan,” as Mr. Sessions noted. The statute applies most clearly to racially motivated physical attacks or efforts to exclude persons. Evergreen State is a classic case: After disrupting Mr. Weinstein’s class, students detained the college president and apparently posted photos of themselves brandishing baseball bats on Facebook. Some faculty members demanded disciplinary action against Mr. Weinstein and later assembled with masked Antifa members who attacked counterprotesters.
Section 1985(3) may also apply to racially motivated “no-platforming”—group intimidation to suppress speakers. Middlebury College demonstrators violently disrupted social scientist Charles Murray’s talk, pursued him, and physically attacked a Middlebury professor, giving her a concussion. Even without violence, Section 1985(3) makes protesters liable for racially motivated conspiracies at public universities and perhaps private ones. In contrast to the usual American rule, prevailing plaintiffs under civil-rights statutes are eligible for attorneys’ fees.
At both public and private universities, regardless of racial or religious motivation, state tort law allows people who are physically attacked, threatened or detained to bring civil lawsuits for damages. Businesses suffering property damage, such as the $100,000 attributed to February’s protests against Milo Yiannopoulos at Berkeley, can sue, too. Tort law can also make antispeech rioters liable for the loss of public-speaking contracts, as when DePaul University barred Mr. Shapiro because his appearances had been disrupted elsewhere.
While Section 1985(3) covers only conspiracies, state common law covers everyone who acts in concert to deprive victims of their rights, whether or not they conspired beforehand. Many college riots are planned in advance, but some participants just show up, like the Berkeley undergraduate who told Newsweek he wanted the safety of an anonymous mob. Liability for intentional torts is joint and several: Each member of the group is responsible for all damages caused by any member. Unlike garden-variety street thugs, antispeech rioters often have substantial assets and potential earnings: 23% of Middlebury students come from households earning more than $630,000 a year. Plaintiffs can subpoena colleges to expose the perpetrators, unsealing disciplinary information that would otherwise be confidential under the Family Educational Rights and Privacy Act. And although criminal convictions require a “beyond a reasonable doubt” standard, civil cases apply the easier “preponderance of the evidence” standard.
Nonviolent, nondisruptive protests are crucial to American civic life, and conspiracy and action-in-concert lawsuits cannot suppress protesters’ right of free expression. In NAACP v. Claiborne Hardware Co. (1982), the U.S. Supreme Court struck down a conspiracy lawsuit by white merchants against a boycott. The justices held 8-0 that the defendants were merely exercising their First Amendment rights.
Students retain the right to advocate illegal acts, such as the demands for segregated facilities at several colleges. “Cultural appropriation” advocacy, which seeks to enforce Jim Crow-style identity etiquette, is also protected, including the Yale Halloween protests over whether blondes could costume themselves as Disney’s Chinese heroine Mulan. But success in obtaining segregated facilities or cultural-appropriation penalties (such as Bowdoin College’s reported sombrero sanctions) could result in Section 1985(3) liability for students and colleges. One civil-rights-era case held theater company managers potentially liable for conspiring with the local sheriff to enforce segregation. Police could also be liable under a related statute, Section 1986, which imposes a duty on law-enforcement agents to prevent Section 1985(3) conspiracies.
Like homecoming, political intimidation is a college tradition. With many college administrators seemingly seeking an empty plinth for one of those Robert E. Lee statues coming down elsewhere, civil lawsuits may save free speech from becoming a lost cause.
Mr. Weiser is an Associate Professor of Law at Baruch College.