Will Columbia’s Law School Dean Learn the Law of Free Speech?

Until recently, I was proud to have been an adjunct professor at Columbia’s Law School for more than 20 years. My one-day-a-week seminar was titled “Religious Minorities in Supreme Court Litigation.” In class discussions, written exercises and other assignments, students covered recent Supreme Court briefs, oral arguments and decisions.

Gay, along with the other presidents who appeared at the hearing, was apparently not told of the Supreme Court’s unanimous decision that the First Amendment’s shield for free speech did not protect harassing utterances.

The testimony of Claudine Gay, former president of Harvard, reportedly prepared by lawyers at the distinguished Washington law firm Wilmer Cutler, astounded me. Gay, along with the other university presidents who appeared at a hearing of a House committee on Dec. 5, was apparently not told of the Supreme Court’s unanimous agreement in Counterman v. Colorado (600 U.S. 66-2023), decided a few months before her public appearance, that the First Amendment’s shield for free speech did not protect harassing utterances. She and the two other intellectual giants replied to the sharp questions of Rep. Elise Stefanik (R-N.Y.) by asserting that calls for genocide of Jews, even if harassing, were protected on their campuses so long as they did not cross the line into conduct. The Supreme Court’s opinions in Counterman uniformly rejected such a reading of the First Amendment.

Former dean David Schizer of Columbia Law School, whose term coincided with seven years of my participation on the law school faculty (although I must confess that I have no recollection of ever meeting him) sat next to the university’s president, Minouche Shafik, at the witness table for her appearance on April 17.

Schizer’s introductory statement at the House hearing was appalling, deserving a failing grade in his school’s constitutional law course. He declared that on Columbia’s campus, “the right to protest has to be protected,” as if protest on grounds owned by Columbia — a private, not a government-owned or run, institution — is public speech shielded by the First Amendment guarantee against “abridging the freedom of speech.”

Schizer should know that protest in a “public forum” is legally and constitutionally very different from protest on private premises. I may legally control what is said in my home and exclude anyone from my private premises if he or she says anything that offends my family or other guests. Free speech does not extend to declarations that the owner of the premises chooses to forbid for any reason—or, for that matter, for no reason at all.

Schizer listed for the House Committee four areas that his remedial committee on antisemitism identified. The first, he said, was “better rules about where and when protests can be held.” Only “where and when?” As if all protests were mandatory and the only restrictions the Columbia administration might impose were on their location and timing.

Would Columbia permit a “protest” calling for a return to slavery of all blacks? What if a “protest” is called on the Columbia campus to repeal the 19th Amendment and again deny suffrage to females?

The First Amendment might entitle a provocateur to carry a sign on a public street or deliver an address with either of these messages in a town square. But the owner of premises, even if they are open to the public for certain purposes, could not be compelled to allow this opinion to be expressed on his property.

This is not a dubious constitutional proposition. In 1972, sustaining the right of a shopping center owner to bar the distribution of handbills protesting the war in Vietnam, the Supreme Court “vigorously and forthrightly” rejected “the assumption that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please.” (Lloyd Corp. v. Tanner, 407 U.S. 551, 568, 1972.)

Schizer is simply wrong in declaring that “free expression and academic freedom” demand that all “protests” be permitted on campus so long as they “don’t disrupt classes and other activities.” 

Schizer is simply wrong in declaring that “free expression and academic freedom” demand that all “protests” be permitted on campus — no matter how they affect portions of Columbia’s invited student population — so long as they “don’t disrupt classes and other activities.” Columbia has always had the legal right and moral obligation to decide that certain opinions, even if called “protests” to energize and inflame its adherents, should not be tolerated.

Nathan Lewin is a Washington, D.C., attorney with a Supreme Court practice who has taught at leading national law schools including Harvard, Columbia, Georgetown and the University of Chicago.