Unlike many colleagues, I do think there is a principled defense of Reclaim’s actions with respect to posters in Belinda Hall, one which I find persuasive, though with some reservations, which I will explain. The defense applies even to what many of the faculty seems to see as the “red line” of taking down antagonistic posters in the occupied space, and a fortiori to moving them to another space. I don’t think it is coherent to frame the issue as whether (in one colleague’s phrase) “acceptance of this situation by us, in what I take it we still regard as a public space of the law school, could be explained consistently with free-speech and common-membership principles for our school and university to which I’d assume we are all committed.”
As I understand it, the occupants do not regard the space as “public” in the same way that many colleagues, do. They understand themselves to have “occupied” it. This means different things to different participants in our discussions. One meaning is a “nationalist” one that claims that the school’s property right to exclude minority protesters is morally illegitimate because the school is complicit, at least, in an overall racial regime that is morally illegitimate. This doesn’t at all mean that any particular action of occupiers is ok, just that nothing is settled by the appeal to the notion of “public space.” In the nationalist version of occupation, those who have asserted this claim of moral right also claim to be entitled to regulate the space according to their own democratic procedures. This claim is parallel to “our claim” as HLS to regulate the space.
“Our claim” includes all kind of rules about posting, and includes procedures for taking down posters that violate those rules. The fact that space at HLS is in some sense public does not at all at all mean that students or faculty can post anything they want anywhere they want. The Reclaim claim to a similar kind of occupier regulatory jurisdiction may strike you as absurd or evil, but it is “principled” in what I think is the common sense of the term.
I have a lot of sympathy with black nationalist ideas, and always have, so long as they aren’t turned into claims of radical autonomy, without consideration of consequences for “others,” or reduce every argument to racism, as has sometimes happened to the discredit of the nationalist cause.
But there is a second quite different argument in defense of Reclaim’s actions that I regard as also “principled” in the usual sense. It is a basic common law idea that reliance can be both a moral and a legal basis for a claim to rights of some kind asserted against an undisputed prior title holder. Deciding whether there was reliance, and whether it was reasonable, and what should follow from reasonable reliance, is the juristic work to which many of us in different contexts have been devoted. Cf. Henry Hart’s astonishing article about the sit-down strikes of the 1930’s, denying
I would propose that the school’s response to the occupation up to now has created a reasonable reliance interest: an expectation of some accommodation of occupiers’ claims, as opposed to insistence that the space remains perfectly “public.” Of course, there is no definition up to now of what that might mean in the case of a diabolically clever provocation of the type that has occurred.
Reclaim claims that Belinda is a space appropriated to their use as a marginalized minority of minority dissidents. There are demanding that the school grant them a space similar to what the obviously political journals and recognized student political organizations have—not just in terms of recognition and money but also in terms of officially allocated real estate somewhere in the school. Their action seems to me defensible “in principle” on the ground that a reasonable interpretation of the toleration of the occupation to date grounds a claim not to have to share the space with posters that attack the legitimacy of their whole enterprise.
However, this is all highly debatable. It might be better for example to recognize that in spite of reliance there is an obvious “public” aspect of Belinda, by reserving a space within it for posters attacking it, and permitting the occupiers to put up barriers, sheets or whatever, so they wouldn’t have to look at them. In any case, the notion that the students’ action is in some sense beyond the pale, so that no one (even yours truly) could defend it, is wrong.
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