“Postergate” and the Return to Law at the Law School

Over the past few weeks, Harvard Law School has been embroiled in a debate about the validity of a set of speech claims, about the value of protest, and about the role of the school in policing debate. Many students have expressed deep concerns about the alleged “silencing” of speech occurring in Belinda Hall.
In our opinion, much of the worthy talk about the sanctity of free speech and exchange and the dangers that suppression of speech might bring—and the commentary branding Reclaim as a “speech-chilling” organization comparable to countries with “censorship boards”—largely misses a key point. Reclaim is not a country engaging in censorship. Not even close. Instead, it is an expressive association engaged in an expressive demonstration that occupies space for the purpose of its expression. And, so long as we as a community are exploring various lenses through which to understand what Reclaim is and what it has been doing, let’s actually discuss the doctrinal root of free speech within the United States: the First Amendment. We submit that if it were appropriate to review under the Supreme Court’s precedents whether Reclaim could be sanctioned for removing posters that attack Reclaim’s message (that is, assume we are in a hypothetical world in which the First Amendment does apply), First Amendment principles would likely demand that the issue be resolved in favor of Reclaim.

The key case—notwithstanding any normative misgivings the present authors might harbor about its reasoning or ultimate holding (which are substantial)—is Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston [GLIB], 515 U.S. 557 (1995). Hurley dealt with the South Boston Allied War Veterans Council’s refusal to allow GLIB to have a contingent in the Council’s privately organized St. Patrick’s Day parade. GLIB wished to march under their own banner in order to express pride as openly gay, lesbian, and bisexual people of Irish heritage, and in solidarity with a similar group attempting to march in the St. Patrick’s Day parade. Massachusetts law prohibited discrimination on the basis of sexual orientation, and GLIB sued for inclusion of their message in the parade. Note that individuals affiliated with GLIB were permitted to march in the parade in any contingent — what GLIB sued for specifically was the right to express their message of pride and solidarity. GLIB won in the Massachusetts courts but lost at the Supreme Court, which held that the Council’s right to exclude speakers based on their expressive message trumped anti-discrimination law.
The rule of Hurley might be stated as follows: my expressive event or assembly is my speech. I control the message my speech is meant to convey. This means that I control the messages communicated at my own expressive events and assemblies, and that no one can undercut my expressive message by forcing their own expressive message into my event — even in a public place. Correspondingly, and in order to facilitate my “autonomy to choose the content of [my] own message,” I have the right to exclude unsupportive messages from my own expressive events—and to be free from government (-like!) compulsion to do the opposite—lest such compulsion constitute “an order essentially requiring [an organizer] to alter the expressive content of their [event].” Incontrovertibly, ReclaimHLS is currently staging a protest in WCC for the purpose of expressing ideas. That makes it an expressive event. When Reclaim excludes an unsupportive message from their protest, apply Hurley. You do the math.
But those of us who’ve studied the First Amendment might wonder the following: so long as we are drawing on constitutional law, surely the WCC is most analogous to a public forum, and surely everyone is allowed to speak in a public forum. That’s certainly true as an abstract principle, but applied concretely, it does not confer any sort of right to speak in precisely the same spot and at the same time as another person or group—that is, the rules governing public fora afford no right to seed your message into the message of another expressive group occupying one part of a public forum. Hurley is clear on this: there, the expressive event in question in fact occurred in a public forum, and the Court still unanimously permitted exclusion of GLIB’s message from the parade. As we’ve already mentioned, ReclaimHLS’s occupation of the WCC lounge is an expressive event. Reclaim is currently using the full lounge space—including the walls—as a means of communicating its message of racial equality. Meanwhile, the vast majority of the public forum–like space that is the WCC and accompanying outdoor patios remains completely unoccupied. Anyone who wishes to express disagreement with ReclaimHLS’s message may step one foot out of the lounge in any direction and proceed to express themselves ad nauseum—just like those excluded from the parade in Hurley could presumably have expressed their message on the sidewalk alongside the parade, subject to applicable garden-variety (and content-neutral) time, place, and manner restrictions.
Nor does the duration of ReclaimHLS’s protest have any bearing on the issue. First of all, rules about duration simply aren’t in Hurley, and that makes sense, since the complaint that ReclaimHLS has been protesting too long just boils down to a complaint that ReclaimHLS expresses itself too much and too continuously—hardly the preferred position of one concerned to maximize expression. Secondly, the duration of ReclaimHLS’s speech imposes no burden on a hypothetical dissenter wishing to express her own message; she may feel free to express whatever she likes for as long as she likes in spaces not already enlisted by others for an actively expressive purpose. In sum, dissenters can have their speech in the public forum, and ReclaimHLS gets to have their (unencumbered) speech too.
The reality is that much of the rhetoric around free speech is as untethered from First Amendment doctrine as U.S. society is from ideals of racial equality. If folks who disapprove of LGBTQ communities can keep those communities’ messages out of their speech, then certainly ReclaimHLS can preserve the integrity of its message of racial justice by excluding from it the messages of those who express fondness for the rather less egalitarian status quo.
By invoking rhetorical free speech to punish protesters who would not want the messages posted by others burdening and diluting their own message at their own event, conservatives and liberals alike provide cover for suppression of the ideas that students of color aim to convey. Indeed, the tragic irony of our recent free speech panic is that it may end up producing precisely what it purports to fear—viewpoint-based suppression of speech.

Kendra Albert and Chike Croslin are 3Ls at Harvard Law School.