Volokh demolishes Feinstein in campus free speech hearing

Sen. Dianne Feinstein (D-Calif.) questioned Tuesday whether universities across the country should risk hosting controversial speakers if they have the potential to spark violent protests.

In a contentious exchange during the Senate Judiciary Committee’s hearing on free speech, the lawmaker suggested that it is problematic to expect universities to handle the security of controversial events given their limited financial resources.

“One of the problems that I have is that there is an expectation that the university handles it,” Feinstein said to a panel of seven invited witnesses.

“The handling of it, means that you have resources to be able to send and those resources know what to do. And particularly for the public university, and particularly for the University of California, there is a constant battle with the legislature over money. So the resources are not always what they might be,” she added.

Eugene Volokh, a distinguished professor of law at UCLA, attempted to answer Feinstein’s question by urging the local law enforcement to assist universities with protecting free speech that is threatened on campus.

“I would think that Berkeley police department would also be able and should be willing to lend police officers to help out,” Volokh said, referencing the wave of violent demonstrations at the University of California, Berkeley.

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“If we are in a position where our police departments are unable to protect free speech, whether it’s universities or otherwise, then yes, indeed, we are in a very bad position,” he added.

Feinstein then interrupted Volokh, pressing the educator to elaborate on whether the university must be prepared to handle every type of speaking event.

“Professor, let me just understand what you are saying. No matter who comes, no matter what disturbance, the university has to be prepared to handle it. It’s the problem for the university. That’s the argument you are making. You are making the argument that a speaker that might fulminate a big problem should never be refused?” she asked.

The pair then briefly discussed the meaning of “extraordinary circumstances” that may possibly justify a suspension of a scheduled free speech event.

Volokh, however, insisted that despite such rare exceptions, the government still maintains a presumptive responsibility to assist the university in protecting the First Amendment.

“It’s not just the university it’s the government. It’s the job of the government. I am not the big believer of large jobs for the government, but one important job of the government is to prevent violence and to prevent violence without suppressing free speech,” he contended.

At that point, the California lawmaker interrupted the professor again with an allusion to the Kent State massacre, a 1970 shooting in which the Ohio National Guard killed four college students who were protesting the Vietnam War.

“You don't think we learned a lesson at Kent State Way back when?” She asked.

In a subsequent exchange with Frederick Lawrence, CEO of the Phi Beta Kappa Society and a visiting professor at the Yale Law School, Feinstein doubled down on her inquiry.

“No matter how radical, offensive, biased, prejudiced, fascist the program is, you should find a way to accommodate it?” she asked.

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“I would say in response to that … if we are talking about the substance of the program—not the danger and credible threats, but the substance of the program—then yes,” Lawrence said, while adding that he would tell the potentially concerned donors and alumni to “trust my kids” to ask tough and pointed questions at the controversial event.

Visibly unsatisfied with the response, Feinstein reiterated that protection of “general welfare” should be just as important as the protection of the right to free expression.

“But here is the problem, it’s very often isn’t your kids that are the problem, it’s outsiders who come with a specific program to disturb and hurt candidly,” she contended.

“I think particularly in view of the divisions within this nation at this time which are extraordinary from my experience, I think we all have to protect the general welfare too. And I appreciate free speech … but it’s another thing to agitate, it’s another thing to foment, and it's another thing to attack.”

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