The ASA Should De-Recognize Groups that Deliberately Violate MIT’s Content-Neutral Policies
Even a laudably broad commitment to free speech would not shield against the consequences of violating the ASA’s bylaws
MIT has certainly had a notable series of controversial events recently regarding free speech, from the rash cancellation of Professor Dorian Abbot’s EAPS lecture in 2021, to the “problematic postering” incident earlier this year, to the set of provocative speakers invited this term by the MIT Students for Open Inquiry group. Out of the first of these controversies emerged the MIT Free Speech Alliance, which advocates for expanded free speech protections at MIT (and of which I am a proud member). Subsequently, MIT adopted the MIT Statement on Freedom of Expression and Academic Freedom, which is comparable to the famous Chicago Principles in formalizing freedom of speech and freedom of expression rights on campus. And while MIT is a private university and, hence, is not technically held to the same legal standard that public universities are held to in regard to First Amendment protections, I certainly hope that MIT’s free speech policies would be as expansive as those enshrined under the First Amendment.
Recent events, particularly the disruptive protests held by the MIT Coalition Against Apartheid (CAA), have cast an even brighter light on MIT’s free speech policies, to a far greater extent than prior controversies did. Indeed, the two recent opinion pieces in The Tech last month discussing these events both pointed to the importance of free speech on campus.
As a starting point, it is worth noting the value in not excluding “hate speech” from standard free speech protections.
My first real exposure to this concept was in 17.035 (aka 21H.181), where Harvey Silverglate was invited to speak to our class one day. Mr. Silverglate is one of the co-founders of the Foundation for Individual Rights and Expression (FIRE), which is one of the leading advocacy groups for free speech protections on college campuses across the United States. During our conversation with him, one of my classmates raised a hypothetical: What about students who advocate in support of hate groups or terrorist organizations (say, a local chapter of the KKK or ISIS)? Mr. Silverglate answered that those students still nonetheless had the right to free speech on campus. This answer, of course, stunned me. “This is protected speech?? Is he crazy?!” I surely thought.
However, after hearing Mr. Silverglate’s explanation for his stance, along with thinking more deeply on this issue myself, I came to realize that there may indeed be rational reasons for “hate speech” to be protected as free speech.
Firstly, there is always the concern of speech regulations potentially devolving into a “slippery slope.” After all, “hate speech” is already a nebulous term, so it stands to reason that it could potentially be expanded and warped further and further over time, until it encompasses a broad swath of all kinds of speech. An obvious counter to this “slippery slope” argument is that it is merely a logical fallacy, and that the arguer should simply step off the “slippery slope.” In an ideal world, this could be the case; unfortunately, history suggests otherwise. In fact, these types of regulations tend to backfire, hurting the very people they ostensibly aim to protect.
Secondly, due to the nebulous nature of “hate speech,” there is a strong potential for speech regulations to be enforced in a biased manner, in which a double standard applies depending on the content of the speech. To those who doubt this will occur, I would simply point to the present situation, in which it seems to unfortunately be an all-too-common occurrence to see someone who previously was very much in favor of free speech restrictions when it came to certain speech content suddenly discover the importance of free speech protections when it comes to other speech content, or vice versa.
Finally, there is the reason that Mr. Silverglate provided for his view in my 17.035 class: He would want to know who the KKK or ISIS supporter in the room is, if only to know not to turn his back to them. When we heard this, my classmates and I chuckled at how absurdly, yet obviously, true this was. Yes, it can be beyond painful to find out that members of your community hold hateful views; however, surely it is better, if only for your personal safety, to know *who* these people are, so that you can react accordingly.
Of course, the above three points do not mean there is no cost whatsoever associated with allowing “hate speech.” I personally have experienced the costs of this myself, whether it was when a passing motorist in the Bay Area shouted at me and my other Asian-American friends to “go back to your country,” or when a deranged bus rider in DC lobbed disparaging remarks about my ethnicity at me. These incidents were certainly disgusting to experience, even if I believe they nonetheless involved protected speech. And obviously, these costs can increase further to the extent that such speech grows more severe, more pervasive, or more offensive. So intuitively, there must be some line at which these costs ultimately outweigh the benefits of permissive speech policies.
The Supreme Court has established that harassment that “is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school” crosses a line beyond standard free speech protections. This standard makes sense, as it ensures speech is protected up until the point at which it begins to seriously interfere with the ability of our fellow classmates to enjoy the benefits of attending our great school.
I have not been to campus recently, so I cannot personally attest to the current atmosphere here. However, to the extent that any students have been intimidated by rhetoric on campus to a sufficient degree such that, e.g., they are legitimately fearful to venture to classes, and this rhetoric has been “severe, pervasive, and objectively offensive,” then clearly this line would have been crossed. Such rhetoric also clearly would not necessarily need to be aimed directly at those individuals, as long as it satisfied that three-pronged test. To explicitly use one example brought up during the hearing held by the House Committee on Education and the Workforce on recent events, calls for genocide presumably satisfy both the “severe” and “objectively offensive” prongs, simply by their very nature. So, to the extent these calls were also “pervasive” (e.g., being chanted in back-to-back protests, or being repeated in locations across campus), such that the affected students could not effectively avoid this speech while going about their lives, then this rhetoric would no longer be protected speech.
Now, my understanding, based on communication from the MIT administration, is that the Committee on Discipline (“COD”) is currently investigating individuals against whom complaints in this matter have been filed. Firstly, in light of recent events, it should be reiterated that the COD must investigate these complaints. Any attempt by the administration to delay, disrupt, or otherwise interfere in proceedings would be not only deeply wrong-headed and immoral, but also insulting and injurious to all the members of our community who have filed complaints. Moreover, I strongly urge the COD to provide due process to all those it investigates and to ultimately pursue proper sanctions, up to and potentially including expulsion, against all those, and only those, who crossed this line from protected “hate speech” to unprotected “severe, pervasive, and objectively offensive” harassment aimed against other members of our community, or those who violated MIT’s content-neutral “time, place, and manner” policies (discussed further below).
Finally, even to the extent that “hateful” speech or other extreme rhetoric is lawfully protected, and rightfully so, by no means does that imply such speech should be accepted as is. If anything, the opposite is true: this sick, vile sludge should frequently and consistently be called out for what it is. So, let me be clear here and unambiguously state that:
Assaulting another human being on the basis of race, ethnicity, or religion is repugnant.
Finding glee in the suffering of another human being is beyond perverse.
Calling for genocide is utterly evil.
No ifs, ands, or buts. For friend or foe, for a neighbor or a stranger, I will always stick to my convictions on this matter. Ultimately, refusing or ignoring to call out this speech will only lead to rampant de-humanization. And, absent a widespread collective understanding of our shared humanity, I fear that we will all spiral further and further down into an abyss of collective madness.
On that note, I also want to say, to any member of our MIT community who may have felt isolated or attacked over the past few weeks simply for existing as a living, breathing human being, you are not alone: I will gladly stand alongside you in spirit, and I will always recognize the dignity inherent in you as a fellow human being. And I am certainly always willing and happy to lend an ear if you ever want to reach out.
Now, with this discussion of “hate speech” in mind, are there any (other) limitations to free speech rights at all, whether at MIT specifically or across the United States generally, that are reasonable to enforce? The answer is yes.
For example, I generally have the freedom to rant about how the SALT deduction is terrible. But if a municipality wants to prevent me from talking about this specifically on a megaphone at 2 AM in a residential area, that municipality has the right to restrict me so long as this is part of a content-neutral, narrowly tailored noise ordinance. Similarly, public universities have the right to apply these “time, place, and manner” regulations as long as they are content-neutral and narrowly tailored, and they leave open alternative channels for the speaker(s), following the Supreme Court’s three-pronged test on this matter. Again, it should be noted that MIT is not a public university, and hence does not strictly need to align with this standard; fortunately, though, the “MIT Statement on Freedom of Expression and Academic Freedom” appears to align with current case precedent regarding the First Amendment, specifying that:
“MIT does not protect direct threats, harassment, plagiarism, or other speech that falls outside the boundaries of the First Amendment. Moreover, the time, place, and manner of protected expression, including organized protests, may be restrained so as not to disrupt the essential activities of the Institute.”
As an aside, it should be noted that merely stating an adherence to First Amendment principles does not necessarily mean, unfortunately, that these principles will always be followed. To the extent they still occur on campus, unconstitutionally broad restrictions on speech, such as wholesale bans on banners or flags, should continue to be called out and rejected as the illiberal policies they are.
Now, in regards to “time, place, and manner” restrictions, I am aware of at least two clear instances where the CAA deliberately violated such policies.
The first is the organized protest that occurred on November 2, in which members of the CAA disrupted the office of the MIT Center for International Studies (“CIS”). In a letter, the CIS Director, Professor Evan Lieberman, noted that “many staff reported having felt alarmed, intimidated and even afraid,” and he followed further that “the protest involved methods that we consider to be unacceptable and a violation of MIT policy.” Policies against disruptive protests occurring in semi-private office space would surely satisfy the Supreme Court’s three-pronged test for “time, place, and manner” regulations.
The second is the organized protest that occurred on November 9 in Lobby 7. The CAA appears to have planned to hold a protest from 8 AM to 8 PM in the Infinite. In a pre-emptive response, on November 8, the MIT administration circulated policies outlining certain areas in which protests could be held, which notably excluded Lobby 7 and the Infinite. One CAA member claimed this came as a “complete surprise” and that it “was very obvious it was a means of trying to censor this and shut down this protest.” Undeterred, the CAA moved forward with its plans, first arriving in Lobby 7 at around 7:30 AM. Counter-protestors subsequently showed up, first arriving at around 9:00 AM, with the two sides then facing off for several hours. With tensions escalating, MIT staff evidently tried to have the protesters move to another location, to no avail. By noon, the MIT administration appears to have been concerned about escalating tensions leading to an outbreak of sustained violence, and, as a result, called on all individuals to leave Lobby 7 by 12:15 PM. According to the article, all counter-protestors subsequently left, but many protestors remained, with the CAA President reportedly saying that the protestors decided it was important to maintain a “strong and unified position.” Subsequently, additional, non-MIT-affiliated individuals joined this protest. The protest continued until 9 PM, before finally ending.
So, was this protest protected speech, or did it violate MIT’s content-neutral “time, place, and manner” regulations and thereby cross the line into unprotected speech? To answer this question, I ignore the distinction of MIT being a private university and consider First Amendment precedent generally, thereby affording the CAA greater free speech protections than it otherwise might receive.
Past precedent suggests that the initial guidelines circulated by the MIT administration the day prior to the protest did not pass the Supreme Court’s three-pronged test on “time, place, and manner” regulations. In particular, these policies outlined a limited (albeit admittedly large in area) set of outdoor spaces in which protests could occur, and further specified that “[t]hese spaces must be reserved in advance with reasonable notice.” Given that these policies were only circulated the day prior to the protest, it is not clear if they feasibly allowed for alternative venues for the protest to occur in. In addition, given the timing of the circulation of these policies, it is also unclear if this was entirely content-neutral, if they were sent out purely in response to the message that the CAA intended to convey at its protest. Finally, and most importantly, restrictions placed by universities that limit free expression to certain areas (i.e., “free speech zones”) have historically been struck down as unconstitutional, with one court ruling holding that free speech must be permitted on “park areas, sidewalks, streets, or other similar common areas … irrespective of whether the University has so designated them or not.”
This being said, what about content-neutral prohibitions only on protests specifically occurring in Lobby 7 or other interior areas, which I understand exist at MIT? Assuming these were publicized well before hand, would these prohibitions similarly fail this test? I would venture no. Namely, an argument could be made that a university has a vested interest in, e.g., ensuring that pedestrian traffic is not restricted by protests, and this reasoning could presumably allow for such a restriction to pass constitutional muster. Nonetheless, the policies circulated by the MIT administration on November 8, as stated, likely failed the Supreme Court’s three-pronged test on “time, place, and manner” regulations.
The same, however, cannot be said for the subsequent request by the MIT administration that all individuals leave Lobby 7 by 12:15 PM. As a starting point, the threat of imminent violence has a strong tradition in jurisprudence for tempering freedom of speech; for example, Brandenburg famously established the “imminent lawless action” standard. Given the events of the morning, it seems reasonable to think that sustained violence could have potentially broken out if both protestors and counter-protestors continued to face off into the afternoon. And universities arguably have not only the right, but also the obligation, to prevent violence and uphold general order on their campuses.
Now, turning to the original three-pronged test, and considering the prongs in turn, firstly, this request was content-neutral, as it applied to both protestors and counter-protestors. Secondly, this request was narrowly tailored, as it applied solely to Lobby 7. Finally, the MIT administration allowed for the protest to occur in a different venue; in fact, MIT staff evidently attempted to help the protestors relocate, but the CAA unfortunately refused to take this offer. As such, it is clear that the MIT administration’s request that all protestors leave Lobby 7 on November 9, due to concerns over violence, would satisfy the Supreme Court’s three-pronged test for “time, place, and manner” regulations.
Moreover, as far as I am aware, the CAA has neither apologized for these past violations nor promised to avoid future violations. In fact, at the November 12 protest, the CAA appears to have been unrepentant, with, as I understand it, one CAA speaker saying that: “We remain steadfast … we won’t back down … stood up to one of the most powerful institutes in the world and got them to back down … we are strong, united, and powerful … so we will let MIT know that we will keep fighting [and] we will keep pushing.”
As such, there is no reason to believe that these two events will be isolated occurrences, absent either the CAA facing meaningful consequences for its actions or a significant shift occurring in the composition of its leadership, with the latter appearing unlikely barring the COD carrying out significant disciplinary action (i.e., expulsion).
Now, how are the CAA’s repeated, deliberate violations of MIT’s content-neutral policies relevant for recognition by the Association of Student Activities (“ASA”)?
Straightforwardly, in Article III, Section 1 of the ASA’s Bylaws, the responsibilities of recognized student groups are laid out, which include point #2: “Each activity shall comply with … MIT policies on student conduct” (emphasis added).
Moreover, Sections 2 and 3 of Article II of the ASA’s Bylaws further specify that “[a]ny ASA recognized activity not meeting its responsibilities as set forth in this constitution and the policies of the ASA may be subject to derecognition.” This also intuitively makes sense: ASA-approved groups can use the MIT name and, in some instances, operate with funding from MIT, so that continued ASA-recognition implicitly means tacit approval from the MIT administration.
Again, I understand that the COD is supposedly investigating individuals. However, I am not aware of the COD also investigating the CAA, or other student groups, as a whole. As such, the resulting course of action that the ASA Board must take is clear: investigation and, if (presumably) appropriate, de-recognition of the CAA.
As a former member of the ASA Board, I acknowledge this may be a novel decision to make, and it should certainly not be taken lightly, particularly given any concerns regarding free speech. While numerous groups have been de-recognized in the past for failing to meet the requirement that their active membership consist of “at least 50% MIT students,” I am not immediately aware of any prior instance in which a group was de-recognized for a reason similar to the situation at hand.
Nonetheless, the ASA must carry out its duty, whether it comes to recognizing student groups, approving student group funding, or de-recognizing student groups, in a viewpoint-neutral manner. As such, given the apparent facts of this matter, pending a fuller investigation with due process for those involved, and absent any public contrition from CAA leadership, the ASA Board has an obligation to de-recognize the CAA for having violated the ASA’s Bylaws deliberately and repeatedly in a manner that clearly goes beyond free speech protections. I strongly urge the ASA Board to perform its duty on this matter. And if the ASA Board fails to do so, I strongly urge a two-thirds majority of the student group representatives at the next ASA General Body Meeting, this upcoming spring, to vote in favor of de-recognition. Failure to do so would likely either encourage even more unchecked disruptive protests in the future or result in an even more pervasive double standard of regulations being frequently applied unevenly (and likely dependent on content). Both of these possibilities would ultimately further tarnish the credibility of MIT as an institution of higher education, further fracture our community, and perhaps even lead to further intrusive government investigations (which would arguably be warranted).
As an aside, I want to be clear that the above is emphatically not a call for those reading this to harass the members of the ASA Board on this matter, whichever way they may be leaning, particularly for readers who are not MIT students. Those who are motivated can always write up their own opinion pieces, after all. And for those readers feeling upset, you can always send your comments my way at firstname.lastname@example.org, if you want to tell me how stupid I am or whatever. “Practice what you preach” and all that jazz.
Now, a diligent reader will probably have realized by this point that I have refrained from explicitly mentioning either “Israel” or “Palestine” in this article so far (external links notwithstanding). This exclusion is deliberate. On one level, I recognize that I am by no means an expert in the geopolitics or history of this region of the world. As such, I would, at best, end up sounding astoundingly dumb if I tried expounding on anything in detail. I just simply know that the atrocities that Hamas committed against innocent civilians on October 7 were utterly, truly abhorrent and barbaric. I simply know that there are humanitarian rules of war that all sides must follow. And I simply know that the fog of war can be blindingly thick at times, with the present conflict being no exception from this rule. I suppose that much at least is axiomatically obvious to me, but, hey, what do I know.
Moreover, I believe the above principles I laid out apply universally. Indeed, if an ASA-recognized student group advocating for a view that I passionately held (“Students Against the SALT Deduction,” anyone?) decided to violate MIT’s content-neutral “time, place, and manner” policies deliberately and repeatedly, I would hold the same position I expounded upon here. After all, selective application of regulations is corrosively antithetical to the proper, healthy functioning of a rules-based society, like our own.
Of course, perhaps it would be remiss of me to not make at least one, somewhat more conclusive comment on the wider “context” of this situation. So, to that end, I will conclude this lengthy piece with a prayer for all Israelis and Palestinians:
May, one day, they all live in peace.
Free from suffering.
Free from destruction.
And free from terror.
Chad Qian was a member of the MIT Class of 2020. He was a member of the ASA Board, as an undergraduate representative, from spring 2019 to spring 2020, and he is a member of the MIT Free Speech Alliance. The views expressed above are his and his alone, and do not represent the views of any affiliated organization.