Tagged: civic virtue

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FAN 118 (First Amendment News) University of Cape Town Disinvites Flemming Rose — Floyd Abrams Dissents

Note: Below is a heretofore unpublished letter from Floyd Abrams. It follows another one recently posted on this blog by Professor Nadine Strossen. Vice-Chancellor Max Price, to whom both letters were primarily directed, was invited to reply. (Links have been added for reference purposes.) 

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July 24, 2016

Dear Vice-Chancellor Price:

I am a practicing lawyer in the United States who has devoted the better part of my professional career to defending freedom of expression. I am also a Visiting Lecturer at the Yale Law School, have written two books and many articles about freedom of expression around the world, and have spoken about the topic in a number of nations including, by way of example, India, Japan, Sri Lanka, Malaysia, Great Britain and—of particular relevance—South Africa. I was one of a number of foreign scholars who participated in advising the drafters of the South African Constitution. I have spoken about issues relating to freedom of expression in Johannesburg, Cape Town and Pretoria. I have read your statement about the decision of University of Cape Town to withdraw the invitation to Flemming Rose to deliver this year’s  TB Davie Memorial Lecture. I take the liberty of writing this letter to you because your decision is not only of consequence to your university and to your country but to democratic nations and universities in them throughout the world.

Floyd Abrams

I would like to make two brief observations at the outset.

The first is that I am not writing to you to urge you to adopt or to apply American standards in deciding who may be invited. As your statement correctly observed, the framers of your Constitution quite deliberately adopted a general right of free expression subject to certain specific limitations relating to propaganda for war, incitement of imminent violence, and “advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.”

The second is that I am not writing to suggest that the cancellation by a university of an invitation to speak made to a  prominent  public figure is unique to South Africa. Quite the opposite is true. In the United States, a number of invitations have been made and then withdrawn by universities to prominent individuals including a former Secretary of State and the current head of the International Monetary Fund after protests were feared if the speaker was permitted to offer her views. Indeed, it is precisely because of my strong belief that the decisions of those American universities—and there are many of them– were so shameful and so contrary to basic principles of academic freedom that I take the liberty of writing to you.

UnknownAt the outset, nothing in the South African Constitution lends any support to your decision. Nothing that Mr. Rose has ever said can possibly be said to constitute propaganda for war. He has never urged violence against anyone or sought to incite it. Your statement observes that “Mr. Rose is regarded by many around the world as … someone whose statements . . . possibly amount to hate speech.”. I appreciate and honor your unwillingness to say that you credit any such an insupportable charge. But if you are unwilling to do so—and there is no basis for doing so—you can hardly rely on the notion of incitement as a basis for cancelling the invitation. I note in that respect that even the clause of the South African Constitution that limits free speech protection to advocacy of racial hatred or the like does so only when the speech at issue “constitutes incitement to cause harm”.

Writing from afar, I cannot comment specifically on your expressed concern about the security risks of permitting Mr. Rose to appear except to say that your nation, as mine, has experienced security risks in the past and when aware of them has been able to protect speakers and listeners alike. The security question is not whether it can be provided; it is whether freedom of speech on your campus is so important that it is worth doing so, with all its risks. Your Academic Freedom Committee obviously thought it was. From any perspective that honors academic freedom, that is a necessary conclusion.

Dr. Max Price

Dr. Max Price

The same is true of your stated concern that inviting Mr. Rose may have the perverse effect of limiting rather than vindicating academic freedom since he “represents a provocatively—potentially violently—divisive view.” Of course, Mr. Rose himself offers provocative views. I am sure that is why he was invited. But he hardly “represents” a “potentially violently” view about anything. The risk of violence is at all not from him but from those who simply do not accept core notions of freedom of expression and academic freedom. To yield to those who cannot abide freedom of expression that they find abhorrent is to abjectly surrender to them.

There remains the first basis articulated by you for rescinding the invitation to Mr. Rose—concern about provoking conflict on campus. It is, I am well aware, awfully easy for people thousands of miles away from your campus and whose views you have not sought, to presume to advise you that even if there is a risk of conflict on your campus that follows or accompanies a speech by Mr. Rose, it is one worth accepting. Who needs, you may well ask, such second-guessers? All I can say is that those of us who weigh in on the issue from abroad do so because we care about your country, are impressed by its Constitution, and are often in awe of your Supreme Court and its liberty-protecting rulings. We also offer our views because the decision to disinvite by your great institution is one that will be viewed carefully by academic institutions around the world as they decide how to respond in similar circumstances.

The very first TB Davie Memorial Lecture was delivered by Chief Justice Centlivres, the Chancellor of your university, on May 6, 1959. He then summarized what he characterized as Professor’s Davie’s “articles of faith” as follows: “The first was that a university is primarily a centre of learning, the second that a university flourishes only in an atmosphere of absolute intellectual freedom, and the third, that the pre-eminent virtue of university life is intellectual integrity,.” Guided by those precepts, it is difficult to understand or accept the cancellation of Mr. Rose’s appearance.

Respectfully submitted,

Floyd Abrams

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News Update: Michael Cardo, UCT: A tale of two lecturers, PoliticsWeb, July 25, 2016 (“This coming weekend, the University of Cape Town will host Hamza Tzortzis, a highly controversial lecturer who propagates a radical version of Islam. His visit to the campus follows hot on the heels of an executive decision to bar Danish journalist Flemming Rose from delivering the 2016 TB Davie Memorial Lecture on academic freedom.”) 

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On Civic Virtue and Mandatory Patriotism

It is an honor for me to be invited to comment on James’s and Linda’s excellent and thoughtful new book Ordered Liberty: Rights, Responsibilities, and Virtues, especially as I look at the other invited commentators.  The book is certainly worth the sustained effort and attention that Concurring Opinions will facilitate this week with our various posts and comments.  I look forward to participating.

(This may be the first post out of the gate, but no one should read anything into the temporal ordering other than that I am jet lagged, awake at London time rather than Boston time.)

I want to prompt a conversation about Chapter 5, “Government’s Role in Promoting Civic Virtues,” in which James and Linda examine the “formulative project” of fostering “capacities for democratic and personal self-government.” They use  as an opening foil an op-ed I wrote in the New York Times in 2011 arguing that Constitution Day is a bad idea and “probably” unconstitutional. In that essay and in a couple of others, I have revealed Constitution Day to be a bete noire of mine. Constitution Day, as you probably know if you’re an academic, is a federal mandate dating from 2005 that any school receiving federal funds — public or private, kindergarten or law school — conduct some kind of educational program on the constitution on or about September 17 of each year. My basic argument is that it operates as a federal content-based mandate on those schools and thus amounts to coerced speech under the First Amendment. More broadly, I argue that coerced patriotism is a Bad Thing, using as my text Justice Jackson’s admonition in West Virginia v Barnette: “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds.”

James and Linda think I am mistaken, saying that there is little chance the Court would strike down Constitution Day as an unconstitutional condition, and that it does not amount to mandatory patriotism because schools can meet their obligations by hosting educational programs that are critical of the document and its heritage.  And I also take them to say that gentle prodding in favor of civic education, especially about a topic as central to democratic life as the Constitution, is not a Bad Thing but could be a Good Thing.

So here are a couple of points and questions about this disagreement, with the hope of prompting some of the other commentators to weigh in.

I certainly agree with the descriptive point about the Court not likely striking down Constitution Day as an unconstitutional condition.  The “doctrine” of unconstitutional conditions is a hash — compare Rumsfeld v FAIR or Rust v Sullivan (allowing conditions) with Speiser v Randall or Legal Services Corp. v Velazquez (disallowing them).  And Chief Justice Roberts’s bizarre opinion on the Medicaid expansion in Sebelius last year makes it worse, though it actually strengthens my argument about Constitution Day.   (If the threat of the loss of Medicaid funding is coercive because it is “economic dragooning that leaves the States with no real option,” then so is the loss of education funding.)  In any event, the Court is unlikely to feel so constrained by the “doctrine” of unconstitutional conditions to strike down a law that most feel imposes trivial obligations in exchange for significant funds.  (Though — just to allow me to vent for a moment — that characterization makes the fact that the condition acts as coercion fairly clear.)

So I will assume for the sake of conversation that the question of governmental authority is settled.  So that leaves the question of rights.  And Ordered Liberty helps us get a handle on that question, not only with regard to Constitution Day but with broader questions of the state’s role in fostering “civil tolerance.”

But my question: Does our judgment of what constitutes a valid exercise of the federal government’s power to encourage civic virtue depend on the content of what is being encouraged?  And how does that play into the rights dialogue?  Here’s a law professor’s hypothetical.  If Congress passed a law saying “no school receiving federal funds is permitted to offer a course about Islam,” wouldn’t it be clearly unconstitutional?  Or, “any school receiving federal funds is required to begin the school day with a Pledge of Allegiance, in assembly, led by the Principal or her designee”?  Are these worse because there is a greater viewpoint bias imbedded in them?  Does it matter that, in operation, the vast majority of institutions that mark Constitution Day in fact do so with celebratory rather than critical curricula?