Events of the past two weeks offer a chilling report on the state of free expression in the United States. Student antiwar activists have taken to the quads of universities from coast to coast to voice their horror at the humanitarian catastrophe unfolding in Gaza and petition their administrators to divest from the companies who profit from death. Their calls for peace have been met with a horrifying wave of repression. Police attacked students at Emory University with rubber bullets and tear gas while the NYPD deployed sound cannons to corral students and faculty at NYU into mass arrests. Less spectacular but no less shocking have been the administrative sanctions universities are handing out. Columbia University and Barnard College summarily suspended student protestors and evicted them from their dorms without fair warning.
The erection of a protest camp on the Arts Quad in the early hours of Thursday morning raises the urgent question of what will happen here. Will the Cornell administration follow the national trend of coercion and repression? Or will it choose another path, one that does not sacrifice our institution’s cherished values of free expression and academic freedom under pressure from those outside the university calling for more severe punishment, as the latest letter from the House Committee on Ways and Means asks President Pollack to do?
As a member of the Cornell community who has dedicated my career to the study of complicated questions about the relationship between law, democracy and dissent, I am writing to share some reflections on how to think about the unauthorized encampment on the quad and what we can learn from it about the meaning of free expression in this global moment of democratic backsliding.
At the heart of the matter is the Interim Expressive Activity Policy. Since its introduction in January, many members of the Cornell community have voiced concerns about how its careless combination of vague definitions and strict restrictions make it ripe for discriminatory enforcement. I will not repeat these criticisms here. What matters now is that the students have openly and conscientiously violated the restrictions outlined in that policy. Assembling a group of over 50 people without prior authorization, using amplified sound on the quad, and hosting banners and signs over 8”x11” are all explicitly forbidden. This is not the first time students have openly flouted the policy. The Coalition for Mutual Liberation die-in at Mann Library appeared carefully staged to do just this. Myself and other faculty broke these rules in March when we shared our concerns about the policy through a megaphone outside Day Hall. An anonymous prankster postered copies of the policy around campus on legal size paper (8.5”x14”).
The University has a right to restrict the time, manner and place of protests on campus, even if the specific way the policy defines these constraints is, to my mind, mistaken. There is nothing unreasonable about a saying you cannot camp on the quad. Students have clearly violated these rules and the University has a rightful authority to take action. But the students have violated these rules openly and conscientiously as an act of civil disobedience. The challenge before the administration — and for all of us anxiously watching and waiting on the knife’s edge — is to understand what’s different about civil disobedience, and why, given its historical role as a bulwark of American democracy, it merits a distinctive response from the university.
What makes civil disobedience special? The short answer is that civil disobedience is a kind of symbolic expression we turn to when institutions fail us. Where petitioning through official channels has been exhausted and grievances are granted no response, protestors move outside these channels, sometimes even outside the law, to make their voices heard. The antiwar camp won a landslide victory in the student referendum in support of divestment. But with only weeks left in the semester, they know time is on the administrators’ side to delay and ignore its results. Deliberation is empty without implementation. The turn to civil disobedience is the student’s attempt to keep the institutional process in motion.
Related is the fact that civil disobedience is nonviolent. John Rawls, once a young Cornell professor who would go on to become the most influential philosopher of the twentieth century, once described civil disobedience as a mode of appeal. It is a way of speaking in public, even if that speech takes the symbolic form of occupying spaces — whether that be a lunch counter or a quad — where protestors do not belong. These transgressive acts mean to disrupt the status quo, capture public attention and jump start democratic debate. The administration has argued that such disruptive protests threaten the rights of others. This, however, is by no means always true and is certainly false in this case. Students peacefully occupying the quad pose no threat to your right to free speech. They do not disturb professors’ ability to teach or students’ ability to study. The camp’s placement does not even obstruct movement in or out of buildings. The ‘Liberated Zone’ is as close to a purely symbolic expression as any administrator could ask for. In fact, the racket of the construction equipment outside my window in White Hall has proven much more disruptive to my ability to work this week than the festive atmosphere surrounding the camp just a few meters away.
Finally — and this is the crux of the matter — civil disobedience typically involves punishment. Protestors who knowingly break the rules accept they will pay a price. Martin Luther King Jr. captured something important about this idea when he distinguished the disobedience of the Southern Christian Leadership Conference as “breaking the law openly, lovingly” from that of Southern Governors who sought to both violate federal law and shirk the consequences. When protestors take responsibility for stepping outside of the rules they find yet another way to make their conduct speak to the rest of us. The willingness to bravely bear the costs is a dramatic spectacle meant to underscore the urgency at stake, and a testament to their commitment to what they think is our common good rather than simply advancing their own partisan interests. As they prepared for potential arrest last night, protestors in the camp clearly expressed their willingness to comply with police orders and clearly instructed supporters to not interfere with arrests.
With that said, neither students nor administrators want to see police descend on the camp. The pictures of students with zip tied wrists being dragged off by police streaming on screens around the world will cost the University more than it thinks and will only escalate the demonstrations. The best outcome here will be a negotiated settlement, where each side can claim some degree of victory, but neither will get everything they want. The tents will come down, but the protest will continue into the summer and fall, as divestment motions move through other levels of university governance; pressure on the Board of Trustees to comply with their self-imposed ethical investment guidelines will continue. The anti-Apartheid divestment protests of the 1980s continued for years after the shanty town on the same quad came down in 1985. Student protests for fossil fuel divestment rolled on for two years before the Board made meaningful changes. The same will be true of the morally odious investments in military technologies at issue here. The camp will go but the protests will stay.
But the fact remains the same: Students broke the rules. How should they pay? Because civil disobedience is different, it should be punished differently. Scholars argue that its publicly minded, conscientious and democracy-enhancing effects warrant it special leniency from courts. The same is true when it comes to university disciplinary proceedings. If nonviolent acts of civil disobedience must be punished, they should be punished more lightly than ordinary crimes. We will have reasonable disagreements about what this should look like. Some will argue for reduced sanctions. Others for purely symbolic penalties rather than disciplinary punishment. And others still will argue that civil disobedience should not be punished at all. If there is uncertainty about what a lighter punishment should look like, we should at least be crystal clear that it certainly doesn’t deserve a more severe punishment than ordinary infractions of university policies — whether that be in the form of police brutality or threats of suspension and eviction.
President Pollack and Provost Kotlikoff have said that calls for this kind of leniency amounts to a request to ignore protestors and disregard university rules. Nothing could be farther from the truth. As Alex Nading eloquently explained in this paper last month, they are in fact calls to listen more sincerely to these students who have put themselves and their futures in great risk to call the University to be true to its own calling: “Do the greatest good.” These students are the best of Cornell and they are calling on all of us to be better, to more fully and responsibly live up to our commitment to free expression, academic freedom and ethical stewardship of the University’s endowment. I think the University has already acknowledged some element of this in their decision not to pursue suspensions or serious sanctions in the case of students who occupied Day Hall last month. Let’s hope they can remember this again as they navigate the question of how to steer the university through this dangerous moment.
The history of Cornell’s Year of Free Expression will be written in the coming days. It will either be remembered as a horrible sham or the moment where the University rose to the challenge of thinking boldly and creatively about free expression’s meaning in a moment where it really counts. Whether or not the careers of some administrators will go down in infamy or glory, I know what I will always remember about this year. It will not be the academic programing. It will not be the needless provocation of bringing speakers like Ann Coulter to campus to insult and demean us. It will be the ways that Cornell students become my teachers this semester, both inside and outside the classroom, about the real meaning of freedom and expression, and why these are fragile values worth fighting for.
Alexander Livingston, Ph.D. is an Associate Professor in the Department of Government. His primary areas of research are democratic theory, social movements, religion and politics and the history of twentieth-century political thought. He can be reached at [email protected].
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