Common Sense about the Chilling of Campus Speech

Much blame, much truth, and much exaggeration can be attributed to almost all sides of this difficult controversy.  As is so often the case, simplistic answers are misplaced.

Greg Lukianoff, a leader of the fight to raise awareness of challenges to free speech on college campuses and to challenge restrictions on campus speech, offers valuable perspective on the deep roots of what often appears as an unprecedented attack on campus speech. He is right that despite the fact that every college speech code challenged in court has fallen, court rulings about particular hate speech codes are not self-executing:  each school’s code, and each revised code following a court ruling, may need to be challenged in court. For this reason, hate speech codes imposed by university administrations appear to be far more prevalent that they were decades ago. 

As a society we are certainly more aware than we were a decade ago of the number of incidents involving challenges to freedom of expression on college campuses – at least if we measure awareness by the number of news reports and pundit comments. That does not necessarily establish that there is more censorship today (or more offensive speech) than there was before the Free Speech Movement in Berkeley or during the “political correctness” of the 1980s and 1990s, when a Stanford undergraduate who sought limits on speech offensive to African-Americans proclaimed: “We don’t put as many restrictions on freedom of speech as we should.”

On the other hand, Eric Posner is onto something when he suggests that Lukianoff “exaggerates the problem,” pointing to the fact that there are 5,300 colleges and universities in the United States, which educate some 20 million students each year. If we consider the number of identified instances of “official” censorship – prevention of speech or discipline imposed because of speech – by university officials, most students seem to complete their college years without experiencing censorship first hand. They may not even feel their speech has been “chilled” – First Amendment parlance for policies that lead to self-censorship by speakers who fear repercussions in response to controversial or disfavored expression.   

However, the statistics that Posner regards as a measure of a healthy environment for campus speech are hardly a relevant measure of whether constitutional rights are being violated or whether we should care that they are. No rights are absolute, but when it comes to free speech, it is widely agreed that no encroachment is too minor to be safely disregarded.   

Chill is certainly evident in  a professor requesting anonymity for writing “My students scare me” in Vox, and it’s evident in some 300 students who anonymously signed a letter criticizing the protesters at Claremont McKenna College for their “hostile rhetoric,” which made the letter-signers “afraid to speak our minds.” 

Posner too glibly dismisses documented incidents in which expression was inhibited or worse as “speech that was on the margin of other activities that are appropriately regulated, such as distributing leaflets and threatening students or faculty.” Reasonable time, place, and manner rules will survive constitutional review, but rules are not “reasonable” when they make pamphleteering all but invisible, as when restricted to a tiny space on the edge of campus. Or, Posner posits, a student may “express views in a way that may threaten campus order, safety and security.” True as far as it goes, but authorities at every educational level too often claim that speech will disrupt activities or is threatening on the merest pretext, such as discord among athletic team members. As I show in Lessons in Censorship, there is a tendency by those who would stifle speech to equate modest inconvenience with a threat – but the range of verbal threats that the First Amendment allows to be punished is limited to a narrowly defined category of “true threats,” a definition that is intentionally very hard to satisfy.

In a startling revelation, Posner lays bare the fundamental premise behind his dismissal of campus censorship incidents when he accuses Lukianoff of “imagin[ing] that free speech is a good in itself.” To be fair, in our constitutional system, free speech is a good from which many others flow, indeed it is the sine qua non of democratic governance. But, despite Posner’s view that the function of free speech is confined to its role in promoting “good governance,” the ends served by free expression are not so limited.  To measure good governance, citizens need to develop views of the good life. And they need to choose values, and develop their own capacities. All of these aims are served by the free exchange of ideas – including both “good speech” and “noxious speech,” which promote individual autonomy as well as democratic governance. Buried somewhere in Posner’s discussion of voluntary self-segregation on college campuses that mirrors the increasing lack of diversity within zip codes and neighborhoods lies another First Amendment value – freedom of association, so long as divisions are not coerced or enforced by government. 

College administrators and faculty in private institutions are not bound by the strictures of the Speech Clause, but many of them proclaim that they live by First Amendment principles, and for purposes of this essay, I shall adopt the hypothetical position that the First Amendment governs all of the situations discussed here.   

To delve more deeply into the problem of free speech on campus, we need to distinguish based on both the source of the inhibitions and whether the speakers whose expression is imperiled are faculty members or students. Starting with the source of the inhibitions – those that are in place and those being proposed – adults who preside over institutions of higher learning remain the most potent practitioners of censorship, particularly when the person being disciplined is a faculty member. Student complaints or demands for sanctions on certain types of speech rely on college administrators to set up reporting systems and impose penalties.

A study released last month by the al Coalition Against Censorship shows that while there is no “trigger warning ‘crisis’” (referring to expectations that teachers give advance notice of potentially upsetting material), sixty-two percent of professors who were surveyed said they believed trigger warnings adversely effect academic freedom. They are especially concerned about the growing number of teachers who lack tenure, and who may adapt “how or what they teach” to avoid hurting “students’ feelings.”

 Administrators at a range of universities have in fact scrutinized or penalized faculty members for controversial speech, a phenomenon others have explored at length. As Joan Scott framed it in a powerful, well-documented address at the American Association of University Professors last spring (later published in The Nation) college presidents have long relied on the notion of “civility” to mask attacks on unwelcome content and viewpoint. Lack of civility, Scott points out, is one of those malleable, subjective notions that is always defined by the powerful. Drawing on scholarship about the concept of “civility,” she shows that “‘Civility’ becomes a synonym for orthodoxy; ‘incivility’ designates unorthodox ideas or behavior.”

This critical insight applies whether the censorious are college presidents or the students who are the focus of recent headlines about the imperiled position of free expression on campus.  Civility is another way of saying people should not feel attacked, and spaces should be governed by shared norms to which “we” all subscribe. The dissent from today’s norms of discourse and behavior may be merely thoughtless, or it may convey broader political disagreements that would be at the apex of First Amendment concerns. The First Amendment is all about protecting dissenters.

Posner would have it that university speech codes are “designed not to stifle but to enhance discussion by discouraging students from being rude to each other” since they live together and must interact all the time, and it is “so easy to inadvertently offend someone from a different background.” Punishing students who “harass” peers, he says, is nothing more than permissible regulation of manners “in the spirit of time, place, and manner regulations” that do not violate the Speech Clause. Forgive me if I sound uncivil: Posner is wrong. The first requirement for a time, place, and manner regulation is that it cannot differentiate among speakers or speech based on the content or viewpoint of the expression. 

Whether it’s called good manners or civil speech, the manner of expression and the ideas conveyed are beyond the government’s power to regulate, unless they truly rise to the level of civil or criminal harassment,  which must be carefully defined to avoid reaching too much protected expression.  As individuals we may elect to refrain from denigrating others based on group identity or other traits; as parents we can try to teach our children to do so; and college teachers and administrators can – by example and exhortation – encourage students to behave respectfully toward each other without violating anyone’s speech rights.  What colleges can’t do is mandate sensitivity training with punishment for those who do not live by its precepts. 

At Amherst College, students have demanded a “zero tolerance policy for racial insensitivity and hate speech.” Zero tolerance not only means mandatory punishment, it removes any discretion to consider context or misunderstandings. What is insensitivity? Who measures it? Is intent required? 

While they may be fodder for academic discussion, the answers to these questions don’t really matter because the First Amendment protects insensitive expression and even hate speech unless it violates a civil or criminal law such as laws that proscribe harassment, libel, or true threats.  Even in elementary, middle, and high schools, where students are arguably more vulnerable and can’t leave the building to avoid the obnoxious speaker, there is no right to be protected from a peer’s hurtful expression. Take it from Judge Richard Posner, who explained why a high school could not protect LGBT high school students from homophobic insults: There is “no generalized ‘hurt feelings’ defense to a high school’s violation of the First Amendment rights of its students.” If children who are required to attend school are expected to learn to cope with disturbing speech, the Constitution requires that colleges demand as much of the adults who have chosen to enroll.

Even high schools cannot single out or punish students who refuse to voice tolerant sentiments that conflict with their actual beliefs. As one federal judge observed, a teacher’s insistence that “a student cannot voice an opinion that creates an uncomfortable learning environment for another student” undermines the “robust political debate” that the First Amendment protects, and “model[s] oppression and intolerance.”

But imposing viewpoints – also known as compelled speech – is just what some contemporary campus activists are demanding of colleges. The insensitive views or manner of speech some students demand that colleges suppress are in some sense nothing more than dissent from the dominant view that we must respect each other, and that certain forms of disrespect are intolerable. I say “in some sense,” because of course far more is at stake: a constitutional commitment to equality. And here we reach the crux of the matter.   

At some point during the last forty years, liberals hit a fork in the road – some stayed on the path of an overarching commitment to the First Amendment, while others took the turnoff, choosing to elevate equality over free expression whenever the two constitutional values seem to conflict. Beneath this, for those who are committed to both foundational principles, is a chicken and egg problem: does free speech create the conditions under which we can achieve equality, or is equality a precondition for meaningful free speech?  It is undeniable that racist speech, like homophobic or anti-Semitic or anti-Muslim or anti-feminist speech, causes palpable harm to those targeted. One premise of the First Amendment is that words matter. Words are powerful, and they rouse to action. Another premise applicable here is that the best response to noxious speech is more and better speech, because the state cannot be permitted to determine which ideas are “correct.”   

Posner says that distinguishing between the demands that universities can grant without violating the Constitution and those that they can’t (as Lukianoff proposes) is “copping out” because: “If you know in advance that no one will take seriously your speech, your right to freedom of speech is empty.” 

This may be one of the most original spins on the First Amendment I have heard in a long time. Many of the speakers at the heart of the seminal First Amendment cases lacked any realistic prospect that their speech would transform the world because they were so far on the fringes of mainstream thought: from the “silly leaflets” by an “unknown man” who inspired Justice Holmes, to the Nazis who marched in Skokie, to the tasteless funeral picketers from Westboro Baptist Church, none presumably thought their freedom of speech was “empty.”

Lukianoff has it exactly right when he says that contemporary student demands require a two-step First Amendment analysis. Campus protesters motivated by concerns for equality and dignity have First Amendment rights to assemble, demonstrate, and press their demands – and they should exercise them.  Where those demands do not impinge on anyone else’s constitutional rights – for example, changing the name of Calhoun College at Yale or the Wilson School at Princeton – university administrators and trustees should use their best judgment in deciding how to respond. But when students demand that the university restrict the speech rights of their peers or of the faculty, the First Amendment permits only one response: to protect freedom of expression and teach students what the Constitution requires.

Also from This Issue

Lead Essay

  • Campus Free Speech Has Been in Trouble for a Long Time by Greg Lukianoff

    Greg Lukianoff reviews the recent media attention to cases of speech suppression on college campuses. He agrees that they are troubling, but notes that they aren’t all that new: Political correctness and expansive speech codes were widespread in the 90s, and most of those codes never disappeared. Lukianoff traces their origins to the federal Department of Education’s Office for Civil Rights, which has significantly confused administrators and students about the prevailing law in these matters. Administrators in particular want expansive speech codes because such codes shield them from legal liability. Lately, though, students have begun to demand them too, in the hope of suppressing hate speech and so-called microaggressions.

Response Essays

  • Campus Free Speech Problems Are Less Than Meets the Eye by Eric Posner

    Speech codes may sound menacing, but they are actually designed to enhance speech, writes Eric Posner. No classroom instructor tolerates rudeness or disruption of the learning environment, and speech codes are an outgrowth of this laudable practice. Administrators, too, are less guilty than it may seem by relying on Greg Lukianoff’s anecdotes: They have not been punishing students merely for their speech. Universities face a difficult task, in that they must accommodate highly diverse student cohorts with wildly divergent ideas, all while preserving an atmosphere of collegiality and of learning. It is inevitable that mistakes will arise. These mistakes, though, do not indicate any sinister trend about American education or public life. Would an absolutist free-speech policy do better at educating college students? That’s an empirical claim, and one that Lukianoff does not even try to substantiate.

The Conversation

Letters to the Editor