Why First Amendment Values Matter

Before I enter the continued conversation, I’d like to thank everyone involved for this stimulating and important exchange. I also want to congratulate Greg Lukianoff and the rest of his family on his new baby and to applaud him for not only taking paternity leave but telling everyone that he is doing that. Now, back to the topic at hand.

Let me start with the issue of how widespread censorship and censorious attitudes actually are on college and university campuses in the United States. In my article on “Common Sense about the Chilling of Campus Speech” I agreed that Posner might be right that Lukianoff “exaggerates the problem,” but I hardly intended to suggest (as Posner does) that Lukianoff resembles the undertaker who sees a plague everywhere, based on his exposure to dead bodies. Instead, I suggested that the precise numbers as a proportion of college students might not matter, because the known incidents of censoriousness undermine the confidence that exercising freedom of expression will not lead to repercussions. This confidence is an essential component of meaningful speech rights.

For that reason, I have little interest in learning the results of the poll Posner urges Lukianoff to commission. Indeed, I think such a poll would be a waste of precious resources – funds, time, and energy – better spent fighting to enforce free speech obligations. First, as I have said, the exact numbers don’t matter; we know enough to know that many students and faculty members are afraid to speak up and to exercise their constitutional right to be controversial, contrarian, or dissident.  

Second, polling about attitudes is highly dependent on exactly how questions are phrased and is likely to under- or over- estimate particular views and experiences. I won’t share the Onion-like hypotheticals some social scientists use to illustrate the problem, because they often involve disparaging portrayals of ethnic or racial groups – exactly the sort of expression at the center of controversy on college campuses today. Indeed, the question that Posner poses to his students illustrates the problem: he asks whether students know of classmates who were punished by administrators for expressing their views, or if they feared the university would punish them for expressing a view. Many students could hear this as a very narrow question referring to formal penalties: suspension, expulsion, and other penalties noted on a permanent record. It entirely misses all the more subtle ways a university can diminish the free exchange of ideas. A student might think, “I didn’t fear punishment, because I knew I would be safe if I spoke out on the narrow strip on the edge of campus designated for free speech,” or “my friend wasn’t ‘punished,’ he was only reported to the dormitory council.”

Third, the comments of those polled, like the comments of Posner’s students, and mine, are open to interpretation. Like Posner, I ask my law students about their experience of speech codes in the public and private colleges they attended all over the country. I frame the inquiry quite broadly, asking what rules if any governed student speech at the colleges my law students attended, and whether the college was public or private. We have this conversation well into our exploration of freedom of expression. It usually elicits the following information. First, until they studied the First Amendment, many students had no idea that they had a constitutional right to speak up on campus. Second, many or most students were unaware of the rules (or codes) that applied to expression on the campus they had attended. (One can argue this both ways: it might mean the rules weren’t enforced, or it might mean that the students never sought to take a public position on an issue). Third, students quickly discovered the FIRE website, which provides and assesses the speech code for every college that has promulgated one, diminishing the efficacy of what was once a useful small research assignment – and that is all to the good. The first two responses don’t give me the complacent “kids are all right” feeling Posner apparently takes away from a similar conversation. When students were aware of speech rules, the most common one they reported to me was that their school had reserved a “First Amendment zone” where speech was permitted. During the years they were undergraduates, most of my law students did not understand that reserving a small space designated for protected speech turned the First Amendment on its head – the First Amendment zone should cover almost every public part of the 50 states (with exceptions like military bases).

Posner says, “I’m inclined to believe my students,” meaning their purely impressionistic and anecdotal evidence that there is no rampant inhibition of campus speech, because they “have no reason to lie to me.” Neither do mine have reason to lie to me. But both groups of students may have an inkling of which kind of answer would prove more supportive of their professors’ worldview, or legal philosophy, or preferences. Alternatively, it is possible that our respective students have self-selected in choosing whom to study with, based on their experiences and outlook and what they know about our scholarship. I hope that isn’t the case, but something accounts for the very different impressions we are gleaning from these non-randomized student accounts. If any former students of mine are reading this, I encourage them to add comments to this blog or email me. (I am on sabbatical, so I don’t have any current students. If I did, I’d hope they would feel free to respond too.)

This brings me to Posner’s response to my article. He writes

I see no point in analyzing this question from a First Amendment perspective, as Catherine J. Ross does, because, first, the debate is about private universities, not public universities, and private universities are not prohibited by the First Amendment from regulating the speech of students. Second, the question is what private universities should do, not what they are legally required to do …

There is, as we law professors say, so much to unpack in that paragraph.

The debate and the problem are not limited to private universities. Perhaps Posner has forgotten that the University of Missouri was center stage in the emerging national focus on challenges to speech, blocking journalists, and so forth. It is beyond doubt a public university, bound by the Speech Clause. On November 10, 2015 the University’s Police Department asked all individuals “who witness incidents of hateful and/or hurtful speech” to call the police, provide identifying information including license plate numbers, and take photos so that the university could take “disciplinary action.” While this notice was subsequently rescinded after observers pointed out the First Amendment violations it entailed, it captures a recurrent attitude displayed by state actors. After the change of administration at Missouri, as The Economist reported this month, the university issued a new “guide to ‘inclusive terminology’” addressing a wide range of verbal offenses well beyond those based on race; the guide resembles the one issued by the University of New Hampshire, which is also a public institution. I don’t know what penalties if any are attached to violations, but I note that the current President and Vice Chancellor for inclusion, diversity, and equity at Mizzou are both law professors, and they should know better.

Posner also gave short shrift to a critical passage in my article, in which I clearly stated: “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.” But Posner asserts that he doesn’t see how the First Amendment “can provide much guidance for resolving the conflicts that arise on campus.” Here, Lukianoff provides the correct phrase: if not the First Amendment, then “First Amendment values.” This is the culture at the heart of intellectual inquiry, self-discovery and democratic self-government as I discussed in my earlier article. Here, I thank Dave Marney for his astute comment in these pages that public schools teach “these attitudes” well before students reach college – I assume he means disrespect for First Amendment values (the topic of my recently- published Lessons in Censorship). If the question is, as Posner himself says, “what universities should do” (emphasis added), not what they must do, how can we fail to seek guidance from the First Amendment and the common law interpreting it?

Posner urges Lukianoff and me to confine ourselves to consideration of the question that interests him: “how can universities best achieve their mission, which is to produce, retain, and transmit knowledge?” Whoa. That may be a question for another issue of Cato Unbound, one I’d love to address, but it is not the agenda for this month, which was set by Lukianoff’s opening essay. And I venture to guess that some people don’t agree that every institution of higher learning has – or should have – as its primary mission the production of knowledge, that is, research by faculty members. That is certainly not a core mission of the nation’s increasingly important community colleges. But I digress. This is a set of questions for another day.


Also from this issue

Lead Essay

  • 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

  • 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.

  • Catherine J. Ross argues that the issue of free speech on college campuses is far more nuanced than either side seems willing to admit. We have become much more aware of the problem than previously, thanks in part to social media and the efforts of advocates like Greg Lukianoff, who rightly points out some troubling examples here. And yet there is room for exaggeration: Eric Posner is certainly onto something, she writes, that Lukianoff exaggerates the severity of the problem. Ross searches for evidence in both directions and concludes that a chilling effect has clearly been at work in recent years. Professors should never feel as though their students scare them; students should not be scared of one another. The crux of the matter, as she puts it, is that liberals have recently been divided: Some have kept to their traditional First Amendment commitments, while others have come to prefer equality in many instances where equality and freedom of expression appear to conflict.