Private Universities Exercise Free Speech Too

Lukianoff’s latest post throws a lot more First Amendment law at me. But as I’ve explained several times now (with no response), his argument fails if he relies on First Amendment law because First Amendment law protects speech codes at private universities. FIRE itself recognizes this point; that’s why it lets off the hook any university that “clearly and consistently states that it holds a certain set of values above a commitment to freedom of speech.” FIRE acknowledges what it grudgingly calls the “freedom of association” of private universities. The more accurate term is their freedom of speech—the same right that other private corporate bodies enjoy. But whatever you call it, we’re talking about First Amendment values that Lukianoff thinks should be subordinated to his vision of speech code–free private universities.

Understood charitably, Lukianoff’s argument is that private universities should abolish speech codes, whatever the law permits them to do; and that we should be pleased that courts have denied similar First Amendment protections to public universities. This is a policy argument, not a legal argument. Since I have disputed this basic point from the start, Lukianoff’s legal arguments—which consume all but one paragraph of his post—are irrelevant.

As for that paragraph, I quote it in full:

Posner seems to accept as a certainty that students from different backgrounds need to be protected from one another, seizing upon the potential for hurt feelings and awkward misunderstandings while ignoring the parallel opportunities for dialogue and growth. By imposing speech codes and seeking to avoid offense at all costs, rather than recognizing the real—if sometimes difficult—value in having one’s core beliefs challenged, colleges teach students that offense is the worst possible outcome. That misguided impulse drives some of the problems Jonathan Haidt and I also discussed in our Atlantic piece last fall.

I said no such thing! Another one of my neglected arguments was that applying the rigid First Amendment template to private universities, as Lukianoff wants to do, would prevent them from experimenting. If I were “certain” about anything, then my aim—which is to let them try out different approaches to speech—would make no sense. My view, based on epistemic humility (the value that Lukianoff claims that he shares with me), is that because we do not know what the optimal speech regulation is for private universities, we should let the market in higher education decide.

But my real complaint with this paragraph is that it displays a narrow, unrecognizable vision of the university—the vision of a free-speech advocate, not someone who shows much understanding of the university’s mission and activities. Colleges don’t teach students that “offense is the worst possible outcome.” Students who attend halfway decent universities do get their core beliefs challenged—in class. Anyone who takes a few courses in history, philosophy, science, or literature will learn that most of their cherished beliefs have been rejected by the greatest minds and most of humanity. Compared to this, the campus speech code issues that preoccupy FIRE are small beans.

I have also pointed out that he needs to reconcile this position with his justified worry that students suppress speech by intimidating other students. Censorship by students is a more significant problem than censorship by the universities (as John Stuart Mill would have predicted). Lukianoff offers no remedy. Shouldn’t universities take action to reverse this lamentable trend, I asked? No answer; no explanation.


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.