About this Issue
The First Amendment is a deeply revered part of our constitutional heritage, but the right to free speech has never been entirely without legal limits. And these limits have always been contentious.
Still, why is free speech so particularly contentious on college campuses? And why has the issue come to such prominence just lately? Across the country, charges and counter-charges have proliferated in this area, with students, faculty, and staff often bitterly divided about matters such as the invitation of speakers, the activities of student organizations, and even classroom materials, lectures, and teaching methods.
Our lead essayist this month is Greg Lukianoff of the Foundation for Individual Rights in Education. He charges that the federal government is partly to blame for the troubled recent history of free speech on college campuses, while noting that students themselves have often requested - and received - strict limits on the speech of their peers.
Are these genuine problems? If so, what is their scope, and what is to be done? Joining us this month are Eric Posner of the University of Chicago Law School and Catherine J. Ross of George Washington University Law School. Each will reply to Lukianoff in turn, and a discussion will follow through the end of the month. We hope you’ll join us and comment as the issue progresses.
Campus Free Speech Has Been in Trouble for a Long Time
2015 will be remembered as a year in which campus free speech issues took center stage, receiving extensive coverage in outlets like The New York Times, Wall Street Journal, The Atlantic, Slate, Vox, and Salon. Even President Obama voiced concerns about the lack of debate on college campuses.
For those of us who have been fighting campus censors for years, it’s hard not to ask: “Where has everyone been?”
My organization, the Foundation for Individual Rights in Education (FIRE), has been defending freedom of expression on campus since 1999. We can attest that free speech, open inquiry, and academic freedom have always been threatened on campus by one force or another, even long before we were founded.
Most people are familiar with the supposed heyday of political correctness of the 1980s and 90s, but there is a popular misconception that speech codes and censorship were defeated in the courts of law and public opinion by the mid-90s. In reality, the threats to campus speech never went away. Before examining what has changed to alarm the public—rightfully—about the state of open discourse in higher education, it’s important to note what hasn’t changed.
Speech Codes and Political Correctness Never Went Away
Scholars, including First Amendment expert Robert O’Neil, claim that politically correct speech codes were given a “decent burial” in the mid-90s. But despite being repeatedly defeated in court, speech codes became the rule rather than the exception on campus.
FIRE has been tracking and rating speech codes at hundreds of colleges and universities since 2006. Eight years ago, 75 percent of the institutions we surveyed maintained policies worthy of FIRE’s “red light” rating, meaning they clearly and substantially restricted freedom of speech. Since then, the percentage of schools with red light speech codes has steadily declined each year.
This good news is due, at least in part, to FIRE’s aggressive campaigning and lawsuits. Over the past few years, the number of campuses with red light policies decreased from 62.1 percent (2013) to 55.2 percent (2015). And, in FIRE’s 2016 speech code report, that figure is below 50 percent (49.3 percent) for the first time. Unfortunately, this may be only a temporary high-water mark; pressure from students and the federal government makes the resurgence of speech codes almost inevitable.
The past 15 years are rife with examples of speech-policing. There are the classic political correctness cases, such as the 2004 incident in which a University of New Hampshire student was evicted from his dorm for posting flyers joking that freshman women could lose the “Freshman 15” by walking up the dormitory stairs. In 2009, Yale University students were told they shouldn’t quote F. Scott Fitzgerald, and Bucknell University students were forbidden from handing out “Obama Stimulus Dollars.”
But many cases do not follow the “PC” mold and just involve old-fashioned abuses of power. Examples include the University of Wisconsin-Stout’s censorship of a professor’s “Firefly” poster, Central New Mexico Community College’s shutdown of a student newspaper for publishing a “Sex Issue,” and former Valdosta State University student Hayden Barnes’ unjust expulsion for protesting a parking garage (which led to an eight-year-long legal battle that finally concluded in 2015).
Federal Antidiscrimination Law as the Secret Engine of Campus Censorship
Some trends that long precede (and may explain) the current threats to campus free speech include the massive expansion of the bureaucratic class at universities, which officially began outnumbering the number of full-time instructors in 2005, and the rise of the “risk management” industry, which makes a fortune teaching universities how to avoid lawsuits by regulating almost every aspect of student life.
This brings us to the institution that is perhaps most responsible for exacerbating the problems of speech codes and hair-trigger censorship: the Department of Education’s Office for Civil Rights (OCR).
By the late 1980s, colleges were adopting “anti-harassment” codes that restricted protected speech. In the mid-1990s, the campus speech code phenomenon converged with the expansion of federal anti-discrimination law by the Department of Education’s Office for Civil Rights (OCR). OCR encouraged and even required harassment codes, and although its guidance tried to “balance” the need for these codes with the First Amendment, by the time FIRE was founded in 1999, universities were using the “federal government made me do it” excuse to justify even the most laughably unconstitutional speech codes.
In 2003, in perhaps its most redeeming moment, OCR issued a letter clarifying that it has no power to mandate that universities—public or private—police speech that is protected under the First Amendment. OCR explained that public universities, which are bound by the First Amendment, cannot ban merely offensive speech. And if private universities, which are not bound by the First Amendment (except in California through the Leonard Law), pass such speech codes, OCR made clear that they can in no way argue that the federal government forced their hand.
This message was never fully accepted by campus administrators, who wanted expansive speech codes, or by risk managers, who believed it was safer to discourage offensive speech than face a lawsuit. Nonetheless, the 2003 letter did help defuse an old excuse.
Unfortunately, the Department of Education under the Obama administration has been much more aggressive, granting itself new powers and redefining harassment in such broad language that virtually any offensive speech could be considered a matter of federal oversight.
In May 2013, OCR and the Department of Justice (DOJ) entered into a resolution agreement with the University of Montana that the agencies deemed “a blueprint for colleges and universities throughout the country.” This “blueprint” mandates an extraordinarily broad definition of sexual harassment: “any unwelcome conduct of a sexual nature,” including “verbal conduct”—i.e., speech. The blueprint holds that this conduct need not be “objectively offensive” to constitute sexual harassment. This means that if a listener takes offense to any sex- or gender-related speech, no matter how irrationally or unreasonably, the speaker has engaged in sexual harassment. Additionally, the final UM policy reviewed and approved by OCR and DOJ as part of their resolution agreement goes beyond policing sex-related speech by also prohibiting discriminatory harassment on the basis of 17 different categories, including “political ideas.”
Treating this resolution agreement as a “blueprint” puts public universities in an impossible situation: violate the First Amendment or risk investigation and the possible loss of federal funding.
OCR backed away from its characterization of the Montana agreement as a “blueprint” in a November 2013 letter to me. But unlike the clarification it issued in 2003, OCR has never communicated this to universities. As a result, as universities revise their sexual misconduct policies, they now include the blueprint’s definition of sexual harassment. There can be little doubt that the number of institutions doing so will only increase until OCR clarifies that it cannot require universities to adopt such a definition.
OCR is unlikely to forego unconstitutional speech-policing any time soon. In October, OCR announced that it would open a Title IX investigation into the University of Mary Washington after students filed a complaint about the school’s handling of sexist and racist Yik Yak posts. If this investigation leads to new federal “guidance” on colleges’ responsibility to police students’ social media activity, even more protected campus speech could be threatened.
What Has Changed: Students Using Their Free Speech to Limit Free Speech
Media coverage of the campus free speech crisis exploded in 2014 after a rash of “disinvitations”—student and faculty attempts to disinvite controversial speakers from campus, including former Secretary of State Condoleezza Rice and International Monetary Fund head Christine Lagarde.
Attention from the media has increased as more student-led efforts have gained popularity, such as demands for “trigger warnings” and “safe spaces,” and efforts to police so-called “microaggressions.” Critiquing PC culture is nothing new for conservative outlets, but even left-leaning authors at the New Republic, The Nation, New York Magazine, and The New York Times have been writing extensively about how these trends reflect very new, often alarming student attitudes about open discourse.
In my 15 years at FIRE, students have historically been the most reliably pro-free-speech constituency on campus. Students often showed more common sense than the professoriate, and certainly much more than the administrators.
But when stories about campus race-related protests inundated the news in the fall of 2015, I knew something had changed. It began when students at Wesleyan University demanded that the school’s primary student newspaper be defunded after it published a student op-ed that was critical of the Black Lives Matter movement. Shortly after, Wesleyan’s student government unanimously approved a resolution that will tentatively cut the paper’s printing budget by half.
Things escalated when I saw firsthand that Yale students were demanding the resignations of two faculty members for sending out an email that questioned whether universities should tell students what they should or shouldn’t wear as Halloween costumes. Then, just days later, student protests at the University of Missouri soured when protesters manhandled a student journalist.
These protests put First Amendment defenders and free speech advocates like me in a somewhat difficult position. Of course, I’m supportive of students exercising their free speech rights. Indeed, I find it refreshing that students have overcome their oft-diagnosed apathy towards serious social issues. However, it’s distressing that many of the protesters are using their free speech to demand limitations on others’ free speech. The irony of these demands was particularly prominent at the University of Missouri, where FIRE recently helped pass a state law making it illegal to limit free speech activities on public university campuses to tiny zones. This new law helped make the Mizzou students’ protests possible. But in a twist, the protesters created their own free speech exclusion zone to prevent media from covering the protest.
Now student protestors at at least 75 American colleges and universities have released lists of demands “to end systemic and structural racism on campus.” Although this is a laudable goal, a troubling number of these demands would prohibit or chill campus speech.
For example, many of the demands try to make the expression of racial bias, which is generally protected speech, a punishable offense. At Johns Hopkins University, protesters demand “impactful repercussions” for anyone who makes “Black students uncomfortable or unsafe for racial reasons.” Similarly, protesters at Georgia’s Kennesaw State University demand “strong repercussions and sanctions” for those who commit “racist actions and racial bias on campus.” And Emory University protestors want a bias response reporting system and sanctions for even “unintentional” acts or behaviors, including “gestures.”
Others go as far as to mandate that universities forbid “hate speech.” At Missouri State University, protesters demand that administrators announce a “commitment to differentiating ‘hate speech’ from ‘freedom of speech.’” Protesters at Dartmouth College want “a policy with serious consequences against hate speech/crimes (e.g. Greek house expelled for racist parties).” Similarly, student protesters at the University of Wyoming demand that the code of conduct be revised to hold students accountable for hate speech, complete with “a detailed reporting structure.”
The evidence that today’s students value freedom of speech less than their elders is not just anecdotal. In October, Yale University’s William F. Buckley, Jr. Program released a survey that found that 51 percent of U.S. college students favor campus speech codes, and that 72 percent support disciplinary action against “any student or faculty member on campus who uses language that is considered racist, sexist, homophobic or otherwise offensive.” These troubling results were echoed by a November 2015 global survey from Pew Research Center finding that a whopping 40 percent of U.S. millennials [ages 18–34] believe the government should be able to punish speech offensive to minority groups (as compared to only 12 percent of the Silent generation [70–87 year-olds], 24 percent of the Boomer generation [51–69 year-olds], and 27 percent of Gen Xers [35–50 year-olds]).
Thankfully, through old strategies and new ones, we can improve the climate for free speech on campus. Just one student or professor can protect free expression for thousands, or even hundreds of thousands, by filing a lawsuit against his or her school with the help of FIRE’s Stand Up For Speech Litigation Project. SUFS is undefeated so far and has resulted in seven settlements that send the clear message to institutions that it will be expensive to ignore their obligations under the First Amendment. What’s more, with every speech-protective judgment, it becomes harder for administrators to defend themselves with “qualified immunity,” which shields individuals from personal liability where the law isn’t clear.
Litigation might also be our best shot at forcing OCR to step back from its efforts to coerce institutions into adopting unconstitutional policies. Clearer and narrower policies than OCR’s May 2013 definition of “sexual harassment” have been struck down in court on numerous occasions. But until institutions see a real threat of an expensive judgment against them for overbroad harassment policies, they’ll continue to be motivated by the threat of OCR pulling their funding for what it seems to consider underbroad policies—i.e., colleges will err on the side of prohibiting protected expression.
And because money talks, alumni should withhold donations to institutions that break the law or renege on promises to respect students’ and professors’ rights. And of course, anyone can contact his or her legislators and ask them to support bills—like the ones FIRE helped enact in Missouri and Virginia—that ensure students may fully exercise their free speech rights on public campuses statewide.
These strategies may motivate schools to make quick changes, but free speech advocates know that long-lasting progress comes through cultural change. How do we teach a generation about the value of free expression when speech is too often presented as a problem to be overcome, rather than part of the solution to many social ills? This is our great challenge, and it must be faced with both determination and creativity if the always-fragile right of freedom of speech is to endure.
Campus Free Speech Problems Are Less Than Meets the Eye
I don’t like political correctness any more than Greg Lukianoff does, but he exaggerates the problem and unfairly blames universities when the problem really lies with students.
There are 5,300 colleges and universities in the United States. They educate approximately 20 million students every year. It is hardly surprising that campus administrators who enforce the rules blunder from time to time. In most of Lukianoff’s examples, the student (or professor, in one case) engaged in speech that was on the margin of other activities that are appropriately regulated, such as distributing leaflets and threatening students or faculty. The universities overreacted, but errors are unavoidable. He does not cite an example of a university punishing a student for merely expressing a view that people regard as offensive—Holocaust denial, or white supremacy, or criticism of Muslims, or opposition to affirmative action, or whatever. Moreover, nearly all of Lukianoff’s examples of quasi-censorship take place outside of the university’s core education and research mission. We’re talking about students complaining about how they are treated outside of class, not in it, often at the hands of other students or student organizations.
As a law professor, I teach students who are graduates of colleges all around the country. I’ve taken to quizzing them about political correctness and censorship in their colleges. None of them have recounted classmates being punished by administrators for expressing their views. None of them have said that they refrained from expressing a view because of fears that the university would punish them. The few anecdotes I have heard from my students are, like Lukianoff’s, borderline cases where a student expresses views in a way that may threaten campus order, safety, and security. (One such example involved a student who made a bonfire of his books—apparently to express his sentiments about his education, but in a way that understandably caused concern to administrators.) The major threat to free discussion on campus is the ideological conformity of students—who are afraid of losing friends and being hassled by peers if they express ideologically idiosyncratic views—and not university administrators, who are mostly passive and remote.
While it is true that most universities have speech codes, these codes are designed not to stifle but to enhance discussion by discouraging students from being rude to each other. One of the oddities of the American university is that students are expected to live together and not just attend classes together. Universities’ understandable but obsessive genuflection to the god of diversity means that students of radically different backgrounds and attitudes are thrown together. The idea is that they are supposed to learn from each other; the reality is that everyone must constantly be on his guard because it is so easy to inadvertently offend someone from a different background by innocently expressing one’s opinion. While Lukianoff and I can retreat from the public square to the privacy of our homes if we find public debate offensive, students who live in dorms have no such option. This is why students so frequently self-segregate by joining fraternities and clubs, and by moving off campus when allowed to. In this way, they act no differently from most Americans who self-segregate by moving to homogenous neighborhoods.
But self-segregation within the university can go only so far, and this is why universities insist on the authority to punish students who “harass” each other—meaning who fail to be reasonably polite to each other. This is regulation of manners, not of speech or opinion—in the spirit of time, place, and manner regulations that governments are permitted to impose even under the strict doctrines of First Amendment law. University speech codes (at least, in private universities) go farther because campus life is different from public life. If a white student insists on telling his black roommate that affirmative action is wrong, I doubt any administrator would consider this a violation of speech codes. If instead he calls his roommate racial epithets, I suspect the university would intervene. I don’t know whether Lukianoff would regard this as a violation of the white student’s freedom of speech, but it would be ridiculous to require the black student to tolerate this boorish behavior.
Universities approach this problem in many ways. As Lukianoff mentions, some universities leave students to themselves; others use speech codes. The speech codes vary tremendously, as do the punishments that are meted out for violations. The perplexing thing about Lukianoff is that he dogmatically insists that all universities follow exactly the approach he advocates.
While Lukianoff may be right that an everything-goes approach may ultimately be best for students, he provides no evidence for this view, and this is because there is no such evidence, one way or the other. It’s certainly not the approach used in the classroom. Teachers almost never permit students to express themselves in a hostile, rude, or insensitive way. This is not some new-fangled, PC-inflected innovation; anyone who has taught a class or been a student knows that willfully obnoxious behavior interferes with learning. Offensive speech gets students riled up and deters them from taking unfamiliar ideas seriously.
The regulation of speech outside the classroom is trickier. Various forms of speech regulation may be appropriate for different groups of students. Universities have figured this out, and in fact there is great diversity in how universities regulate speech. Many religious universities, for example, require, or at least say they require, students to keep theologically disreputable views to themselves. Some forbid cursing. While I wouldn’t have wanted to attend such institutions, I see no reason why students shouldn’t attend them if they want to.
The intellectual basis of freedom of speech is epistemic humility—the notion that since we cannot be confident that we know the truth, we need to allow people to debate it. But then we must also acknowledge that we don’t and can’t know the best rules for promoting those debates. That’s why, in fact, the First Amendment allows people to form collectivities like newspapers, think tanks, and political parties where the institution itself embodies a certain viewpoint, and all who participate in the institution can be required to accept it (or at least pretend to accept it). We allow liberal newspapers and conservative newspapers rather than requiring all newspapers to publish diverse political views because we think that restrictions of speech within institutions may promote freedom of speech across institutions. The same logic applies to universities, whose leaders should be allowed to experiment in the same way.
Lukianoff doesn’t see this because he imagines that free speech is a good in itself. In fact, freedom of speech is a means to an end, and our understanding of free speech must be derived from the end that we seek to achieve. In politics, that end is good governance and political competition. In education, that end is—education. The recent student demands for limitations on freedom of speech—demands that, as he concedes, put him in a “somewhat difficult position”—flummox Lukianoff because free speech is on both sides of the issue. Should he support the students because they exercise freedom of speech, or oppose them because they want to restrict it? He resolves this contradiction by, in effect, arguing that the students should be free to demand speech restrictions as long as universities refuse to submit. But that’s a cop-out. If you know in advance that no one will take seriously your speech, your right to freedom of speech is empty.
However, in the Atlantic article that he coauthored with psychologist Jonathan Haidt, Lukianoff does make an argument against restrictions on campus speech based on a specific educational philosophy. Haidt and Lukianoff argue that efforts by students to restrict speech will, if accepted by universities and embodied in speech codes, cause psychological harm to students, and interfere with their education, by protecting them from dangerous ideas rather than forcing them to confront and understand them. The authors may be correct, but it is important to understand that they are taking a specific and contestable position on how universities should teach and how campus life should be regulated. The only way to know whether they are right or wrong is to allow universities to try different approaches, so that we can use evidence to determine which approach is best. Lukianoff the free speech advocate and Lukianoff the educational philosopher are on opposite sides of the question.
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.
Getting Started: Where Posner and I Agree (and Disagree)
Before diving into a detailed response to Eric Posner’s piece, “Campus Free Speech Problems Are Less Than Meets the Eye,” I want to get a few things out of the way.
First of all, I’d like to thank Cato and Jason Kuznicki for hosting this online debate on such an important topic. When Jason initially asked me to participate, I very nearly gave him a regretful “no” because I was set to be on paternity leave for the birth of my first child during the response period. Jason was very understanding and agreed to allow several of FIRE’s top lawyers to handle parts of the discussion that will ensue here. So some of the forthcoming responses will be authored or co-authored by FIRE staff members: Will Creeley, Vice President of Legal and Public Advocacy; Samantha Harris, Director of Policy Research; and Susan Kruth, Senior Program Officer for Legal and Public Advocacy.
I also wanted to thank Catherine Ross for her contribution to the debate and her defense of free speech at every level of education. While Catherine suggests FIRE is overstating the problem, I think our responses over the rest of the month will demonstrate conclusively that we aren’t. After all, administrators have to be pretty far gone before telling students that they can’t protest the NSA, can’t support veganism, or can’t hand out the Constitution without asking state permission. They have to be pretty far gone to tell students to restrict themselves to a tiny “zone” on campus and to require students to wear a name badge verifying their right to speak freely at a public university. But at any rate, I greatly enjoyed her piece. I especially appreciated her refutation of the frankly odd idea that saying that someone has a First Amendment right to ask for restriction on the First Amendment is somehow a “cop out.”
And I’d also like to sincerely thank Eric Posner. Some might be surprised to hear that, given how Posner has become a sort of go-to contrarian voice on all things related to the First Amendment. For example, he has criticized the emphasis Americans place on the First Amendment, argued that the Charlie Hebdo attacks could have been prevented if the magazine had been punished under hate speech laws, suggested that college students are children who must be protected from offensive speech, defended the NSA’s metadata collection program, and, most recently, supported restrictions on the Internet as a means to combat ISIS and other terrorist groups.
But even though Posner and I disagree an awful lot, I truly appreciate the opportunity to debate and discuss free speech, a topic I hold near and dear to my heart. In fact, I’ve had the pleasure of debating Posner several times in recent years—critiquing his support for blasphemy laws, for example, and taking on his assertions that the “sacred status” of the First Amendment is some kind of new phenomenon. And in 2014, Jonathan Rauch and I debated Posner and Stanley Fish on the nature and role of freedom of expression:
Frankly, I’m happy to have someone to argue against. In my experience, hostility to relatively purist views on freedom of speech is quite common in higher education, but few academics or administrators are willing to publicly defend this point of view. This fact is evidenced by my first point of agreement with Posner, his admission that “most universities have speech codes.”
Given that speech codes have been routinely ruled unconstitutional at public colleges or withdrawn in the face of public ridicule at private colleges, the fact that so many institutions still maintain these codes indicates that many of the people running our universities are hostile to the First Amendment, or, in the case of private colleges, First Amendment values.
That being said, in the hundreds of speeches I have given on college campuses, whenever people look for someone for me to debate on campus, I rarely find anyone who is willing to openly disagree with my defense of robust protections for freedom of speech. Even when I’m given an opponent in a debate, he or she often mostly agrees with me, or at least claims to. This is, of course, frustrating, because if universities actually respected free speech values as much as they claim to, speech codes wouldn’t still be a problem. That’s why I appreciate that a professor is willing to come forward and defend publicly what I believe so many faculty members and certainly administrators believe privately. This is no small task, given that although there have been disturbing poll numbers about millennials’ attitudes concerning freedom of speech, an anti-free speech position is generally still a pretty unpopular position to take off-campus.
Another point of agreement I have with Posner is that the intellectual basis of freedom of speech is “epistemic humility,” which, as I explain in my short book Freedom From Speech, is my “fancy way of saying that we must always keep in mind that we could be wrong or, at least, that we can always learn something from listening to the other side.” Epistemic humility encourages healthy intellectual habits, such as reserving judgment, giving the other side a fair hearing, and tolerating opinions that offend or anger us.
But there isn’t too much agreement between us beyond that. Before going into detail about the many things we disagree about, I want to address Posner’s overarching assertion that I “unfairly [blame] universities when the problem really lies with students.” If you want an even more over-simplified explanation of my alleged viewpoint, he summarized it on his own blog thusly:
GREG LUKIANOFF AND I DEBATE CAMPUS SPEECH
Him: campus speech is under assault by clueless university administrators.
Me: blame the students.
I confess, after reading that, I have to wonder if Posner actually read what I wrote. His summary mischaracterizes my lead essay. My point was that, yes, for most of my career the main people we at FIRE battled were administrators. Sometimes the censorship was also pushed for by faculty, and sometimes by students, but for most of my career students tended to be more reliably pro-free speech than any other campus group. This has changed appreciably only in the last two years or so. So Posner and I actually both agree that student sentiment against free speech is a problem. But to deny that administrative overreach is also a problem just strikes me as willfully ignoring lawsuit after lawsuit and incident after incident. As you will see in forthcoming examples, there are just too many instances of administrative censorship that Posner chose to ignore.
The most jarring thing about this assertion is that it’s just that—an assertion. And when you look at Posner’s response, it seems his assertion is based solely on his experience as a professor at the University of Chicago. My beliefs, on the other hand, are based on FIRE’s experience being on the front lines of free speech controversies taking place on American college campuses over the last 17 years. We at FIRE have looked at literally thousands of cases over the years since we were founded in 1999. Last year alone we received over 800 case submissions, and that does not include many of the cases we have discovered via the media, nor the hundred or so additional schools that are currently facing campus protests, some of which include student demands for new speech codes.
If I were to base my opinion of the issue just on my experience co-teaching a class on First Amendment law at George Mason University, I hopefully would at least qualify a blanket assertion like Posner’s with something to the effect of, “Administrators don’t punish student speech—that is, in my limited experience, based on what my University of Chicago students say, and not knowing whether any of my students would actually tell me if they’d been brought up on charges by administrators in law school or in their undergraduate career.” Posner, however, feels no such compulsion. Somehow he just knows it has to be students who are the problem, not administrators.
Over the next several posts, we’ll be taking on a few more assertions Posner makes. I hope you’ll tune in, because I think the discussion will be fun.
The Pointlessness of Anecdotes
Greg Lukianoff is like an undertaker who, because he sees dead bodies all day long in his place of business, thinks that a plague has struck the city. It’s pointless to talk about anecdotes if we want to know how severe the problem of campus censorship is. FIRE should retain an independent polling firm to conduct a survey of college students. It should ask them whether they or their classmates have been punished by university authorities for making politically controversial statements on campus. After the poll results are in, I would be happy to continue the debate about whether a problem exists or not. In the meantime, I’m inclined to believe my students, who have no reason to lie to me, and who are closer to a representative sample of college undergraduates than the people from whom FIRE receives complaints.
Beyond that, I hope that we can agree to debate things that we disagree about, and not things we agree about. I tried to make it clear in my opening essay that I’m not going to criticize or defend students who want to restrict speech. I’m only interested in the question how campus authorities should regulate speech. 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. Third, First Amendment doctrine reflects judgments, tradeoffs, and compromises by justices addressing conflicts that, 99% of the time, arose outside of campus. I don’t see how it can provide much guidance for resolving the conflicts that arise on campus.
I hope the starting point for debate will be this: how can universities best achieve their mission, which is to produce, retain, and transmit knowledge? I think we can agree, at least for purposes of this discussion, that university administrators should not try to censor research or interfere with teaching. We are talking, then, about the limited case of student living arrangements, student groups, public speakers, student protests, and the like. Many of Lukianoff and Ross’ comments extend far beyond this topic.
(For the record, while Lukianoff thinks that I support blasphemy laws, I don’t!)
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.
An Argument That Hasn’t Been Answered
Kruth says Lukianoff cited two surveys; Ross says FIRE doesn’t need a survey. But the surveys Kruth cites are irrelevant because they do not ask the relevant question. I can’t tell whether Ross opposes a survey because she thinks the truth is obvious or because she thinks there is no way to know the truth. I differ on both.
Ross says the issue is not the “First Amendment” but “First Amendment values.” She has to: if all she cared about is the First Amendment, then she couldn’t object to speech codes in private universities because private universities’ speech codes are protected by the First Amendment. So she says she means values. But if private university speech codes are protected by the First Amendment, then why aren’t private university speech codes also protected by First Amendment values? Clearly they are—and for the reason I discussed in my first post (one of only two arguments I made, and it still has not received a response):
We allow liberal newspapers and conservative newspapers rather than requiring all newspapers to publish diverse political views because we think that restrictions of speech within institutions may promote freedom of speech across institutions. The logic applies to universities, whose leaders should be allowed to experiment in the same way.
I want to offer a hypothetical for the group. A conservative student writes an article in the student newspaper opposing affirmative action, or condemning Islam, or denying the existence of a “rape culture,” or praising Donald Trump, or what have you. He is the only conservative who writes for the newspaper and one of the few (perhaps the only) outspoken conservative students on campus. A group of left-wing students, under cloak of anonymity, distribute vicious leaflets that call him various and sundry names. Their goal, likely to be successful because of students’ sensitivities to one another’s good opinion, is to shut down the expression of conservative opinion on campus. Question: should the university try to identify the authors of the leaflets and discipline them for violating a speech code that forbids “harassment”?
I say yes, for this reason, so ably articulated elsewhere:
Attempts to shield students from words, ideas, and people that might cause them emotional discomfort are bad for the students. They are bad for the workplace, which will be mired in unending litigation if student expectations of safety are carried forward. And they are bad for American democracy, which is already paralyzed by worsening partisanship. When the ideas, values, and speech of the other side are seen not just as wrong but as willfully aggressive toward innocent victims, it is hard to imagine the kind of mutual respect, negotiation, and compromise that are needed to make politics a positive-sum game.
Kruth, Ross, and Lukianoff are right to worry about campus speech but underestimate the complexities that universities face even if we ignore their many other responsibilities (above all, ensuring that students actually learn something in their studies, a responsibility that seems to have been lost in the debates over campus speech), and assume all they were supposed to do is advance “First Amendment values.”
Time, Place, and Good Manners!?
My thanks to Catherine Ross for both her great responses and her congratulations on the new baby. Also, thanks to Susan Kruth for her response to Posner. I’ve decided to emerge from my paternity leave in order to make some points that I think need to be emphasized. Ross effectively addressed Posner’s assertion that this discussion was actually supposed to be about topics of his choosing rather than the larger issue of, well, “Free Speech on College Campuses.” Nonetheless, I would like to address several of Posner’s claims about the law of free speech, including the “manner” part of the First Amendment’s allowable “time, place, and manner” regulations on speech; the appropriate scope of “harassment” regulations; the issue of free speech in dorms; and his most recent hypothetical.
In Posner’s initial response to my lead article, he concedes that universities claim the “authority to punish students who … fail to be reasonably polite to each other” under the guise of “harassment” policies, but then he characterizes such action as a “regulation of manners, not of speech or opinion—in the spirit of time, place, and manner regulations that governments are permitted to impose even under the strict doctrines of First Amendment law.” I entirely agree with Ross, “Posner is wrong.”
The “manner” in “time, place, and manner” refers to whether the method of communication—completely disregarding the content of the speech—is inherently disruptive, like using a megaphone outside someone’s dorm window. As Catherine Ross aptly points out, “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.” If a university punishes a student for his “manners” in the sense of conforming to social norms, the institution is absolutely making a distinction based on the content or viewpoint of that student’s speech. The Supreme Court has been unambiguous about this, stating in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973), that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’” “Conventions of decency”—in other words, manners. And keep in mind that in the Papish case, the Court deemed the word “motherfucker,” as well as a cartoon of cops raping the Statue of Liberty and the Goddess of Justice, to be protected under the First Amendment. That’s hardly polite speech.
It is one of the most clearly established precepts in First Amendment law that official power may not be used to impose Eric Posner’s or anyone else’s definition of politeness. The Supreme Court said as much in the seminal 1989 flag-burning case Texas v. Johnson, 491 U.S. 397, 414 (1989): “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Indeed, some of the most quoted lines in First Amendment history illustrate this principle. In upholding the right of a Vietnam War protester to enter a courthouse wearing a jacket emblazoned with the words “Fuck the Draft,” the Court wrote that “one man’s vulgarity is another’s lyric.” Cohen v. California, 403 U.S. 15, 25 (1971). And in upholding the right of the Westboro Baptist Church to picket military funerals, the Court wrote:
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.
Snyder v. Phelps, 562 U.S. 443, 460-61 (2011).
Further, a central requirement of the First Amendment, grounded in basic principles of due process, is that prohibitions on speech need to “give [a] person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Time, place, and manner restrictions on campus, properly written, give students a clear idea about the limitations they face in speaking. Again, for example, “no megaphones” is unambiguous. But how would a student know what he may or may not say if he is required to be “reasonably polite” to his peers? Such a vague standard would likely lead to students being punished for speech they had no idea would be taken badly, or to students self-censoring to avoid the risk, or both. In fact, since 1989, these kinds of vague standards have been challenged in dozens of cases, and routinely overturned or withdrawn in the face of a lawsuit.
Posner argues that speech codes should be permissible because they are well-intentioned and “designed not to stifle but to enhance discussion by discouraging students from being rude to each other.” This is an overgeneralization if there ever was one. Many speech codes have nothing to do with politeness, but rather, regulate the minutiae of campus life. Susan Kruth and I have already given examples of speech zone policies, which only serve to keep basic speech out of the view of most students and administrators.
And Posner thinks speech codes are necessary to avoid offensive speech in college dorms, where “students of radically different backgrounds and attitudes are thrown together.” He argues that while he and I can “retreat from the public square to the privacy of our homes if we find public debate offensive, students who live in dorms have no such option.” To Posner, that’s why colleges “insist on the authority to punish students who ‘harass’ each other—meaning who fail to be reasonably polite to each other.” To justify speech codes in dorms, Posner cites the example of the white student who directs racial epithets at his black roommate—a straw man because such conduct, in that context, would likely constitute the kind of “severe, pervasive, and objectively offensive” harassment that universities can (and, in fact, must) prohibit without resorting to overly broad speech codes. Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999).The “Davis standard” is a standard that FIRE has supported in public so many times that I am surprised Posner seems to be unfamiliar with it. In the real world, such serious student conflicts are often spotted in advance and a minority student placed with a racist roommate would likely be granted a quick roommate swap, and the racist student would face condemnation by his classmates, even before you had to deploy the harassment code.
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.
Also, it’s worth noting that the U.S. Court of Appeals for the Third Circuit addressed this very question of speech codes in student dorms in the 2010 case McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010). Interestingly—and contra Posner—the Third Circuit cited dorm restrictions as an argument against speech codes, because students would be unable to “retreat” to the privacy of their homes to speak their minds freely. The court observed:
Finally, university students, unlike public elementary and high school students, often reside in dormitories on campus, so they remain subject to university rules at almost all hours of the day. The concept of the “schoolhouse gate,” Tinker, 393 U.S. at 506, 89 S.Ct. 733, and the idea that students may lose some aspects of their First Amendment right to freedom of speech while in school, id. at 507, 89 S.Ct. 733, does not translate well to an environment where the student is constantly within the confines of the schoolhouse. “Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact.” Id. at 513, 89 S.Ct. 733. Yet this is exactly what would occur for students residing on university campuses were we to grant public university administrators the speech-prohibiting power afforded to public elementary and high school administrators. Those students would constantly be subject to a circumscription of their free speech rights due to university rules.
McCauley, 618 F.3d at 247.
Again on the topic of harassment, in his latest response Posner poses another hypothetical in addition to the epithet-spewing roommate: what if an anonymous group of “left-wing” students distributed “vicious leaflets” calling a conservative student journalist names? Posner believes that should be punishable harassment, and he asks if I would agree. Without more detailed facts, however, it is impossible to respond fully. There is absolutely no question that the left-wing students have the right to protest the student journalist by distributing critical, even “vicious,” leaflets. No credible free speech advocate would argue that the right to free speech includes a right to be free from the social consequences of that speech, including vociferous opposition. If, however, the “various and sundry” insults in the leaflet falsely accused the student of, say, criminal wrongdoing, if the leaflet suggested a violent response to the author, or if the insults were directed at the student in such a severe and ongoing way that he was effectively unable to function at the university, then the protesters’ speech might be unprotected harassment, intimidation, or defamation, or other forms of unprotected speech. But without more facts than Posner’s hypothetical offers, I would not say the university should try to identify and punish the leafleters.
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.
Letters to the Editor
Campus Free Speech Problems Are More Than Meets the Eye
Note: We are pleased to print this response from Susan Kruth of the Foundation for Individual Rights in Education.
Last week, FIRE President and CEO Greg Lukianoff began to respond to Eric Posner’s piece, “Campus Free Speech Problems Are Less Than Meets the Eye.” In his response to Lukianoff yesterday, Posner suggests that FIRE retain a polling firm to ask about censorship on campus—ignoring the fact that Greg cited two polls in his first post! For more data on how people feel about voicing dissenting opinions on campus, see this dispiriting 2010 poll that Greg has often cited in recent years from the Association of American Colleges & Universities. It found that only 16.7% of faculty strongly agreed that it’s “safe” to hold unpopular viewpoints on campus. Only 35% of students felt that way, and seniors were far less inclined to agree than freshmen. In other words, the longer people were on campus, the less likely they were to be confident that unpopular viewpoints could be safely held. And this data is from 2010—given the recent wave of illiberal demands that people step down or leave campus for what they say or believe, the numbers would likely be worse today.
But it’s important to address Posner’s assertions one at a time. Before moving on to his latest response, I want to correct the record on his initial post. So today, I will address specific arguments that I believe ignore the incredible quantity and variety of calls for censorship of speech on college campuses nationwide.
Back in his January 8 post, Posner first claimed that FIRE exaggerates the scope of campus censorship. Posner argued that with millions of students attending thousands of colleges, “[i]t is hardly surprising that campus administrators who enforce the rules blunder from time to time.” But unfortunately, campus censorship happens all the time, not just “from time to time.” If the examples of censorship Greg cited in his lead essay were intended to provide a comprehensive list, then perhaps Posner’s remark would be apt. Unfortunately, those instances are just the tip of the iceberg. Many, many more are documented in Greg’s books, Unlearning Liberty: Campus Censorship and the End of American Debate and Freedom From Speech, and certainly in our case archives.
Posner offers administrative censors an undeserved forgiveness, characterizing their efforts to silence students as mere “blunders” or simple mistakes on tough questions of law. For example, early in his response to Greg’s piece, Posner asserts that “[i]n most of Lukianoff’s examples, the student (or professor, in one case) engaged in speech that was on the margin of other activities that are appropriately regulated, such as distributing leaflets and threatening students or faculty. The universities overreacted, but errors are unavoidable.” Are they?
Distributing literature—a classic example of civic engagement, at the heart of many FIRE cases—is hardly “on the margin” of protected speech. It’s among the least disruptive methods of trying to spread a message on campus. It’s quiet; it’s safe; it’s easy to ignore if one is disinterested or in a hurry. In the vast majority of circumstances, it poses no threat whatsoever to the functioning of the school. In Lovell v. City of Griffin, 303 U.S. 444 (1938), the Supreme Court struck down a city-wide ban on distribution of literature without the City Manager’s permission. In doing so, it emphasized the important role leaflets have played throughout history:
The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion. What we have had recent occasion to say with respect to the vital importance of protecting this essential liberty from every sort of infringement need not be repeated.
So requiring a permit for such activity or restricting it to a tiny area of campus—as Modesto Junior College and the University of Hawaii at Hilo did, and as many other institutions still do—is not a reasonable or justifiable restriction on expression at public colleges and universities.
Nor is this an “unavoidable” error. Leafleting cases often involve “free speech zone” policies—policies that one presumes were deliberately implemented after consideration by administrators. This isn’t the case of an administrator making a split-second judgment call in exigent circumstances. Rather, these policies reflect an unacceptable failure to recognize well-settled law. The fact that colleges are quick to settle FIRE’s lawsuits challenging the constitutionality free speech zones in court suggests that at least someone working for these institutions knows that the law isn’t ambiguous. Those that don’t know it should. Take the University of Cincinnati, which for years maintained a flatly unconstitutional free speech zone policy that FIRE named a Speech Code of the Month back in 2007. The university refused to change this policy after a letter from FIRE sent in 2008, and a student group subsequently sued the school (with help from FIRE and the 1851 Center for Constitutional Law) in federal court for violating students’ First Amendment rights. In 2012, the students won their case; the policy was found unconstitutional. The whole story is documented in this FIRE video:
The University of Cincinnati’s free speech zone policy, and the resulting loss in court, cannot be called “unavoidable” with a straight face.
To be sure, circumstances exist where an interest in safety clashes with an interest in free speech. For example, Posner cites a case involving “a student who made a bonfire of his books—apparently to express his sentiments about his education, but in a way that understandably caused concern to administrators.” But FIRE overwhelmingly handles cases that are not “borderline” and that do not implicate “campus order, safety, and security,” as Posner alleged. There’s nothing borderline about a public university attempting to censor professors’ criticism of the administration, a student being threatened with removal from campus for petitioning against NSA surveillance, a student newspaper that was investigated for nearly a year for two articles. Any FIRE staffer could go on and on with examples—as could Posner, if he had visited our website.
After suggesting that FIRE’s cases are either honest mistakes by a precious few administrators or really borderline questions of law, Posner then suggests that universities simply don’t punish speech for being offensive. He writes, “[Greg] does not cite an example of a university punishing a student for merely expressing a view that people regard as offensive—Holocaust denial, or white supremacy, or criticism of Muslims, or opposition to affirmative action, or whatever.”
Allow me. As FIRE reported last May, University of California President Janet Napolitano said that she believed the UC system should adopt the U.S. State Department’s definition of anti-Semitism, which includes “[a]ccusing the Jews … of inventing or exaggerating the Holocaust.” A Jewish student at George Washington University was suspended last year for displaying on a bulletin board a small swastika he had bought in India—even though he intended to teach his peers about the swastika’s history as a symbol of good luck. Colorado College recently suspended a student for six months over a six-word joke on social media that the college deemed racially offensive. (This is the same college that, several years earlier, disciplined two students for posting a satirical flyer mocking feminism.) Last year, Texas Christian University suspended a student for remarks he posted to his personal social media accounts, including opinions on the spread of the “Islamic State.” SUNY Fredonia denied promotion to a professor who criticized the university’s affirmative action practices, explicitly citing the professor’s statements to the media, while the University of Kansas put a professor on administrative leave after he posted a tweet to his personal Twitter account condemning the National Rifle Association. And, funnily enough, Greg’s first essay in this series links to a blog post describing Bucknell University’s punishment of students for protesting affirmative action. Over the years, administrators have also censored or attempted to censor affirmative action protests at The College of William and Mary, DePaul University, Grand Valley State University, Northeastern Illinois University, the University of California, Irvine, and the University of Colorado at Boulder.
All of these cases involve actions by (or proposals from) university administrators, many of which were authorized by written speech codes that were, quite obviously, implemented by administrators and not by students. It is true that calls for censorship from students have been worryingly widespread in recent years, but administrators remain—despite Posner’s denial—a “major threat to free discussion on campus.”
Posner also argues that speech codes “are designed not to stifle but to enhance discussion by discouraging students from being rude to each other.” Even assuming arguendo that Posner is correct about the rationale behind speech codes, the reality is that speech codes—even some of the most benign-sounding speech codes—do stifle rather than enhance discussion. In the case of College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1003 (N.D. Cal. 2007), students at San Francisco State University were charged with violating the university’s “civility” mandate by holding an anti-terrorism protest. In enjoining the university’s enforcement of the policy, U.S. Magistrate Judge Wayne Brazil articulated how administrative requirements that students be “civil” hinder open debate:
Civility connotes calmness, control, and deference or responsiveness to the circumstances, ideas, and feelings of others…. Given these common understandings, a regulation that mandates civility easily could be understood as permitting only those forms of interaction that produce as little friction as possible, forms that are thoroughly lubricated by restraint, moderation, respect, social convention, and reason. The First Amendment difficulty with this kind of mandate should be obvious: the requirement “to be civil to one another” and the directive to eschew behaviors that are not consistent with “good citizenship” reasonably can be understood as prohibiting the kind of communication that it is necessary to use to convey the full emotional power with which a speaker embraces her ideas or the intensity and richness of the feelings that attach her to her cause. Similarly, mandating civility could deprive speakers of the tools they most need to connect emotionally with their audience, to move their audience to share their passion.
In sum, there is a substantial risk that the civility requirement will inhibit or deter use of the forms and means of communication that, to many speakers in circumstances of the greatest First Amendment sensitivity, will be the most valued and the most effective.
I have to wonder how many cases of punishment for protected expression would be enough to convince a skeptic like Posner that there is a widespread and serious problem among both college students and administrators. Or what kind of speech is so clearly protected that colleges have no excuse for censoring students, if quietly handing out copies of the Constitution is in a gray area for him.
Luckily for readers, FIRE isn’t one to quickly give up on our aim to persuade—look for more thoughts on Posner’s arguments in the coming days.