Friday, November 17, 2017

Disaggregating Free Speech on Campus

by Michael Dorf

On Monday Nov 20, UC Berkeley Law School Dean Erwin Chemerinsky will be giving two talks at Cornell on the topic "Free Speech on Campus," which happens to be the title of his new book with Howard Gillman. I'll introduce Dean Chemerinsky at the law school event and, following his talk, moderate a discussion. I expect to have something to say by way of post-mortem on Tuesday. In this essay, I want to make a preliminary observation about Dean Chemerinsky's topic and then offer some illustrations.

My basic claim is that some free speech issues might be resolved differently in a college or university (what I'll call "campus") setting from how they might be resolved in general (what I'll call non-campus settings), but that the difference the campus setting makes depends on the question. In some contexts, the fact that speech claims are made on campus should make them stronger relative to competing claims; in other contexts, the fact that speech claims are made on campus should make them relatively weaker; and in still other contexts, the campus setting should make no difference.

That might not seem like much of an insight, but I think it is nonetheless worth highlighting, because there is a tendency in public debate about campus speech for conservatives to accuse liberal academics of hypocrisy--of wanting to deny conservatives freedom of speech (by campus speech codes, say) in the one setting where it should be sacrosanct (via academic freedom). There may indeed be hypocrisy afoot (by liberals, conservatives, and/or others), but the fact that some speech claims are weaker in virtue of occurring in the campus context is not necessarily evidence for that fact. The difference that the campus context makes is multivalent.

The question I am posing is more or less this: Whatever one thinks is the ideal approach to a free speech question when it arises in a non-campus setting, how should that approach differ, if at all, when the question arises in a campus setting?

By "ideal" I don't mean an ideal interpretation or construction of the First Amendment or any other legal provision, although I'll refer to First Amendment doctrine as a point of reference. I mean something like what any particular reasonable person would think is an appropriate approach, all things considered. Because I'm not asking a constitutional question, I'm also not going to distinguish between public and private colleges and universities. I'll note characteristics of the campus context that, relative to the non-campus setting, count for, respectively: (A) extra protection for speech; (B) less protection for speech; and (C) the same protection for speech

(A) Extra Protection for Campus Speech

(1) Colleges and universities are havens of academic freedom. In recent years, some people have questioned the need for tenure and its efficacy in promoting academic freedom. It probably won't surprise anyone to hear that I, as someone with tenure, think it's a defensible institution. As I wrote in 2014,
there are special reasons why people who teach need protection against arbitrary firing or discipline. There are additional special reasons to afford such protections to people who produce scholarship. But even apart from these special reasons applicable to teachers and scholars, some degree of "academic" freedom would, in an ideal world, apply to everyone, including non-academics. Suppose that a veterinarian, locksmith, or florist uses his spare time to tweet disrespectful comments about the Middle East or any other subject. Is that a sound reason for the veterinary practice, hardware store, or floral shop that employs him to fire him? True, there would be costs to adding speech to the list of impermissible grounds for employment decisions; litigation would ensue; etc. In principle, however, I think the idea is sound.
Maybe you agree with me that while academics have special need for academic freedom, everyone has some need for something like it. Whether or not you agree, we can, in principle, separate the idea of academic freedom from tenure. Although tenure is the chief mechanism by which colleges and universities protect academic freedom, academic freedom should be respected by colleges and universities even when a faculty member lacks tenure.

Suppose that an untenured faculty member of a college or university writes a blog on which she expresses controversial views. Despite the lack of tenure, she should not be subject to any adverse consequences because of the views she expressed there. As I noted in 2014, I would be opposed to a veterinary practice, hardware store, or floral shop disciplining someone for expressing politically unpopular views, but the business interests are substantial enough to justify the firm in insisting that the employee disassociate herself from the firm. If an outspoken blogger identified herself as "nighttime manager of the Acme Hardware Store on Seventh Street," I would think that Acme should be able to tell her to remove the Acme affiliation from the blog. By contrast, Cornell shouldn't be able to insist that  I remove the Cornell affiliation from my blog. Why? Because people understand that the views expressed by a professor are not institutional views. They probably understand that the views of Acme's nighttime manager about non-hardware-related matters don't reflect Acme's views too, but one of the very reasons for existence of the college or university is to encourage robust debate through uninhibited expression of views, including controversial ones. Having people out there affiliated with your institution saying controversial and unpopular things simply goes with the territory of running a college or university.

(2) I have thus far articulated the idea of academic freedom as protecting what we might think of as extramural speech. It is even more central to scholarship. Galileo should be our poster child. Although Renaissance Italian universities were the precursors to modern universities, they did not embrace academic freedom in its full modern sense. Even so, Galileo mostly ran into trouble with the Church rather than with his colleagues as a university professor.

How far have we come since Galileo's time? Far but maybe not far enough. Even today, colleges and universities do not allow for ideal academic freedom because of disciplinary conventions and departmental autonomy. One can't be fired for publishing Keynesian work in a Hayekian economics department (or vice-versa), but good luck getting hired in the first place. This is a genuine problem, I want to admit, but the crucial point is that, even with ideological and disciplinary influence, campuses do and should provide for greater opportunities to promote dissident views than other institutions, such as for-profit-businesses.

(3) Academic freedom also properly extends to the classroom setting. This is not uniquely true of higher education, as teachers in primary and secondary school need freedom to explore diverse ideas. So do students. But for a variety of reasons that I'll explore next, the classroom setting is a double-edged sword.

(B) Less Protection for Speech

(1) The classroom context is a structured forum that appropriately allows for some limits on speech that would be inappropriate off-campus. If I want to wear a T-shirt with the slogan "global warming is a Chinese hoax" or "vaccines cause autism," no speech-respecting society would forbid me from doing so. However, if I'm a student in a class on environmental science or epidemiology, and the professor poses an exam question seeking a balanced appraisal of the evidence regarding climate change or autism, I can appropriately be marked down for spouting ideological propositions without disciplinarily relevant support.

Classrooms are also different in another way. When you take a class you have classmates who will sometimes say things with which you disagree. That's to be expected and encouraged. However, there is a line between a strong statement of views and blatant disrespect. Neo-nazis and klansmen may have a right to use racist epithets as part of an otherwise peaceful march or rally, but a student should have no right to use such epithets in class. Like other structured settings, a classroom properly has rules of decorum and relevance that restrict speech in ways that would not be appropriate (or at least would be less appropriate) in general.

(2) Campuses are not just places for faculty and students to teach, learn, and study. They are also homes. This is obviously true with respect to dormitories, but even students who live off campus, as well as students who live on campus but are not in their dorm rooms at any given time, properly can expect to experience at least part of the campus as a place of repose. Just as we might think that a right to picket applies differently in a business district from a residential neighborhood, so we might think that students are entitled to be shielded from unwanted messages, at least some of the time and in some places on campus.

That point was expressed, admittedly in an incendiary way, by one of the Yale students who yelled at a Silliman College administrator during the now-infamous 2015 Halloween costume controversy (which I discussed here):
In your position as master,” one student says, “it is your job to create a place of comfort and home for the students who live in Silliman. You have not done that. By sending out that email; that goes against your position as master. Do you understand that?!” 
“No,” [the administrator] said, “I don’t agree with that.” 
The student explodes, “Then why the fuck did you accept the position?! Who the fuck hired you?! You should step down! If that is what you think about being a master you should step down! It is not about creating an intellectual space! It is not! Do you understand that? It’s about creating a home here. You are not doing that!”
Putting aside the manner in which the student expressed the point, the student had a point--as did the administrator. Yale residential colleges are supposed to be living spaces as well as centers of social and academic life in which young minds grapple with challenging ideas. In that regard, a residential college is a microcosm of a college or university as a whole. Because it is in part a home, students should be entitled to some greater privacy and ability to shut out unwelcome messages; but because it is not only a home, at least in some times and some places on campus students should not be entitled to quite the level of protection from unwanted messages that we think everyone is entitled in their home.

(C) Same Protection for Speech

In some respects, a campus is just like the rest of the community. Campuses typically include open spaces that look and function like parks. They often have streets and sidewalks. Events like rallies, protests, and marches seem no more or less appropriate in a campus setting than in any other setting with similar physical characteristics. This will be especially true where the target of a rally, protest, or march is college or university administration. Just as there is and ought to be a core right of citizens to rally near the statehouse to protest a pending bill to lower the minimum wage, say, so students and their supporters should have a core right to rally outside the university administration building to protest a proposed tuition hike. Of course, such speech can be subject to reasonable time, place, and manner restrictions both on campus and off. I generally find the SCOTUS time, place, and manner framework sensible, even though I don't agree with every aspect of it, but my point is that whatever one thinks about it, in this respect the campus setting probably shouldn't make much of a difference.

* * *
I have not attempted to catalogue all of the ways in which free speech on campus might differ (or not) in one or another direction from free speech in other settings. I hope I have given sufficient examples to illustrate the basic point, which is that the category of "free speech on campus" lumps together many different concerns that cut in different directions.


Joe said...

Christian Legal Society Chapter v. Martinez shows how this issue sometimes is divided along partisan lines though a strongly pro-speech justice (Kennedy) was in the majority. ["Pro-speech" does depend somewhat on definitions.]

Joe said...

"Galileo should be our poster child."

An new article on a new Bible museum:

Even the case of Galileo, arrested and censored by the Inquisition for heresy after arguing that the Earth moves around the sun, is chalked up to intellectual infighting. He was, the museum claims, a victim of “the politics of the Italian academia, which generally adhered to Aristotelian ideas.”

Opinions might differ.

Michael C. Dorf said...

I note that the article Joe links to observes that the Bible Museum has a (perhaps milder than expected) pro-religion tilt. That's not to deny that Galileo did encounter very substantial opposition from other mathematicians and astronomers. But most of them were trying to prove him wrong, not force him to recant. Moreover, as I suggest in the main post above, universities in the late 16th and early 17th centuries were not quite what they are today. Galileo's interlocutors included other scholars associated with universities, nobility with leisure, and Church scholars. The lines were fluid. And of course Aristotelianism in the Renaissance was closely associated with the Church.

David Ricardo said...

It seems difficult to argue that campus speech should be treated any differently than non-campus speech, that is, it deserves neither more or less protection than speech outside the campus. Certainly there is no Constitutional basis for doing so.

Freedom of speech allows any individual to state their opinions in a public space as long as the speech does not run afoul other reasonable laws such as treason, inciting to violence, shouting fire in a crowded theater, libel, etc. In America any individual may publicly espouse an opinion without fear of government restraint. With respect to employee speech it would seem a simple disclaimer can and should be required when an employee is speaking as an individual and not for the employer rather than prohibiting revealing that affiliation.

The reason for this is that there may be situations where the employee wants to identify their affiliation in order to give credibility to the opinion, and if that affiliation is coupled with language that the speech is that of the individual only and does not reflect the position of the employer it would seem that would be sufficient. Of course an employer can prohibit speech in the workplace as the 1st amendment does not apply to private institutions. This is not necessarily partisan, but can be an attempt to promote comity in the workplace. “Take it outside” is what can happen, which allows speech to flow unimpeded in public space.

Mr. Dorf argues that a university is a community. While not agreeing with that it would seem that if that is so then members of that community should be able to invite any speaker they so choose to speak on campus. In that situation the university's obligation would be to provide a safe and secure place for the speech to take place, and should deny speech only if they cannot do so, which is a very high bar. This is no different from society at large. If a person wishes to speak on public grounds government should provide for orderly conduct and prohibit the speech only on the basis that it cannot provide for public safety. Again, a high bar to overcome. (Charlottesville tried to preserve free speech by moving a provocative demonstration to a safer venue a short distance away. An idiot judge denied this and caused the injuries and death that occured there this summer.)

We have to recognize that much of the conflict here is politically driven. Conservatives rail against universities whom they believe use their status to propagandize their liberal views, because that is what conservatives would do were they in the position to control university speech. For them their cause is a holy war based on faith and that justifies forcing their views on people if they have the opportunity to do so. The idea that professors and administrators do not for the most part inflict their political opinion on students is just not something they understand.

Shag from Brookline said...

In watching some recent clips of a Senate committee considering the Senate's version of the Trump tax "plan," the exchanges between Chair Sen. Hatch and Sen. Brown got me thinking about 1st A speech rights of Senators and Representatives in their official capacities. I'm aware of the "Speech or Debate" clause immunity provided in the Constitution for these legislators. I'm also aware of the Constitution's provisions for both the House and the Senate to promulgate their respective rules for the conduct of their business. These were set in the 1787 Constitution. A couple of years after the Constitution was ratified, amendments proposed by Congress were ratified, including the 1st A's speech clause, the subject of this post on campus speech. Outside of the Senate and the House, the speech rights of these legislators would seem to be no different than the rest of those protected by the 1st A Speech Clause. But what are the speech rights of a Senator or a Representative in the conduct of the business of Congress? A representative form of government would seem to require speech to properly function. To what extent may Senate or House rules stifle speech of a legislator in either body? There is of course need for rules to assure orderly proceedings. But to what extent may such rules stifle speech of a legislator during official proceedings of the House and Senate? With political dysfunction, there seems to result more stifling procedures impacting speech rights of legislators in official proceedings of the House and Senate.

Perhaps on campus speech issues might be less controversial if speech rights of legislators on matters of official business were more open.

Joe said...

Shag's reference is apt since free speech for legislators is in effect the core of freedom of speech for us all. See, e.g., NYT v. Sullivan which compared the protection warranted to the citizen critic to "the protection accorded a public official."

Zechariah Chafee's final book is entitled "Three human rights in the Constitution of 1787" and concerns freedom of debate in Congress, prohibitions of bill of attainder and freedom of movement. At least two and probably all three timely.