By Eric Segall
It is rare that a week goes by without some major public controversy involving free speech at a public or private university. In Florida, Governor Ron DeSantis wants to essentially purge public universities of honest discussions of race, diversity, gender, LGBTQ+ issues, and America's past. So far, courts have said no.
At Stanford last week, Judge Kyle Duncan was greeted with much hostility, which he seemed to invite, resulting in videos showing him calling Stanford Law students "idiots" and then running off to cry to the media about how he was treated. This incident, widely reported on, has many causes and there's plenty of blame on all sides.
Both public and private universities have controversial hate speech codes that many scholars and judges think are either unconstitutional or bad policy because they go beyond punishing true threats or harassment, while others believe such codes are essential to protect traditionally marginalized groups.
Off campus online speech by university students has haunted the lower courts, which have reached all kinds of varying and conflicting results. Swirling around all these controversies are under-theorized free speech arguments leading to great constitutional uncertainty.
I have strong free-speech policy views about how colleges and universities should be operated, but this is a blog post about what the first amendment requires, not what policies are best. Even so, my goal is not to present a coherent, worked-out theory of the first amendment on campus. Instead, I want to ask a few hard questions and suggest that the label "academic freedom" does little to clarify many of these disputes. At the end of the day, much more work needs to be done by lawyers, scholars, university officials, and judges to bring much needed coherence to this area of the law.