Last spring, protests at numerous American universities, prompted by the ongoing conflict in the Middle East, produced fierce debates over freedom of speech on campus.
Colleges and universities struggled mightily over how to mount an appropriate response. The University of Pennsylvania refused to allow a screening of a movie that was sharply critical of Israel. Brandeis University barred a pro-Palestinian student group in response to inflammatory statements made by its national chapter.
At Columbia, police officers arrested more than 100 students in an effort to empty the school’s pro-Palestinian encampment; classes were later moved online. But at Northwestern, the administration entered into a deal with protesters, in which almost all of their tents were removed in return for multiple commitments, including an agreement to provide the “full cost of attendance for five Palestinian undergraduates to attend Northwestern for the duration of their undergraduate careers.”
There have been intense debates about whether antisemitic speech, as such, should be banned on campus, and about the right definition of antisemitic speech. With the new academic year starting alongside a looming presidential election, we can expect protest activity on a host of issues, raising fresh questions about free speech on campus.
To answer those questions, we should turn to the First Amendment of the U.S. Constitution, which states that Congress “shall make no law … abridging the freedom of speech.” Those words provide the right foundation for forging a new consensus about the scope and importance of free speech in higher education.
As a rallying cry, that consensus should endorse the greatest sentence ever written by a Supreme Court justice. In 1943, Justice Robert H. Jackson wrote, “Compulsory unification of opinion achieves only the unanimity of the graveyard.”
It is true that private colleges and universities, unlike public ones, are not subject to the First Amendment, which applies only to public officials and institutions. If Harvard, Stanford, Baylor, Vanderbilt, Pomona or Colby wants to restrict speech, the First Amendment does not stand in their way.
Still, most institutions of higher learning, large or small, would do well to commit themselves to following the First Amendment of their own accord.
First Amendment doctrine, developed over the centuries, provides excellent guidance. If colleges and universities adhere to it, they have a ready-made set of specific principles on which to build. They don’t have to struggle to create a set of rules from the ground up. And if there is a clash between the school’s values and what the First Amendment requires, the values should usually yield.
The First Amendment protects dissent, but it is emphatically not an absolute. For example, it does not protect what the Supreme Court calls “true threats.” Students have no constitutional right to threaten to commit violence against their classmates.
Nor is sexual harassment protected by the First Amendment. If a professor tells a student that if she wants a good grade, she had better go on a date with him, he can be disciplined.
There is no right to engage in plagiarism. If students or professors are punished for claiming another scholar’s work as their own, the First Amendment does not stand in the way of such punishment.
If students want to take over a building or to destroy university property, the First Amendment will not help them. The Constitution does not forbid universities from enforcing the law of trespass.
Nor does the First Amendment protect criminal conspiracy. If a group of students or professors conspires to violate the law, they are not protected merely because their conspiracy consists of speech.
More subtly, the First Amendment allows universities to punish speech that is intended to incite, and is likely to invite, “imminent lawless action.” Under this standard, students or professors can be punished for inciting an angry crowd to take over the president’s office.
But they cannot be punished for saying, “the United States is a racist country” or “Capitalism Is Rape” or “Israel is committing genocide” or “Abortion is Murder.”
The First Amendment protects speech that is angry, unpatriotic, insulting, hateful, hurtful, offensive — or even harmful.
Whenever colleges and universities seek to regulate speech, they need to distinguish among three kinds of restrictions. Some restrictions are based on viewpoint. A university might, for example, try to punish speech that is sharply critical of Israel or Christianity, or that denies the reality of climate change, because of the viewpoint that it expresses.
Under the First Amendment, restricting speech because of its viewpoint is anathema and usually unconstitutional. It strikes at the heart of the system of free expression.
Other restrictions are based on content, but not on viewpoint. A university might say that students may not discuss certain topics, such as civil rights or foreign affairs, without punishing any particular point of view. Under First Amendment doctrine, content-based restrictions are also strongly disfavored; the courts are exceedingly reluctant to uphold them.
Still other restrictions have nothing at all to do with content. If students are not allowed to speak loudly in dormitories after midnight, it doesn’t matter whether they are supporting affirmative action programs, calling for daily prayer or saying that Hitler had a lot of good ideas. Courts usually uphold content-neutral restrictions if there is a strong reason for them and if they don’t unnecessarily intrude on freedom of speech.
With or without the First Amendment, the academic setting presents its own considerations. Importantly, the Constitution allows colleges and universities to take those considerations into account.
In a class on Shakespeare, students and professors can be instructed by administrators to discuss Shakespeare, not the presidential election. A history department is allowed to deny tenure to an assistant professor whose work focuses on climate change, not on history. To run their academic programs, institutions sometimes have to consider the content of speech, and they are permitted to do that.
It follows that even if colleges and universities choose to follow the First Amendment, they can impose restrictions that would not be permissible elsewhere. They can direct professors to treat their students respectfully in class. If a teacher of physics says that he believes it hopeless to try to teach physics to women, he can probably be disciplined; it is hard to teach physics if you are on record as saying that your female students are incapable of learning.
To be sure, we can imagine hard questions here. The First Amendment provides a framework, not an algorithm. And religious schools and military academies have distinctive missions, which might justify special rules.
Still, freedom always deserves the benefit of the doubt. The educational mission does not give colleges and universities a green light to punish speech that their alumni, their donors or influential politicians abhor or perceive as harmful. As Justice Oliver Wendell Holmes Jr. put it, “we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.”
Colleges and universities exist for one reason above all: to promote learning. They are democracy’s greatest arsenal. They do not need the unanimity of the graveyard. They need the noisy, teeming pluralism of living communities that search for truth.
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