JANUARY 9, 2018
IN THE MIDST of another turbulent moment in American history, from white supremacists chanting “Jews will not replace us” in Charlottesville to racist remarks at UC Berkeley, the limits on free speech are being severely tested, leading to renewed calls to ban “hate speech,” prevent alt-right figures from speaking, and prohibit demonstrations and marches out of a fear of violence and bloodshed.
Nowhere have traditional protections for free speech been more disputed than on the nation’s college campuses, where principles of academic freedom and open debate have been pitted against virulent hate speech and violent confrontations. A 2015 survey found that a whopping 72 percent of students would support disciplinary action against “any student or faculty member on campus who uses language that is considered racist, sexist, homophobic or otherwise offensive.” Into this fray come two illuminating books with identical titles (which in itself demonstrates the urgency of this subject).
In Free Speech on Campus, Sigal R. Ben-Porath sets out to provide “strategies to de-escalate tensions and negotiate highly charged debates surrounding trigger warnings, safe spaces, and speech that verges on hate.” A professor of Education, Political Science, and Philosophy at the University of Pennsylvania, Ben-Porath is the author of several books, including Citizenship Under Fire: Democratic Education in Times of Conflict. Beyond her worthy academic credentials, what enlivens her analysis and grounds her work in the realities of 21st-century colleges and universities is her service as chair of Penn’s Committee on Open Expression. In this role, she mediates conflicts, attempting to reconcile the twin aims of free speech and maintaining an inclusive campus where students and faculty have the opportunity to learn, teach, and conduct research without severe disruption.
In their own new book, Free Speech on Campus, Erwin Chemerinsky and Howard Gillman bring a wealth of legal knowledge and incisive thinking to these difficult questions. Chemerinsky is a leading constitutional scholar, and after serving as the founding dean at the University of California at Irvine School of Law, recently became dean and professor of Law at the University of California, Berkeley School of Law. Gillman is chancellor and professor of Law, Political Science and History at the University of California, Irvine.
Their book grew out of their experience co-teaching a freshman undergraduate seminar at UCI entitled “Free Speech on College Campuses,” where they discovered that their students, who eagerly discussed difficult issues, “knew little about the history of free speech in United States and had no awareness of how important free speech had been to vulnerable political minorities.”
By venturing beyond glib bromides on free speech and outlining practical steps that everyone can take, these two books provide an urgent and indispensable roadmap to guide us through one of the most divisive periods in American history.
A new arrival at UC Berkeley, Chemerinsky is entering a cauldron of controversy. In September, a much publicized “Free Speech Week” — which had boasted speakers such as Stephen Bannon, former advisor to President Donald Trump, and Milo Yiannopoulos, the technology editor of the right-wing Breitbart News — was canceled by its organizers.
Last February, the student group Berkeley College Republicans had invited Yiannopoulos to speak on campus. While administrators expressed their commitment to ensure the event took place in the name of free speech, some faculty members urged that it be canceled. On the day of the event, student and other protestors rallied against Yiannopoulos. Eventually, the protests turned violent, including smoke bombs, fires, and broken windows. The speech was canceled due to safety concerns and the campus was placed on lock-down. A university spokesman claimed that the violence was due to the actions of outsiders “implementing a very clear plan to engage in violence, disruption and property destruction.” President Trump inflamed the situation by threatening via Twitter to cut off federal funds if the university failed to protect free speech.
Not long afterward, Middlebury College’s American Enterprise Institute Club invited Charles Murray, the controversial author of the 1994 book The Bell Curve, to speak on his new book Coming Apart. Calling the invitation “unacceptable and unethical,” 450 alumni signed a letter demanding that he be disinvited on the grounds that the college should not provide a platform for a hateful speech based on work marred by pseudoscientific justifications of racial hierarchy. Murray’s speech was disrupted by a violent encounter with angry protesters, in which the host of the event was injured.
In 2015, students at the University of Missouri established a group intent on exposing discrimination on campus, especially against African-American students. They highlighted cases where slurs, swastikas, and verbal aggression were used against minority students and demanded a response from the administration. After they were rebuffed, the students organized a hunger strike and the mostly African-American football team threatened to go on strike. Ultimately, the university president resigned and some initiatives were taken to remedy the issues raised by the students.
Ben-Porath, Chemerinsky, and Gillman provide many other recent examples, including at Yale, the University of Tulsa, Northwestern, University of Oklahoma, Youngstown State University, Texas Christian University, UCLA, Colorado College, and Swarthmore College.
To navigate through this, Ben-Porath proposes that campus free speech disputes be guided by what she calls an “inclusive freedom” approach, which “takes seriously the importance of a free and open exchange as a necessary condition for the pursuit of knowledge and as a contributing condition to the development of civic and democratic capacities,” — that’s the “freedom” part — while at the same time lending “similar weight to the related demand that all members of the campus community be able to participate in this free and open exchange if it is to accomplish the goals of free inquiry, open-minded research, and equal access to learning and to civic development” — that’s the “inclusive” part. Chemerinsky and Gillman take a very similar approach, counseling that “[c]olleges and universities must create inclusive learning environments for all students and protect freedom of speech.”
All three authors are unequivocal in rejecting campus speech codes or other official regulations that would punish speech based on its content or viewpoint, regardless of whether it is perceived as offensive, hateful, or harmful to listeners. As Chemerinsky and Gillman put it, “[f]reedom of expression and academic freedom are at the very core of the mission of colleges and universities, and limiting the expression of ideas would undermine the very learning environment that is central to higher education.”
Initially, Ben-Porath points out that while public colleges and universities are legally governed by the First Amendment, private ones tend to abide by “First Amendment principles” and the precepts of academic freedom. All institutions recognize the 1967 Joint Statement on Rights and Freedoms of Students, endorsed by the American Association of University Professors, the Association of American Colleges and Universities, the National Student Association, and other organizations, which states that “[s]tudents and student organizations should be free to examine and discuss all questions of interest to them, and to express opinions, publicly and privately” and that they should “always be free to support causes by orderly means which do not disrupt the regular and essential operation of the institution.”
Ben-Porath offers an even more robust and comprehensive justification for protecting free speech on campus than the generalities contained in the Joint Statement:
Colleges and universities are places where knowledge is developed and disseminated. To do their job well, scholars and students require the freedom to inquire, question, and probe established views and new visions without fear of retribution or silencing. The freedom to explore, to express and consider controversial views, and to raise remote options and pursue them is central to research, teaching, and learning. Free speech protections are therefore necessary if researchers and their students are to make the kinds of contributions that society expects them to make, and for which they come to campus in the first place.
When he founded the University of Virginia, Thomas Jefferson couldn’t have said it better.
Universities have a duty to prepare students for the day they will leave the Ivory Tower. As Ben-Porath puts it, “the campus needs to expose students to some of the tensions and disagreements that they might encounter outside of the bubble created by a homogeneous campus social environment.” Colleges aren’t cloistered nunneries where devotees live insulated from the rough and tumble of the outside world. Indeed, it would be educational malpractice for institutions of higher learning to confer degrees on students without equipping them with effective tools to confront the ignorance, superstition, prejudice, bigotry, and discrimination they are likely to experience after graduation.
Consequently, as Ben-Porath persuasively demonstrates, proponents of speech codes and other policies that restrict free speech aren’t doing students any favors. The demands of advocates to give “no platform” to speakers on campus who express racist, sexist, antigay, and other hateful language “miss the mark because they seek to avoid perspectives that deserve or, at the very least, require dialogue — if some or many in society hold certain views, even reprehensible ones, avoiding them does nothing to challenge them.”
Moreover, colleges teach students habits of thinking that they are likely to rely on for the rest of their lives as voters and decision makers in their communities and the nation at large. Do we want a citizenry that has been taught that censorship is permissible or that the government should decide what people can say or write based on whether the majority agrees with what is being said or written? “Curtailing free speech,” Ben-Porath argues, “based on content or — even worse — the presumed motivation of the speaker, raises the risk of creating some version of thought police — namely, a regulatory mechanism for deciding which views and opinions warrant an invitation to campus and which do not.”
Ben-Porath makes an additional point that is often overlooked when certain groups seek to suppress hateful and offensive speech. Who decides what is “hateful” or “offensive”? Who is on that committee? And who appointed the committee? Once a regime of banning speakers or speech is enacted and enforced by disciplinary tribunals with the authority to mete out punishment for violation of a speech code, who’s to say your speech or my speech might not be found to be “hateful” or “offensive”? Ben-Porath points out that when “social justice advocates call for the curtailment of free speech through censoring speakers and canceling events, they neglect to recognize the historical reality that curtailing free speech might harm vulnerable groups,” because once censorship based on content is possible, “what is to stop people in power — administrators, religious majority groups, or other established centers of power — from limiting speech by dissenters, opponents, or anyone who threatens the status quo?”
Chemerinsky and Gillman complement Ben-Porath’s approach by providing highly informative but succinct histories of free speech in the United States, in general, and the development of American higher education as a bastion of free inquiry, in particular, all with an emphasis on how the law has progressed dramatically in these areas. Based on their own experience teaching undergraduates, Chemerinsky and Gillman are convinced that, unfortunately, the societal value of free speech is very abstract to today’s students “because they did not grow up at a time when the act of punishing speech was associated with undermining other worthwhile values,” and that they “are not aware of how the power to punish speech has been used primarily against social outcasts, vulnerable minorities, and those protesting for positive change — the very people toward whom our students are most sympathetic.”
In 24 absorbing pages, Chemerinsky and Gillman offer an excellent primer on the growth of free expression in the United States from suppression under the Alien and Sedition Acts in 1798, the criminalization of anti-slavery literature before the Civil War, the censorship of sexually themed literature and abortion information under the Comstock Laws enacted in 1873, and the punishment of dissent during the Red Scare under the Espionage Act of 1917 and the Sedition Act of 1918, to the emerging recognition of the true meaning of the First Amendment and a steady stream of pivotal Supreme Court cases guaranteeing broader and more robust protection for free expression. Consequently, by 1937 Justice Robert Jackson would write in West Virginia State Board of Education v. Barnette that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
Speaking directly to their students, Chemerinsky and Gillman sum up this brief but brilliant history by pointing out that “the most important beneficiaries of this new conception of free speech were the most vulnerable members of society and those who most strongly advocated for social change, especially labor unions, religious minorities, political radicals, civil rights demonstrators, anti-war protestors, and nonconformists.”
In an equally compelling 32-page chapter, Chemerinsky and Gillman examine the transformation of colleges and universities from institutions of theocratic and authoritarian indoctrination and orthodoxy into places in which disciplined free thinkers valued curiosity, discovery, skepticism, and dissenting viewpoints, where ideas that may seem wrong would not be censored but engaged and exposed through argumentation. The authors title this chapter “Nullius in Verba,” the Latin motto adopted by the Royal Society of London for Improving Natural Knowledge founded in 1663, which can be translated as “take nobody’s word for it” or “nobody tells us how to think.”
Chemerinsky and Gillman sum up their history of the development of our colleges and universities into institutions dedicated to free and open intellectual exploration, this way:
History demonstrates that there is no way to define an unacceptable, punishment-worthy idea without putting genuinely important new thinking and societal critique at risk. Universities contribute to society when faculty are allowed to explore the frontiers of knowledge and suggest ways of thinking that may be considered crazy, distasteful, or offensive to the community. When people ask the censor to suppress bad ideas in higher education, many important and positive ideas never have the chance to flourish, and many dangerous or evil ideas are allowed to thrive because they are not subjected to evaluation, critique, and rebuttal. In our view, no belief should be treated as sacrosanct.
One is tempted to suggest that no belief should be treated as sacrosanct except the belief that no belief should be treated as sacrosanct.
Chemerinsky and Gillman devote a very important separate chapter to a subject that is indispensable to a full and candid examination of the issue at hand: hate speech. They begin with the reminder that in the 1990s, moved by concerns that hate speech conveyed nothing useful to the marketplace of ideas and caused genuine harm to minority students, over 350 college and university administrations adopted codes and regulations punishing such speech. According to the authors, every court to consider such codes and regulations declared them unconstitutional.
In this matter we side with the courts: though the advocates of restricting hate speech were motivated by the best intentions, speech cannot and should not be prohibited for expressing hate. We strongly agree with the need to create a conducive learning environment for all students, but there is simply no way to regulate hate speech without censoring ideas. That is never permissible on college campuses.
The authors do not dispute that hate speech can cause great harm. “Freedom of speech is protected as a fundamental right precisely because speech may have powerful effects.” But Chemerinsky and Gillman offer several cogent reasons “why campuses should resist calls to censor and punish people who express ideas considered offensive, hateful, or demeaning.”
Decades of experience demonstrate that, given the vast range of human nature and the difficulty of objectively defining “hate,” codes and regulations prohibiting “hate speech” are impermissibly vague and overbroad. Consequently, these prohibitions grant authorities unfettered discretion to translate personal biases into the force of law and thus induce the chilling effect of self-censorship of ideas, which deserve to be heard, for fear of being accused of violating the regulations.
Chemerinsky and Gillman ask who gets punished with a speech code in force if gay and lesbian students protest that they were demeaned by a Christian student’s public declaration that based on his or her religious teachings the only true marriage is between a man and a women. Which of these students is engaging in “hate speech” and which is exercising his rights under the First Amendment? Who should be punished? If none, then isn’t the speech code a useless and illusory appendage, which only pretends to deal with a clash of values?
Given that vague and overbroad laws inherently risk discriminatory enforcement, the authors cite the keen observations of Nadine Strossen, law professor and former president of the ACLU:
One ironic, even tragic, result of this discretion is that members of minority groups themselves — the very people whom the law is intended to protect — are likely targets of punishment. For example, among the first individuals prosecuted under the British Race Relations Act of 1965 were black power leaders.
And although the English law was adopted in response to rising anti-Semitic incidents on campus, it was used against those advocating for Israel, who were accused of using “hate speech” on the basis of U.N. General Assembly resolution no. 3379, that declared Zionism a form of racism.
Chemerinsky and Gillman also point out that there is no evidence that hate speech laws result in more tolerant attitudes toward vulnerable groups. On the contrary, without hate speech laws the United States has moved from only four percent of Americans approving of interracial marriage in 1958 to 86 percent approval in 2011. By contrast, an Anti-Defamation League’s study found higher levels of anti-Semitism in those European countries surveyed, despite their having hate speech laws, compared to the United States.
Chemerinsky and Gillman might well have included one of the most compelling refutations to calls for laws punishing hate speech, which was made by Aryeh Neier, former executive director of Human Rights Watch. He was born in Nazi Germany and became a refugee when his family fled in 1939 when he was two years old. He was also national director of the ACLU at the time of the Skokie controversy, when the ACLU defended the right of American Nazis to conduct a nonviolent march in that predominately Jewish community. What he wrote on this question in his book Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom (1979) is worth quoting in full:
Because we Jews are uniquely vulnerable, I believe we can win only brief respite from persecution in a society in which encounters are settled by power. As a Jew, therefore, concerned with my own survival and the survival of the Jews — the two being inextricably linked — I want restraints placed on power. The restraints that matter most to me are those which ensure that I cannot be squashed by power, unnoticed by the rest of the world. If I am in danger, I want to cry out to my fellow Jews and to all those I may be able to enlist as my allies. I want to appeal to the world’s sense of justice. I want restraints which prohibit those in power from interfering with my right to speak, my right to publish, or my right to gather with others who also feel threatened. Those in power must not be allowed to prevent us from assembling and joining our voices together so we can speak louder and make sure that we are heard. To defend myself, I must restrain power with freedom, even if the temporary beneficiaries are the enemies of freedom.
Neier’s powerful and compassionate comments reflect the words of the Seventh Circuit Court of Appeals in its decision in Collins v. Smith, upholding the right of the Nazis to march in Skokie:
[O]ur task here is to decide whether the First Amendment protects the activity in which appellees wish to engage, not to render moral judgment on their views or tactics. No authorities need be cited to establish the proposition, which the Village does not dispute, that First Amendment rights are truly precious and fundamental to our national life. Nor is this truth without relevance to the saddening historical images this case inevitably arouses. It is, after all, in part the fact that our constitutional system protects minorities unpopular at a particular time or place from governmental harassment and intimidation, that distinguishes life in this country from life under the Third Reich.
Many books defending free speech and opposing calls to punish hateful and offensive speech would stop here. Based on long-standing judicial precedent and what is seen as the self-evident and irrefutable nature of the arguments marshaled in support of robust protection for freedom of expression, nothing more need be said. To those students who feel demeaned and humiliated by hateful and offensive speech, the answer is: “suck it up.” To those professors who yearn to teach without regard to the impact of their insensitive classroom comments, they are “free at last.” And to those administrators who find the law is on their side, “business as usual.”
Fortunately, these two books do not end by declaring a First Amendment victory and leaving the field. Far from it. All three authors stay fully engaged and grapple intelligently with the challenges that face vulnerable communities on campus.
The distinctive and constructive impact of Ben-Porath’s analysis comes from the thoughtful attention she pays to those who feel victimized and silenced by the hateful, racist, bigoted, and offensive speech which she has thus far so persuasively demonstrated should not be censored or curtailed. She fully acknowledges and calls out the “dignitary harm” which is caused when, for example, Yiannopoulos makes fun of a transgender student in a public speech at the university the student attends, or when Charles Murray questions the intellectual capacities of African Americans, or when Lawrence Summers suggests that women might have a lower aptitude in math and science. The accumulated and insidious effect of harmful speech of this type “compounds the silencing of certain groups by designating them as less than equal members of the community.”
Consequently, Ben-Porath supports “safe spaces” where students can associate with those like them — racially, ideologically, or by any other measure, even as the university overall maintains its commitment to intellectual candor and controversial and uncomfortable ideas. However, she is very clear in opposing broad calls for “campus civility.” Civility, as Ben-Porath sees it, “leans too strongly to the side of order, reasonableness, and avoidance of challenge. To protect inclusive free speech, much more room should be made for messy, inappropriate, challenging, and sometimes uncivil expression.” It is too easy for a Catholic university to restrict the activities of a pro-choice student group in the name of “civility” or for Fordham University to refuse students’ request to start a chapter of Students for Justice in Palestine on like grounds.
In the classroom, Ben-Porath asserts that teachers are bound by intellectual honesty, which limits their expression compared to what they are free to say outside the classroom. They must focus on the subject matter of the class and restrain themselves from offering opinions on irrelevant topics no matter how tempting given everyday headlines. They must adhere to discipline-appropriate, scientific- and evidence-based principles.
Unfortunately, Ben-Porath stumbles slightly in this area. She rather dogmatically declares that “[w]hen learning about climate, there is no room for questioning scientific evidence,” or “there is no need to accommodate religious or ideological objections to accepted knowledge.” Really? “Accepted knowledge”? Yet not one page later, she herself assures professors they can present “unpopular views” and “question current perspectives” because it will “advance knowledge rather than simply repeat accepted orthodoxies without question.”
Similarly, when it comes to the classroom, Ben-Porath proposes standards of civility that “justly forbids outright mocking, racist and misogynic declarations, and physical harm.” But later she declares that “[n]o student (or instructor) should feel that she needs to monitor her words, worry about retaliation, or fear an explosive exchange.” What she may be saying is that there should be a voluntary compact among everyone in the classroom to create an atmosphere of mutual respect and inclusiveness enforced by social norms, but not by codes, regulations, and punishment.
Ben-Porath offers more clarity when it comes to the controversial issue of “trigger warnings” — a notice in a course description or syllabus alerting students that they may encounter topics that may be upsetting. She suggests that trigger warnings “should be seen as a matter of good pedagogy and academic practice rather than a surrender to weakness and laziness of thought.” She adds that in most cases, “there is no need or strong justification to permit students to avoid a class because of its ‘triggering’ — painful, traumatic, harmful — content, but sometimes that allowance is acceptable.” (During an oral argument in a case involving a campus speech code before the Ninth Circuit Court of Appeals, one of the appellate judges remarked that he felt harassed by the requirement to diagram sentences.)
In place of speech codes and regulations, Ben-Porath offers other examples of good practices to help create “an open and inclusive classroom environment where intellectual honesty and accountability is consistently respected and where all can express their perspectives.” She encourages instructors to plan ahead, anticipate controversial topics, guide classroom discussions with a strong hand, insist that all students get a chance to speak, and prevent students from dominating the discussion. As to the wider campus, she recommends the establishment of “Open Expression Monitors,” such as the program at her institution, in which faculty, staff, and students selected for their conflict-resolution interests and skills are trained to ensure the protection of free speech as detailed in campus guidelines. They attend events wearing a large identification tag when invited by the organizers who are concerned about the possibility of disruption. Their role is to calm the situation and or intervene when anyone’s right to speak is threatened, but they are not a replacement for campus security services whose job is to prevent violence. Ben-Porath would have been wise to include case studies about how Open Expression Monitors at her school and elsewhere dealt with real-life campus confrontations.
Chemerinsky and Gillman are more systematic in presenting specific practical steps that colleges and universities can take to carry out “their responsibility to maintain inclusive, nondiscriminatory learning environments” without sacrificing their commitment to free speech and academic freedom. They offer 11 sets of campus dos and don’ts, which cover every imaginable situation that might arise. For example:
A campus can’t censor or punish speech merely because a person or group considers it offensive or hateful.
A campus can censor or punish speech that meets the legal criteria for harassment, true threats, or other speech acts unprotected by the First Amendment.
The authors proceed to define true threats (“No one has a First Amendment right to cause another person to reasonably fear for his or her physical safety”), harassment (“Freedom of speech does not protect a right to harass an individual on account of his or her race, sex, religion, or sexual orientation”), destruction of property (“There is, of course, no First Amendment right to destroy someone else’s property, even if it is done to communicate a message”), and disruption (“There is no First Amendment right to disrupt classes or other campus activities”). And they elaborate on each of the concepts with useful examples that explain what activities fall within each category.
As far as “trigger warnings” are concerned, here’s the sensible approach Chemerinsky and Gillman take:
Faculty members may choose to provide students warnings before presenting material that might be offensive or upsetting to them.
Colleges and universities should not impose requirements that faculty provide “trigger warnings” before presenting or assigning material that might be offensive or upsetting to students.
To drive home these 11 helpful guidelines, Chemerinsky and Gillman recast them as “An Agenda for Campuses” containing 17 fundamental principles “to protect student well-being and promote an inclusive environment,” including:
Ensure that campus dormitories are safe spaces of repose, short of imposing content-based restrictions on speech.
Sensitize the campus community to the harms caused by microaggressions and the effects of implicit bias.
Organize co-curricular activities that celebrate cultural diversity and provide victims of hateful and bullying acts the opportunity to be heard.
Speak out to condemn egregious acts of intolerance as a way of demonstrating the power of “more speech” rather than enforced silence.
In the end, all three authors place their faith in the fundamental principle of “more speech, not enforced silence.” As Ben-Porath puts it, “[p]rotecting intellectual honesty and candor and preserving the substantive opportunity for all campus members to participate in its core mission are the basic currencies of an inclusive campus committed to free expression.”
Playing to their strength, Chemerinsky and Gillman turn to the law and invoke the compelling words of Justice Louis Brandeis in his memorable 1927 opinion in Whitney v. California. In that case, Charlotte Anita Whitney was convicted of violating the California Criminal Syndicalism Act for advocating peaceful political change as an organizer for the Communist Labor Party. While a majority of the Court voted to uphold her conviction on the grounds that her actions presented a “danger to the public peace and the security of the State,” Brandeis (joined by Justice Oliver Wendell Holmes Jr.) disagreed. Speaking directly to those today who would punish hate speech, Brandeis wrote that “[f]ear of serious injury cannot alone justify suppression of free speech and assembly.” After all, “[m]en feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.” For Brandeis, the remedy was clear. “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”
Brandeis, like these three authors, understood the centrality of education in the ongoing challenge of confronting “falsehood and fallacies” with free speech. For Chemerinsky and Gillman the “generation now in college will soon be our society’s leaders. The stakes could not be higher as we help them understand why free speech matters, not just on campuses but in the world. If we expect them to fight for these values, we must teach them these values.”