When members of the National Socialist Party of America planned to march through the largely Jewish Chicago suburb of Skokie, Illinois, in 1977 with swastikas on their banners, they were not supposed to be interfered with. That was their right; that was what the First Amendment required as far as the regulation of speech on the streets was concerned. But does that right also apply on campus? When a few hundred white supremacists staged a nighttime march through the University of Virginia in August 2017 carrying torches and chanting “Jews will not replace us,” should that have been protected as free speech? Would the campus setting and the link with education have made it just as wrong—perhaps even more wrong—for university authorities and student groups to try to stop the white supremacists in Charlottesville as it was for the village of Skokie to put legal obstacles in the way of Frank Collin and his little band of Nazis forty years ago?
I don’t ask this as a constitutional question. Technically, the First Amendment constrains only government actions, so it applies differently to state colleges like the University of Virginia and private ones like Middlebury College. But let’s put that technicality aside. Behind the First Amendment there is supposed to be a principle of free speech that applies to everyone in our society—a strong ethic that says we should never shut down the expression of controversial views just because of their content. The question is whether that ethic of free speech matters more or less on campus than it does in society generally. Should we say, as Sigal Ben-Porath says in her book Free Speech on Campus, that “colleges and universities hold a unique place in the conversation about speech”?
The question seems to crop up every month, with some new concern about speakers invited onto campuses being heckled or disinvited because of the prospect of protest. In February 2017 Milo Yiannopoulos, a provocateur from Breitbart, was invited to campus by the Berkeley College Republicans. On the day of his speech it was canceled because protesters lit fires and started breaking windows. In March, Charles Murray, the coauthor of The Bell Curve: Intelligence and Class Structure in American Life (1994), a discredited study of the correlation between race and intelligence, was invited to Middlebury by the student chapter of the American Enterprise Institute. The event culminated in an ugly confrontation between Murray and some students in the audience who jostled and assaulted him after he was shouted down. His faculty interviewer, Allison Stanger, suffered whiplash and a concussion as a result of the melée. In April, students interrupted a speech at Auburn University in Alabama by the white nationalist Richard Spencer (of “Hail Trump! Hail our people! Hail victory!” fame). The university had tried to cancel the event (which had been booked by Spencer himself, not by a student group), but a judge held that it could not prevent Spencer from speaking on campus.
There are concerns too about students on campus being disciplined for or prevented from offending other students. In 2015 at Youngstown University, signs advertising Straight Pride Week—“brought to you by the students that are sick of hearing about your LGBT pride”—were taken down by the campus authorities because they were “counter to our mission of being a diverse and accepting campus.” Incidents like these—and one could cite hundreds of them—recently led Attorney General Jeff Sessions to say, in an address at Georgetown’s law school in September, that “a national recommitment to free speech on campus…is long overdue.” There’s a sort of moral panic going on: writer after writer, politician after politician, says we ought to be frightened about what’s happening on campuses because that is where the future of free speech will be determined.
Are campuses special because they are isolated and self-contained? No. They are special precisely because of their connection to the rest of society. John Palfrey is head of school at Andover, and in his book Safe Spaces, Brave Spaces: Diversity and Free Expression in Education he says that “our campuses ought to be connected to the world from which students and faculty come and to which they will go.” It is precisely the coming and going that worries the free speech advocates. High school students leave their homes and their families and go to college. Four years later, after graduation, they fan out into the wider community, taking with them whatever attitudes they have become accustomed to on campus. What they learn about free speech at college determines what sorts of citizens they become and in the long run determines what free speech principles survive in society at large.
A number of the books I discuss here are quite insistent on this. Colleges are “both the mirror of American democracy and the window into its future,” writes Ben-Porath, a professor of education, philosophy, and political science at the University of Pennsylvania. In a book that has the same title as hers, by two university administrators, Erwin Chemerinsky (the dean of Berkeley Law) and Howard Gillman (chancellor of the University of California at Irvine), we are told that “the generation now in college will soon be our society’s leaders.” Everyone seems to believe that if we want leaders who will fight for free speech in the courts and in our political institutions, we have to teach them its value while they are on campus. To fulfill this mission, college needs to be a place where any idea can be expressed. If students learn to shout down speeches that, in the words of Sessions, “insufficiently conform with their views,” then heaven help us when they come out into the real world and have to deal with the radical diversity of opinion they will find in the streets and squares of our cities. That’s what is generating the panic.
People get awfully solemn in the United States about the civic function of our institutions of higher education. They talk about college as the nursery of democracy and the care that we must take with our young people. As educators, the future is in our hands. I believe it is worth puncturing this solemnity with some awkward questions.
Isn’t college supposed to be a place for the dedicated and intensive study of particular subjects rather than some vague ideal of civic education? Civics may be one of the functions of secondary education—there is an excellent discussion of how high school teachers can discuss controversial topics like the influence of human activity on climate change in Jonathan Zimmerman and Emily Robertson’s book, The Case for Contention—but it can’t be the point of college. As Ben-Porath puts it, students come to college to learn, and classroom learning—in history or biology or science or French literature—requires “adherence to discipline-appropriate, scientific- and evidence-based practices.” There isn’t much debate about free speech in a chemistry lab. But Ben-Porath doesn’t quite stick to this, for she adds that even so, there’s always an element of civic education, so it is sensible to have some instructors in college who are preparing students for broader political engagement. Palfrey says something similar about college campuses: “We teach more than just mathematics, science, writing and reading, languages, the arts, and other academic topics in our schools. We also teach character and moral development.”
Are we supposed to think that colleges should dedicate lectures or seminars to moral development? Probably not; the idea seems to be that civic character will emerge naturally from the way other subjects are taught. I wonder if this is a reasonable expectation. Why should we expect tolerance to be the virtue that emerges from intensive study of trigonometry? Why not skepticism or self-assurance, a sort of learned superiority or the expectation of privilege? You don’t need to go to college to be a good citizen. Might not the virtues we need in modern politics be better taught on the streets, at work, or in the family?
Perhaps the more convincing case for free speech on campus is that colleges and universities cannot work as institutions of higher learning unless there is a spirit of unfettered inquiry in the research they undertake. “Speech, including controversial speech, is central to teaching and learning,” Ben-Porath writes. Chemerinsky and Gillman devote a lot of attention to this as well. Historically the university has been a special domain of freedom, they say, and students are selling this heritage short when they shout down visiting speakers:
Campuses cannot censor or punish the expression of ideas, or allow intimidation or disruption of those who are expressing ideas, without undermining their core function of promoting inquiry, discovery, and the dissemination of new knowledge.
Claims like this sound more convincing than they are. Is the free research of mathematicians or philosophers or physicists really in peril because of how one group of students responds to an invitation to Ann Coulter or Milo Yiannopoulos? Most of the free speech issues on campus have nothing to do with the lectures, laboratories, or seminars in which academic freedom is implicated.
Aside from commencement addresses, a college or a university rarely invites or hosts speakers itself. Academic departments sometimes do, but few of the incidents that people complain about have involved speakers invited as part of a classroom series. Mostly it’s students showing off and trying to provoke and annoy one another. So we have to ask: What’s the connection supposed to be between the rough-and-tumble of student politics and academic freedom in the disciplined research undertaken in the schools and departments of the university?
I ask this because sometimes the complaints about student protests are quite absurd. Here’s a report from January 2016 in The Guardian:
Chris Patten, the chancellor of Oxford University, has told students involved in the campaign to remove a statue of Cecil Rhodes that they must be prepared to embrace freedom of thought or “think about being educated elsewhere.” Patten accused students who had criticised Rhodes, who regarded the English as racially superior, of trying to shut down debate. He said that by failing to face up to historical facts which they did not like, students were not abiding by the values of a liberal, open society that “tolerates freedom of speech across the board.”
This is nonsense. The students weren’t trying to shut down debate; they were trying to open it up. A dreary statue of Cecil Rhodes on the front of Oriel College is hardly a focus of higher learning. (I don’t remember tutors taking their charges out onto the High Street to study it when I was at Oxford. If they had, why on earth wouldn’t a debate about Rhodes’s views on imperialism have been a perfectly appropriate learning experience?) It is typical of a moral panic to run together all the issues that make us uneasy. Patten’s comments here are an egregious instance of that. He is worried about students disrupting provocative political speeches and he is worried about students questioning the value of cherished memorials. He wants us to believe that the questioning and the disruption are the same thing, whereas they are more or less polar opposites.
Maybe a college campus is special in a different way. Perhaps we should think about college students as vulnerable—young, apprehensive, away from home for the first time, finding their feet, and so on. Sigal Ben-Porath says that campus might be the most diverse environment that the young people who study there have yet encountered. Many come from suburbs and towns that in the age of “The Big Sort” are increasingly segregated by race, politics, economics, and cultural attitudes.1 And now suddenly they are face to face with attitudes quite unlike those they are familiar with. Is it a good thing for them to be thrown into the deep end of these currents to learn to swim? Yes. But we must expect that some of them—minority students, especially—will throw out a range of responses to the provocations and hostility of their peers.
Roderick Ferguson’s book We Demand: The University and Student Protests is an attempt to put campus activism in a radical historic context. Since the 1960s, official responses to student agitation have been conditioned not just by vague civic ideals but by the quite specific intentions that corporate America and the American state have had for university research. And those intentions have run up against the student aspiration for the enfranchisement of minorities and the transformation of the curriculum. We Demand is not an easy book to read, but it conveys how shallow most concerns about free speech on campus tend to be.
Certainly, in our assessment of student activism, we need to bear in mind the history of exclusion. Some of our students may feel a little shaky about their right to be on campus, or about others’ perceptions of their right to be there. In living memory, some of our colleges were explicitly race-restricted institutions. And that sort of history doesn’t just evaporate with the good intentions of highly paid administrators. Think about racist songs, “blackface” parties, and white supremacist processions and put that alongside images of crowds jostling and jeering young men and women like the Little Rock Nine coming into colleges and high schools to desegregate them in the 1950s. Those who dismiss the concerns of twenty-first-century minorities by calling them “snowflakes” and telling them to cultivate “thicker skins” should imagine being nineteen and living in a world that did not always seem fair or unthreatening.
When the Middlebury American Enterprise Institute Club invited Charles Murray to speak on campus in 2017, it could defend the invitation as part of an open and reasoned debate. (Chemerinsky and Gillman note that it was free criticism, back and forth, that led to the discrediting of The Bell Curve in the years after its publication.) The club no doubt relished the element of provocation as their liberal opponents rose to the bait of the invitation. But revulsion against speakers of this ilk is not just intolerance on the left. If we remember the history of inclusion and exclusion then, as Professor Ben-Porath observes, Charles Murray’s
very presence on campus, even if to speak about matters unrelated to The Bell Curve, was seen as undermining the dignity of African-American students, robbing them of their standing as full and equal members of the campus community.
Civil rights law requires us to be alert to the danger of what is called “a hostile workplace environment.” Why not on campus as well? In 2016 Jay Ellison, dean of students at the University of Chicago, wrote a letter to freshmen announcing that the university does not “condone the creation of intellectual ‘safe spaces’ where individuals can retreat from ideas and perspectives at odds with their own.” But safe spaces on campus for minority groups are not incompatible with there also being places on campus—classrooms, for example—where the same people have no choice but to face up to views with which they disagree.
We don’t necessarily have to choose, although Chemerinsky and Gillman seem to believe that we do. They quote a bon mot of Clark Kerr, the famed administrator of the University of California: “The University is not engaged in making ideas safe for students. It is engaged in making students safe for ideas.” But even if they are right, making students safe for ideas is not the same as pacifying them or requiring them to sit still in silence and just listen when hateful ideas are expressed. The stakes are high, and this is not a game. If civic engagement on campus is what we want—especially outside of the classroom—then we have to accept that it is going to be noisy.
Should hate speech be tolerated on campus? A neo-Nazi march across the quad, a racist song booming out from a fraternity? John Palfrey writes that “those who use hate speech often seek to press the limits of free expression purposely.” They are like children testing the rules their parents have set. The transgressive character of their speech is probably key to its attraction. And those who engage in it often give it a spurious justification by citing the First Amendment—as though freedom of speech itself gives one a reason for saying anything in particular.
Hate speech as such is not prohibited in the US, and hate speech prohibitions of the sort one finds in Canada, the UK, and almost all other advanced democracies are of doubtful constitutionality in this country and would probably be struck down by the courts.2 In the UK, what is regulated is speech that is intended or that is reasonably likely to stir up hatred against some racial or ethnic or religious group. Should we be comfortable with the stirring up of hatred on our campuses?
Palfrey defines hate speech differently, as speech that expresses hatred rather than provokes it; but either way he is troubled by it. He says that “as educators, we ought to begin by making clear to students that we consider hateful speech, on campuses and otherwise, abhorrent.” He acknowledges that hate speech imposes a disproportionate burden on minority students. And he says that educators should be alert to the possibility that hate speech is “deleterious to a learning environment.” All quite reasonable. But at the last minute, Palfrey squirms away from any unequivocal call for regulation: “A goal of universities should be to eliminate hate speech, even as some degree of noxious expression must be tolerated by all sides in any debate.”
Ben-Porath too wants to have it both ways. She says we should take seriously the possibility that some are effectively silenced by hate speech, and she acknowledges quite fairly that the “newly widespread sensitivity to harm” that we see among students on campus is not itself just a product of hostility to freedom. She accepts that hate speech aims to undermine the dignity of those it targets, casting them in a light that makes it harder for them to feel that they hold an assured place on campus. But she says we should try to deal with the harm to dignity “in other ways that are suitable for educational institutions while refraining from regulating and censoring speech based on its content.” She doesn’t say what these other methods are, except that they will differ from institution to institution.
Chemerinsky and Gillman offer the most extensive discussion of this issue. I think they accept the argument that hate speech can cause great harm on campus.3 It “genuinely threatens an inclusive learning environment,” they write, “and colleges and universities are right in wishing to protect this environment.” But they say there’s nothing to be done about it. Regulate hate speech and you’ll end up regulating all speech. “Our position,” they say, “is absolute: campuses can never censor or punish the expression of ideas, however offensive.” It’s a bracing sentiment, but I wish they hadn’t veered at the last minute toward formulating their position in terms of offensiveness. Hate speech goes way beyond offense. Would their “absolute” be as convincing if they had said: “Campuses can never censor the expression of ideas, however much hatred they are trying to stir up on campus against members of minority groups”?
These books are all thoughtful. They give the impression of ambivalence and of trying to reconcile conflicting values, though in the end all but one of them (Ferguson’s We Demand) circles back to free speech as an uncompromising commitment. Unlike some manifestations of hysteria on these issues, they don’t try to close down the awkward questions we need to raise against the hoary consensus that today’s students have lost any understanding of the First Amendment. They all say generously that we ought to listen to the students, especially when the students seem to be looking out for each other, and we should not simply assume that they are opposed to freedom. For the most part, however, these books do not come anywhere near a question that Roderick Ferguson puts to us toward the end of We Demand, quoting the cultural critic Tav Nyong’o: “How can we—those of us who profess to educate—accept the student demand not only as a rebuke, which it certainly is, but also as a gift?”
June 28, 2018
It Can Happen Here
See Bill Bishop, The Big Sort: Why the Clustering of Like-Minded America Is Tearing Us Apart (Houghton Mifflin, 2008). ↩
I have argued in these pages (“Free Speech and the Menace of Hysteria,” May 29, 2008, reviewing Anthony Lewis’s 2008 book, Freedom for the Thought That We Hate: A Biography of the First Amendment) and in my book The Harm in Hate Speech (Harvard University Press, 2012) that this is unfortunate, but that is not my purpose in this piece. ↩
See, for example, Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberle Williams Crenshaw, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Westview, 1993). ↩