Understanding Free Speech Controversies on College Campuses: A Summary of a Very Helpful Conversation Between Two Leading Analysts—Erwin Chemerinsky and Geof Stone

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Posted in: Constitutional Law

It is usually a happy coincidence when my two professional roles—constitutional scholar/teacher and academic administrator—come together in a work task. Such was the case a few weeks ago, when I had the pleasure of moderating and participating in a University of Illinois, Urbana-Champaign campus-wide event focused on campus free speech principles and featuring two noted constitutional commentators, Geof Stone and Erwin Chemerinsky. In addition to being influential First Amendment thinkers, both Geof and Erwin have substantial high-level university administrative experience under their belt; Geof served as the dean of the Law School at the University of Chicago and then as the University’s provost, and Erwin was the founding dean of the UC Irvine School of Law and is currently the dean of the UC Berkeley School of Law.

Largely because of the depth and thoughtfulness of the two main participants, I found the discussion to be among the most substantive and sophisticated I have heard over the past several years on this very important topic. Geof and Erwin began by laying out many areas of agreement among courts and scholars who have looked at free speech flare-ups on public university campuses over the past several decades. For example, they discussed the unfortunate but unavoidable reality that hateful speech does not lose its constitutional protection because of its odious motivations, and that as a result so-called “hate speech” codes are for the most part hopelessly constitutionally flawed. (For purposes of the discussion, the participants really didn’t draw many distinctions between public and private universities, since most prominent private universities try to hold themselves—sometimes, as in California, because state law requires them to do so—to the same First Amendment standards that bind public institutions. Erwin and Geof also explained why people who protest against unpopular speakers by trying to shout the speakers down or otherwise obstruct the events can (and ordinarily should) be subject to discipline. On the other hand, both Erwin and Geof were very clear to highlight the ways in which university authorities can and should protect individuals from true threats, from harassment (which has a legal definition focused on how targeted and persistent a particular course of offensive expressive conduct is) and from defamation.

Three of us then mused about why many (most?) college students today seem not to embrace the basic notion that conservative speech that they find to be stigmatic, offensive, unsettling, and even infuriating must nonetheless be permitted to be uttered and heard on college campuses so long as it doesn’t cross the line into threats, harassment, or defamation. Among the explanations offered for the attitudes of modern college students were:

  1. A failure of college students today to appreciate that if majorities are allowed to silence minorities, then throughout American history righteous groups like the abolitionists, civil rights protestors, women’s rights advocates, and others would not have been able speak and convince people of the justness of their causes;
  2. A similar failure of modern college students to appreciate that while their left-of-center viewpoints may be majoritarian and mainstream on college campuses, these viewpoints may be minority sentiments in the larger society students will enter (and want to speak in) after graduation;
  3. Parenting styles over the last generation that may have made some college students ill-equipped to cope with people who make them feel uncomfortable; and
  4. A greater sense of empathy among young adults today (perhaps partially a product of social media and increasing integration) that allows a wider swath of students to feel the pain suffered by individuals who are part of racial, religious, or gender minority groups who are often the explicit or perceived targets of some of the speakers causing dustups at campuses around the country.

There were two important topics we discussed that I feel don’t get enough attention and that are particularly challenging. First is the appropriateness/wisdom of university administrators speaking out—on behalf of their institutions—to criticize hateful speech that must be tolerated but that need not be encouraged. Erwin, drawing on one episode that arose when he was a faculty member at the University of Southern California and a more recent one in the short time he has been at Berkeley, felt it was a dean’s job to speak out and condemn prominent expressions of bigotry and intolerance that take place at a law school in a way that makes them highly visible to the community, even though those expressions in many cases might have been perfectly constitutionally protected (and thus immune from punishment). For Erwin, the biggest factor in deciding whether to speak out, in his capacity as a dean, against such expressions of racism, sexism, religious hostility, etc. is simply his desire not to speak so frequently that people stop listening to him. But putting aside his strategic concern over picking his spots, Erwin saw no philosophical problem with the university weighing in on one side of various public policy debates.

Geof, by contrast, articulated and defended a much narrower conception of the university as speaker, one to which the University of Chicago tries to adhere. Geof described efforts that were made when he was a student at the Chicago Law School to try to get the administration to condemn the Viet Nam War as unjust, but to no avail, given the University’s stance that it should not weigh in on contested public policy matters that themselves do not involve the core of the University’s academic operations. Although as a student Geof did not fully appreciate the virtues of the University’s policy, he now sees its correctness. And for Geof, modern episodes of hate speech are often similar to the controversy over the Viet Nam War—people have understandably strong opinions about such episodes, but the university’s role is to ensure that individuals get to air those opinions, not to shape or influence them by university imprimaturs or condemnations. Indeed, for Geof, the very reasons that we allow and encourage a broad range of speakers on college campuses in the first place—our desire to facilitate a robust marketplace of ideas and encourage people to learn how to process information and arguments and come to their own conclusions—argue strongly in favor of the university keeping its own institutional mouth shut. For Erwin, the key line is between regulation and condemnation; as long as speakers remain free (in the regulatory sense) to utter their controversial messages, they need not be immune from whatever persuasive influence the university itself might exert on the community audience.

I think this divergence between Geof and Erwin raises an interesting set of questions. One might relate, empirically, to how constrained people actually feel when they are criticized by administrators who run an institution. Another might be, more philosophically, how useful, in the “marketplace of ideas,” is the participation of government or quasi-government actors. Certainly when government speaks out against smoking in public service ad campaigns, I don’t sense that many people think the government is acting/speaking inappropriately (even though the risks/benefits of smoking and the behavior of the tobacco industry are certainly matters for public debate). But maybe that is just an exceptionally unobjectionable example of government speech. Or perhaps college campuses are special places where those in charge should be especially careful not to unduly influence young minds reaching maturity. Important questions that deserve much more attention.

So, too, does the last topic I will mention that we discussed—the question of when the costs of providing security for controversial speaker events justifies the cancellation or termination of the event. Supreme Court and lower court case law is extremely underdeveloped here—leading Erwin to suggest we don’t really know what the rules are going to be. One leading Supreme Court case from a quarter century ago involved an attempt by a county to calibrate the fees it charged (up to $1,000) to people who sought a (required) permit to hold large parades or rallies according to the costs the county would incur in ensuring safety and good order during the particular event. The Court, by a 5-4 vote, struck the law down on the ground that it conferred too much discretion to county administrators to set the fees in individual cases, which could open the door to content- or viewpoint-based discrimination. And all nine justices seemed to agree that it would be impermissible to require a speaker to pay for security costs that arose because opponents to the speaker might show up and cause trouble; that would, said the justices, confer a “heckler’s veto” that would be inconsistent with the First Amendment’s core idea that unpopular speakers should not be shut down simply because they are in the minority (for the moment).

The Court’s sentiments are quite understandable and indeed laudable, but I’m not sure how to absolutely to apply them, especially to modern university settings. Fees up to $1,000 seem quaint in a world where UC Berkeley said it had to spend several million dollars to prepare for a week of conservative speakers coming to campus at the invitation of student groups. I think that invitations to individuals to speak in classrooms and other nonpublic parts of campus—invitations that a university didn’t have to extend in the first place—should be rescindable on account of anticipated cost. But the question is harder when outside groups seek to use traditional or designated public forum parts of public university campuses (like a main lawn or the area outside the administration building) for events that raise legitimate security concerns. Geof offered his quite sensible view that if things at a particular rally or speech are truly getting out of hand and public safety is being compromised, university officials can shut down the event. But if that is so, then why can’t they block an event before the fact, when they can produce clear (non-speculative) evidence to suggest violence is likely to ensue? To be sure, aspects of First Amendment doctrine (like the rule against prior restraints) reflect an aversion to before-the-fact impediments on speech (impediments that may reflect unfounded fear of the harm the speech is likely to cause), but surely universities should be able to avoid the very first human casualty from occurring, and shouldn’t have to wait until the violence breaks out before acting.

If the rejoinder to my last suggestion is that the university simply needs to spend more money up front to ensure safety (and rein in the persons likely to initiate the violence), we run up against the problem that universities don’t have robust revenue generating devices the way cities and counties do, and their primary mission, of course, involves the classrooms and laboratories more than it does massive rallies and demonstrations (even if the latter be a significant extracurricular component of the educational experience.) Moreover, it would be odd to say that regulators can shut down an event that seems to be getting out of hand in part because they didn’t spend enough on safety up front, but they cannot cancel or block an event for which there are also inadequate safety measures in place, before the fact.

Erwin’s (admittedly unsatisfying) advice to his chancellor about how much the First Amendment requires her to spend on facilitating controversial speakers who planned to use campus as a venue was “a reasonable amount.” I expect that, given the frequency of controversial events that involve college campuses (in part because outside groups are seeking to make ever-greater and more strategic use of college venues), and the enormous security costs involved these days (that were simply unthinkable 25 years ago), the courts are probably going to have to provide some more finely grained guidance.

For those interested in watching/hearing the Stone/Chemerinsky discussion I moderated, here’s a link: https://www.youtube.com/watch?v=b3eT7MKoXsE