Rick Shweder is a cultural anthropologist with the title of Harold H. Swift Distinguished Service Professor of Human Development here at the University of Chicago. Like many of us, Rick is involved in trying to preserve and teach the Chicago Principles of Free Expression as well as the Kalven Report.
His latest effort is a well-written piece for the City Journal about the various types of “free” speech available. He’s concerned mostly with what goes on in private universities like ours, and his message is that both public and private universities should adhere to pure First Amendment free speech, which, in colleges, comes with court-approved “time, place, and manner” (TPM) restrictions. But be aware that his discussion is centered on private universities.
Click below to read:
First, here are Shweder’s three speech options that, he says, are available to private colleges (his words are indented):
Both Columbia and Harvard are private institutions and can set their own speech policies. Such schools, broadly speaking, have three options in crafting their codes. First, they can provide students with speech rights mirroring those guaranteed by the First Amendment. Second, they can prohibit “offensive” or otherwise unwelcome speech. Third, they can require academic manners of speech on campus. Any private institution must choose from, or strike a balance between, those three options.
I’ll take the options separately:
The pure free speech option:
The first option, which we’ll call the “First Amendment model,” is the preferred speech policy at most secular private universities in the United States. That policy protects (and restricts) campus speech much the way our courts protect (and restrict) speech in the public square. Harvard president Claudine Gay likely had this model in mind when she refused to give a categorical “yes” or “no” answer to the genocide-advocacy question.
. . . and how it’s supposed to work:
My University of Chicago colleague, Geoffrey Stone, author of “The Chicago Principles,” explains why a First Amendment–embracing private-university president may have struggled to answer Stefanik’s question:
If the University embraces the principles of the First Amendment for public speech, then advocating the genocide of a group in public discourse could not be punished or prohibited unless it creates a clear and present danger that the conduct that is advocated would in fact occur. That is the lesson the [Supreme] Court learned from decades of allowing speech to be prohibited if it advocates unlawful conduct (such as refusing to comply with the draft or attempting to overthrow the government). The real harm from the advocacy of genocide is not that it is likely to cause genocide, but that it is seen as offensive and hurtful. That is not a sufficient justification for prohibiting speech in public discourse. Another concern is that it might cause people to discriminate against or even physically harm Jews. But that doesn’t satisfy the demands of the First Amendment any more than would public speech accusing people who perform abortions of being murderers.
First Amendment principles distinguish between advocacy (which is constitutionally protected) and likely incitement of an immediate and grave harm (which is not), and between verbal harassment directed at a particular group (which is constitutionally protected) and verbal harassment directed at a particular individual (which is not). If Harvard were committed to upholding the First Amendment model (which is doubtful), Claudine Gay would be right to say that context matters in determining whether a call to genocide constitutes prohibited speech.
No university in America today, however, fully embraces First Amendment principles. For example, heckling and shouting, provided it does not deprive anyone of their right to speak, is constitutionally protected speech in the public square but is banned at most private universities.’
Note, however, that courts make a distinction between what’s said in the public square and what’s said on college campuses, so that heckling and shouting and disruption can be banned in even public universities without violating the First Amendment. The University of Louisville, a public university in Kentucky, emphasizes that TPM restrictions apply to their campus to preserve freedom of speech and do not violate the Constitution:
The First Amendment requires that the government not discriminate against particular viewpoints. The Supreme Court has, however, upheld the idea that speech may be regulated under “Time, Place, and Manner” regulations. The burden of such regulations is still fairly high, requiring the government to show that their restrictions on speech are (1) content neutral (that the government does not outlaw content specific viewpoints), (2) narrowly tailored to serve a governmental interest (i.e., cannot be overly broad to regulate more than what is necessary to achieve government interest like, for example, public safety), and (3) ample alternative means to express ideas. At UofL, for example, the time, place, and manner regulations are a reflection of the value of encouraging diverse ideas, community engagement on campus, and academic freedom while also preserving interests including campus safety.
Students or student organizations have the right of freedom of expression to the extent allowed by law. The University reserves the right to make reasonable restrictions as to time, place, and manner in certain situations as outlines to the Code of Student Rights and Responsibilities.
The government interest in (2) above is in preserving freedom of speech itself by not allowing unwarranted disruptions that could impede discussion.
The prohibition of “offensive” speech.
The second policy option, which acknowledges private schools’ right to regulate the content of on-campus speech, goes beyond most schools’ bans on heckling. This option, which we’ll call the “regulatory approach,” aims to restrict speech that is repellent, alarming, or disparaging of a particular group. Shafik’s recent congressional testimony, in which she endorsed penalties for hurtful or repugnant speech, suggests Columbia embraces the regulatory approach, as private universities are legally free to do.
Is it possible to reduce “offensive” speech without implementing formal sanctions? Harvard professor Danielle Allen thinks so. In the Washington Post, Allen proposed that students abide by the following self-censoring principle: “If the communications you use while protesting would constitute harassment if targeted at a specific individual, the presumption will be that the protest method is likely to create a pattern of generalized intimidation incompatible with a culture of mutual respect.”
But this isn’t a good test, for “offensive” speech need not constitute harassment even if targeted at a specific individual, for specific individuals could claim that they’d be harassed if faced with, for instance, pro-life messages (Shweder’s example), anti-affirmative-action messages, or an infinite number of messages that might offend people but wouldn’t be “harassment” in the normal sense. The showing of paintings of Muhammad at Hamline University, for example, was claimed to create intimidation and harm, but this was perfectly consonant with a college atmosphere that promotes discussion. Nevertheless, the professor who showed the images was let go.
Preservation of “academic manner” of speaking.
As Shweder presents it (and he’s clearly thinking of what has happened on our campus), preserving the “academic manner of speech” overlaps substantially with preserving the TPM restrictions, which themselves create an atmosphere that promotes free discussion:
This third option, which we’ll call the “manners approach,” reflects those principles. It refuses to regulate the content of speech. Instead, it focuses exclusively on the form of speech and procedures of civil intellectual engagement that define and give character to a free-thinking and critically reasoning academic speech environment. Some manners of speech, such as shouting down invited speakers, are widely recognized to be incompatible with the mission of a university.
After all, why should a private school permit a political demonstration in which slogans are shouted at captive audiences in offices or classrooms within earshot? Such speech events are asymmetric, non-cooperative, and dogmatic. Typically, the discourse scene for the event is aggressively controlled by a group of energized and committed true believers, and neither debate nor dialogue nor discussion nor rational argument is invited or welcome. The manners approach invites private universities to distinguish their quadrangles from a public park or a rally ground. One of the many problems demonstrations like those at Columbia present is that they breach the peace of the university and subvert the trust and cooperation necessary to sustain dialogue and debate in a community of scholars.
I would claim that this doesn’t really differ from the First Amendment option, as that option itself regulates TPM, creating an “academic manner” of speech.
Now it’s pretty clear that Shweder believes that all private universities, as well as public ones, should adopt the First-Amendment model, and if Harvard and Penn had done that (they sort of have one, but apply it inconsistently), then the Presidents wouldn’t have gotten the Congressional drubbing they did. It was more the hauteur with which the three Presidents answered, as well as their failure to explain why the “it depends” nature of calls for genocide really can be Constitutional, that brought two of the three down (Gay might have survived had she not committed plagiarism).
At the end, when Shweder asks the question “Which of these three options—the First Amendment, regulatory, or manners approach—should private universities pursue?”, he gives a quote from 1946 by Columbia University President Frank Fackenthal that suggersts that the First Amendment approach is the one that private schools should use, ergo one that all universities should use. (Religious universities may be an exception, but Shweder doesn’t consider them.)
I’m in full agreement with this conclusion but finish with the two quibbles I have with the article. To repeat:
First, I think there is a time and place to use signs and banners, though they’re no replacement for reasoned speech. And they are constitutional. Putting down the megaphones, however, is a good idea, as amplified speech serve only to disrupt campuses. It certainly did here, as some faculty had to move or cancel their classes near the Quad when denizens of the encampment began changing through megaphones outside the permitted hours.
Second, and more important, TPM restrictions are fully consonant with the First Amendment. Therefore, if universities do make rules limiting the time, place, and manner of public speech, and those rules are not unreasonable and meant to further academic discourse, they are still adhering to Constitutional forms of speech. This is important to realize, for a lot of misguided faculty members construe disruptive encampments, sit-ins in buildings, and the use of megaphones, etc. as “free speech”. It is not—at least not according to our Constitution. Thus I disagree with Shweder when he said this:
No university in America today, however, fully embraces First Amendment principles. For example, heckling and shouting, provided it does not deprive anyone of their right to speak, is constitutionally protected speech in the public square but is banned at most private universities.
Heckling and shouting and deplatforming are also banned at many public universities, and, at any rate, deplatformng speakers, heckling and shouting are fully in line with First Amendment principles for some places—including universities. Thus it’s wrong to say that “no university in America today. . . fully embraces First Amendment principles.” Certainly the University of Chicago does, as well as public schools like the University of North Carolina at Chapel Hill. Michigan State, and the University of Texas system.
The realization that the Chicago Principles of Freedom of Expression are the rules most conducive to allowing free academic discourse is why more than 100 U.S. colleges and Universities, both public and private have adopted them.
Free, free speech!
Nice exposition of how hewing to your First Amendment still supports enforcing an “academic manner” of free speech. I’m gathering that occupying a quad with tents that not only impede the use of the quad by other members of the University but also directly break the University’s rules under which it allows its property to be used — No erecting of tents on University property — , is also a violation of TPM restrictions that the University can act against. So why were some faculty at UChicago arguing that the University ought not to have dismantled the encampment? Did they think this was 1A-protected “speech” or were they merely partisan supporters of the occupiers’ cause and wanted to see it indulged by the University as far as they could press it?
At our stalemated encampments in which the media have lost interest, it isn’t clear if a fixed encampment violating a “No tents” rule represents freedom of “expression” which is protected (weakly) by our Charter of Rights and Freedoms, which doesn’t protect property rights at all. Nor is it clear if the Charter even applies on what is at least nominally private property. But unlike other private property, such as a shopping mall, the universities have at least given lip service to the Chicago Principles. Are they Court-enforceable? We don’t know.
Prof. Schweder’s article, and your comments on it, might (I hope) prove useful in resolving this question for us.
Stellar, crystal clear.
It is worth noting, though:
Communists share your vocabulary but they don’t share your dictionary
James Lindsay uses this quote, and is how I found it, but I’m not sure who coined it first.
I’m still confused about the balance between constitutionally protected speech and the right of each student to be free of harassment and intimidation. If I was a student with dual Israeli and US citizenship studying at an American university and I faced calls for my death and the death of my family when I walked by a group of protesting fellow students and faculty, I would believe that my right to feel safe was being violated, that I couldn’t get a fair grade from any faculty member associated with such hateful behavior, and that my ability to get an education at the institution had been compromised or even cancelled. The line between free speech and bullying seems a bit porous if calls for the death of any group to which a student, faculty, or staff might belong is considered to be protected political speech. Given the way mob speech has led to mob violence throughout history, yes, January 6th, I’m thinking about you, calls for the genocide of any group should be prohibited at any educational institution. And in any public square in which more than X number of people are gathered. The human mob brain can be dangerous on its best day and can lead to genocide and mayhem on its second best day. Of course, a problem with this principle is its subjectivity, so, perhaps like college administrators, I’m not sure my attempts to control protestor bullying wouldn’t be worse than the bullying itself. Sigh. Good thing I’m not a college administrator.
And the never-ending struggle and tradeoffs continue between safety (or security) and freedom. If only there were a notion of “safe” to which everyone would agree. Or the idea of when a crowd becomes a mob. Or whether one should ban large gatherings of people with known and disreputable ideas who might become a mob. Perhaps, as you say, the attempts to control and protect can become more egregious than the offenses to which one responds. The same problems play out in the national security arena. When is the treatment worse than the disease? Note that I did not say “cure.”
It dismays me greatly when I hear a president say that his most important responsibility is to keep Americans safe. His chief responsibility is to “preserve, protect, and defend the Constitution.” Doing so might require him to put many people in a decidedly unsafe position. But insisting on safety and security for all, at all times, can quickly undermine the very Constitution that one claims to protect. Are there parallels at the university level? What is the equivalent of the Constitution? The mission to seek truth? To preserve and advance knowledge? Can these coexist with an ethos of safety, let alone a selective application of claims to truth and safety?
I think you’ve posed a very interesting question. Seems the Kalven Report could be worked into the answer somehow by someone much smarter than I. Where’s Leslie?…or Jerry
I appreciate the call-out, Debi, but I’m not the right one. Canadians have hate-speech laws to contend with; Kalven and 1A are uniquely American contributions. (Long may they live.) Jerry’s your man, here.
“If I was a student with dual Israeli and US citizenship studying at an American university and I faced calls for my death and the death of my family when I walked by a group of “protesting” fellow students and faculty, I would believe that my right to feel safe was being violated, that I couldn’t get a fair grade from any faculty member associated with such hateful behavior, and that my ability to get an education at the institution had been compromised or even cancelled.”
If the mob threatened imminent violence against that student specifically—for sullying their pure tent city with his dirty Zionist presence—the First Amendment protection wouldn’t apply. What you’re describing in the paragraph above might be subject to a lawsuit against the university under Title VI of the Civil Rights Act if that speech prevents the Israeli-American student from getting an education based on national origin.
I think that the college administrators were caught off guard. They didn’t anticipate the intensity of the protests, how well organized they would become, the wall-to-wall press coverage, the pushback from Congress, the withdrawal of support from donors, or the Title VI lawsuits. Universities either didn’t have clear policies, or they didn’t enforce them, or their administrators hadn’t formulated consistent responses before having to deal with real situations. All of this has been partially responsible for the current crisis on campus.
I, too, am glad I’m not a college administrator, but this is what they signed up for. They need to up their game.
Also the very personal verbal attacks against students merely for being Jewish. That is what, to me, was so abhorrent about these protests. It was uncalled for. The students on American campuses had nothing to do with the war in Gaza.
Especially given the recent emphasis on “microaggressions” and the like. Suddenly, completely forgotten.
I recently read Richard Hofstadter’s Columbia University Commencement Address from 1968 (available on JSTOR) and was struck by how relevant it remains. Some excerpts follow.
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A university is firmly committed to certain basic values of freedom, rationality, inquiry, discussion, and to its own internal order; but it does not have corporate views of public questions. Administrators and trustees are, of course, compelled by practical necessity to take actions that involve some assumptions about the course and meaning of public affairs; but they know that in so doing they are not expressing a corporate university judgment or committing other minds. Members of the faculties often express themselves vigorously on public issues, but they acknowledge the obligation to make it clear that they are not speaking in the name of their university. This fact of our all speaking separately itself a thing of great consequence, because in this age of rather overwhelming organizations and collectivities, the university singular in being a collectivity that serves as a citadel of intellectual individualism.
A university is a community, but it is a community of a special kind—a community devoted to inquiry. It exists so that its members may inquire into truths of all sorts. Its presence marks our commitment to the idea that somewhere in society there must be an organization in which anything can be studied or questioned—not merely safe and established things but difficult and inflammatory things, the most troublesome questions of politics and war, of sex and morals, of property and national loyalty.
It is governed by the ideal of academic freedom, applicable both to faculty and students. The ideal of academic freedom does indeed put extraordinary demands upon human restraint and upon our capacity for disinterested thought.
Yet these demands are really of the same general order as those we regard as essential to any advanced civilization. The very possibility of civilized human discourse rests upon the willingness of people to consider that they may be mistaken. The possibility of modern democracy rests upon the willingness of governments to accept the existence of a loyal opposition, organized to reverse some of their policies and to replace them in office. Similarly, the possibility of the modern free university rests upon the willingness of society to support and sustain institutions part of whose business it is to examine, critically and without stint, the assumptions that prevail in that society. Professors are hired to teach and students are sent to learn with the quite explicit understanding that they are not required to agree with those who hire or send them.
The university does in fact perform certain mundane services of instruction and information to society—and there are those who think it should aspire to nothing more. It does in fact constitute a kind of free forum—and there are those who want to convert it primarily into a center of political action. But above these aspects of its existence stands its essential character as a center of free inquiry and criticism—a thing not to be sacrificed for anything else. A university is not a service station. Neither is it a political society, nor a meeting place for political societies.
If an attempt is made to politicize completely our primary centers of free argument and inquiry, they will only in the end be forced to lose their character and be reduced to centers of vocational training, nothing more.
Total and pure neutrality for the university is in fact impossible, but neutrality should continue define our aim, and we should resist the demand that the university espouse the political commitments of any of its members. That means, too, that the university should be extraordinarily chary of relationships that even suggest such a political commitment.
The university is the only great organization in modern society that considers itself obliged not just to tolerate but even to give facilities and protection to the very persons who are challenging its own rules, procedures and policies. To subvert such a structure is all too easy, as we now know. That is why it requires, far more than does our political society, a scrupulous and continued dedication to the conditions of orderly and peaceable discussion. The technique of the forceable occupation and closure of a university’s buildings with the intention of bringing its activities to a halt is no ordinary bargaining device—it is a thrust at the vitals of university life. It is a powerful device for control by a determined minority, and its continued use would be fatal to any university.
“But above these aspects of its existence stands its essential character as a center of free inquiry and criticism — a thing not to be sacrificed for anything else.”
Maybe there’s the parallel to the Constitution commenter Doug was searching for in his tag off Suzi at #3.
Shweder: ” . . . heckling and shouting, provided it does not deprive anyone of their right to speak, is constitutionally protected speech in the public square but is banned at most private universities.”
Where would Shweder draw the line of heckling and shouting sufficient to deprive anyone of their right to speak (and listeners’ right to hear)? Speaker to heckler: “I guess I’ll just wait my turn.” (Heard Hitch say that once.)
Can one reasonably reverse the situation: “Is my formal public address interrupting your heckling and shouting?”
(Anyone who has taught K-12 knows it only takes one or two doing and saying not all that much to disrupt a class. Teacher/Professor in class: “Sir, with your permission – and of course at your convenience – I’d like to conduct this class.”)