I’ve long urged all colleges and universities, including private ones, to adopt a speech code that adheres as closely as possible to the First Amendment of the Constitution. The few exceptions, like specifying the “time, place, and manner” of protests, are made simply to avoid demonstrations from disrupting the main business of colleges: teaching and learning.
The University of Chicago and its “Free Expression” policy has now been adopted by 110 American universities, but there are many more who haven’t yet (there are roughly 4,000 colleges and universities in America).
Further, fewer than a dozen schools have adopted the principle of institutional neutrality embodied in Chicago’s “Kalven Report”, which prevents the university and its units from making any political, ideological, or moral statement—with the rare exception that statements are permitted when they bear directly on the teaching, learning, and research mission of the university. A neutrality principle is important because it prevents the university from taking official ideological positions that might chill the speech of those who dissent from such positions.
A similar defense of the neutrality principle, for scholarly associations, by the way, just appeared as an op-ed in the WSJ, written by our former provost Daniel Diermeier, now Chancellor (aka President) of Vanderbilt University. You can read it by clicking below, or find it archived here:
A quote:
The American Association of University Professors sparked a firestorm in higher education last month by reversing its longstanding opposition to academic boycotts. As wrongheaded as that move was—and as poorly received as it was by many, including the group representing America’s leading research universities—the real trouble with the AAUP began in February, when the organization signed on to a petition from organized labor calling for a cease-fire in Israel’s war in Gaza.
It is inappropriate for the AAUP to take a position at all on the war in the Middle East. Here is an important guardian of academic freedom—the essential rights of professors to study, write and say what they like—espousing a particular ideological position, thereby sending the message to its members that there is only one correct way to think about the war.
. . . This is a problem for several reasons. There is the chilling effect on debate, and the potential silencing of dissenting members, that occurs when a professional association declares there is only one right way to think about an issue. There is the risk of eroding the organization’s legitimacy and effectiveness by turning it into one more political player or advocacy group. And there is the undermining of respect for earned and credentialed expertise, the foundation of academia, that results when leaders of an association whose discipline is unrelated to the topic at hand opine on the issue nonetheless. But what concerns me most are the damaging consequences that position-taking by academic associations can have on the careers of individual faculty members.
But I digress, for the topic at hand is Sunstein’s op-ed. I just happen to agree nearly completely with both pieces, which lay the ground work for free speech and academic freedom.
At any rate, Cass Sunstein, a professor of law at Harvard (and formerly at the University of Chicago), has written a NYT op-ed emphasizing that yes, colleges and universities should follow the free speech guidelines of the First Amendment as they have been interpreted by the courts. You can read the article by clicking on the headline below, or you can find it archived here.
I’ll add the Sunstein is of Jewish descent given his statements about speech that may be anti-Semitic. His introduction:
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 by the university, 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.
. . . It is true that the First Amendment, as framed, does not apply to private colleges and universities — only to public officials and institutions. If Harvard, Stanford, Baylor, Vanderbilt, Pomona or Colby wants to restrict speech, the First Amendment usually does not stand in the way (though a state might choose to apply First Amendment requirements to colleges and universities, as California has in fact done).
Still, most institutions of higher learning, large or small, would do well to commit themselves to following the First Amendment of their own accord.
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.”
Agreed, and remember, as Sunstein emphasizes, the courts have placed limits on free expression: no defamation, no false advertising, no sexual harassment, no speech intended to provoke imminent and lawless violence. The last one, and several others, are relevant to the abrogations of speech likely to occur on campus this year:
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, it is not protected merely because the 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.
Sunstein then quickly lays out a program of what speech should be permitted (and again, he’s talking largely about campuses, for this is where the problem has become most acute, at least for academics). Colleges should not ban speech because of its viewpoint. Colleges should not restrict speech based on its content—unless that content inhibits the mission of the college (for example, if a professor in an evolution class starts fulminating about politics). Here’s another sensible exception:
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 he believes it is 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.
Most important, colleges and universities should not (and public ones cannot) forbid “hate speech”, for that’s a slippery term that, unless designed to incite imminent and predictable violence, could encompass any statements that people find offensive, including criticism of affirmative action or religion. I, for example, should be free to stand in the middle of the University of Chicago campus and shout “gas the Jews!”. (If you’re shouting it to a group of Jews who could enact violence, however, that is banned speech.) Such words are reprehensible, of course, and I’d never say them, but I would defend those who would. And for sure that’s “hate speech”.
Sunstein shouldn’t have to write such an op-ed, as the value of the First Amendment is obvious, especially on campus, where the clash of ideas, many of them “offensive,” is supposed to take place as the way to sort out good ideas from bad, truth from falsehood. But each generation of students needs to learn this anew, which is why our University, and many others, will be giving entering students a short introduction to the meaning and application of the First Amendment. As Sustein concludes,
. . . 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.
Supreme Court Justice Oliver Wendell Holmes wrote in one of his opinions that “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”
This was a case involving political beliefs, not their expression, but the right to express beliefs would logically follow. If we don’t express our political beliefs, no one else knows what they are and can’t be hurt by them.
I fully agree.
Or, in reference to the recent post on Mt Holyoke, “Trans Women are Men.”
I hear you, Sastra.
“If a teacher of physics says he believes it is 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.”
However
“I, for example, should be free to stand in the middle of the University of Chicago campus and shout “gas the Jews!”.”
Yet, if Jewish people should be murdered then pursuing that goal is incompatible with their teaching or learning anything. So it is unclear why the former speech qualifies for discipline and the latter speech does not.
There is of course a difference. My shouting a reprehensible slogan in the quad is not coercive in that nobody has to listen to it and can publicly avoid me or ostracize me. But a class is a captive audience and is forced to listen to what I say. The former will not result in any genocide (not a single Jew was killed (and one injured, during all the widespread campust protests, many of which implicitly called for genocide in the “from the river to the sea” slogan), so no learning is impeded, but the latter may have real consequences on student education. as women students feel that their teacher discriminates against them.
The courts have made these rules, not I, but I can’t say I disagree with them.
I can accept that there is a relevant context difference based on the different status/role of the speaker. However, I am very uncomfortable with more generally dismissing some speech as unserious because that speech is extreme, as you appear to be doing.
I don’t think Jerry is dismissing some speech as unserious just because it’s extreme. Rather it’s unserious because neither the speaker nor his audience has the means there and then to give effect to his extreme speech. If a mob was gathered outside an empty synagogue and happened to have thought to bring along torches and cans of kerosene, then “Burn it down!” would I think be considered illegal (because serious) incitement, even though less “extreme” than calling for whatever is implied by “River to the Sea.”
What is different about the two examples is that when someone stands in the middle of the quad and shouts “gas the Jews!,” you cannot assume that the public will be persuaded and then proceed to gas the Jews. The First Amendment only allows that kind of speech to be regulated when its likely to imminently incite the violence. For example, when chanting that same phrase to a worked up crowd in the face of counter-protesters. When it isn’t likely to imminently produce the violence, the speaker is free to speak because the audience has time to contemplate whether they agree with the message and whether to act on it. The classic, overused example of actually producing imminent danger, is when someone falsely shouts “fire” in a crowded theater, the audience acts instinctively and people get hurt.
The professor who says its hopeless to to try to teach physics to women, is talking about their attitude about performing their duties.
The latest data:
Gallup: U.S. Confidence in Higher Education Now Closely Divided. July 8, 2024
Nearly as many U.S. adults have little or no confidence as have high confidence
https://news.gallup.com/poll/646880/confidence-higher-education-closely-divided.aspx
Of course, the decline of confidence in academia has been caused by the behavior of college & university teachers and administrations.
For examle,
Another example is cancel culture.
Excellent piece. Thank you for bringing it to our attention. Let’s hope that Sunstein’s article is widely read and that people also read the thoughtful commentary that takes place here at Whyevolutionistrue.com and elsewhere.
The topic is very important, in that many of our future leaders get their starts at our universities. Today’s students need to learn—and to employ consistently—the well considered principles of First Amendment speech and its limits. Today, it seems, many are being indoctrinated into a distorted conception of this truly great, and innovative, American institution. The future of the United States as a free society depends on getting this fixed.
The time is right for all universities to teach required courses on the First Amendment. I’m just not confident that today’s activist professors are up to the task.
The University of Chicago has a program in place that will teach First Amendment principles to incoming students. The unit will not be taught by “activist” professors but by ones who are in favor of the Chicago Principles of Free Expression.
“Colleges and universities exist for one reason above all”
Childcare?
(I’m quite agitated about the Mt Holyoke pomosity.)
I draw the line when it’s basically abusing or attacking out of spite.
Ah yes, the spite clause in 1A. I almost forgot about that.
Being an aspie I know abuse done for the sadistic sake of it well.
Yes, everyone is welcome to draw the line where they want, but public colleges and universities MUST adhere to the First Amendment (and remember, some forms of abuse do violate that Amendment). See the list of colleges and universities at FIRE that have signed on to the Chicago Principles, though: many are private colleges, like Georgetown and Vanderbilt. There, too, you can draw a line, but the college’s line is not yours.