Vox December 31, 2017
Headline: Hate Speech Banned
Byline: Robert Post

We are witnessing an escalating chorus of complaints that modern universities are trampling on the First Amendment. Universities stand accused of catering to the weakness of students with “fragile egos,” in Attorney General Jeff Sessions’s words, who cannot bear to be offended by ideas that they oppose.

“Freedom of thought and speech on the American campus are under attack,” Sessions said at Georgetown in September, in a speech that referred to several incidents that have become touchstones for free speech advocates — including the controversy that erupted at Berkeley when right-wing columnist Ben Shapiro spoke, and the shouting down of The Bell Curve author Charles Murray at Middlebury College last spring. Especially deplorable was the fact one of Murray’s hosts, a professor, was injured in a post-speech scuffle.

Seen in its best light, the controversy about free speech in American universities bespeaks fear that the next generation of Americans will not have been educated to engage in public debate, which necessarily entails encounter with alien and frequently outrageous perspectives. That is a problem well worth addressing, especially as our politics grows more diverse and more polarized. Universities do have a great responsibility to educate students for citizenship in a country violently split along lines of ideology and identity.

The language and structure of First Amendment rights, however, is a misguided way to conceptualize the complex and subtle processes that make such education possible. First Amendment rights were developed and defined in order to protect the political life of the nation. But life within universities is not a mirror of that life.

 The Supreme Court has often observed that the First Amendment is the “guardian of our democracy.” By guaranteeing that all can participate in the formation “of that public opinion which is the final source of government in a democratic state,” the First Amendment lies at the foundation of our self-governance.

The noted legal scholar Alexander Meiklejohn once said that the First Amendment created an “equality of status in the field of ideas.” It prevents the state from excluding persons from public discourse on the basis of what they have to say. It extends to each citizen the promise that they will enjoy the equal right to influence the development of public opinion.

But here we are talking about public discourse: the free flow of ideas in newspapers, in public squares, on debate stages, on theatrical stages, in art galleries and concert halls. Outside of the sphere of public discourse, equality is not so obviously desirable. Consider, for example, doctors and their patients. The law properly does not treat doctors and their patients as equals. We do not apply to doctors sued for malpractice the core First Amendment doctrine that “there is no such thing as false idea.” We hold doctors accountable for their expertise.

There are in fact many areas of our social life where we expect persons to act with competence, and where the law properly defers to accepted bodies of knowledge. We abuse the First Amendment by misapplying it to such areas. We risk diluting its essential meaning and force. That is the error made by Sessions and many others.

Universities exist to serve the twin missions of education and the creation of knowledge. Universities hire and tenure faculty based on the quality of their ideas. Universities grade and evaluate students based on the quality of their ideas. The purpose of universities is to teach students how to discriminate between better and worse ideas, as well as to determine what we know on the basis of our best possible ideas.

No university, public or private, could perform its mission were it not permitted to evaluate the merit of ideas. Consider Sessions’s observation that a “first axiom of the First Amendment” is that, “as a general rule, the state has no power to ban speech on the basis of its content.” That is indeed true. But universities can and must engage in content discrimination all the time. I subject my students to constant content discrimination. If I am teaching a course on constitutional law, my students had better discuss constitutional law and not the World Series.

Professors are also subject to continual content discrimination in their teaching and their research. If I am hired to teach mathematics, I had better spend my class time talking about my equations and not the behavior of President Donald Trump. If I am being considered for tenure or for a grant, my research will be evaluated for its quality and its potential impact on my discipline. Universities, public or private, could not function if they could not make judgments based on content.

Another “bedrock principle” of the First Amendment is that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Yet no competent teacher would permit a class to descend into name-calling and insults. Even if the object of classroom education is to expose students to ideas that they might find disturbing or threatening, it is nevertheless inconsistent with learning for students to experience this encounter in settings where they are personally abused or degraded.

Just as offensive personal insults are forbidden on the floor of Congress — remember Sen. Elizabeth Warren, who was censured by the Senate during Sessions’s confirmation hearings for daring to read a letter by Coretta Scott King that “impugned the motives and conduct” of Sessions — so responsible teachers control classroom discussion in order to maintain civility.

If students cannot engage in personal abuse, neither can professors. Any professor that called his students offensive or derogatory names would be appropriately disciplined. The professional ethics of professors require us to “demonstrate respect for students as individuals and adhere to their proper roles as intellectual guides and counselors.”

This is not to say that members of the university community do not enjoy special freedoms. They have the right to academic freedom, not First Amendment freedom of speech. Academic freedom is defined in terms of the twin missions of the university; it encompasses freedom of research and freedom of teaching. Academic freedom does not entail the equality of ideas. To the contrary, it is defined as the freedom to engage in professionally competent teaching and research.

By contrast, because First Amendment rights protect the right of each and every person to participate in the magnificent process of self-governance, it forbids the state from evaluating the competence of opinions. Citizens are not students under the tutelage of the state; the state is rather the servant of the people. Students are, however, under the tutelage of the university, which is an arena of education, not of political self-governance.

The situation becomes somewhat more complex when speakers from outside the university, with only tenuous connections to the community, are invited to talk. Sometime such invitations raise questions of academic freedom.

Consider a faculty member who invites an outside speaker to lecture because she believes that the speaker will contribute to her research or to her pedagogical responsibilities. If the university administration believes that the outside speaker is inconsistent with the research or educational functions of the university, there is a conflict between faculty and administration about how to attain university goals.

Principles of academic freedom require the university administration to give great (if not decisive) deference to the judgment of faculty in such contexts. First Amendment free speech principles have little to do with the matter.

The situation grows yet more complex in the context of student-invited outside speakers. Students are not accountable for the research mission of the university or for its educational responsibilities. It is a genuine challenge, therefore, how to analyze student-invited speakers in terms of the goals of the university. Still, it remains clear that universities are not Hyde Parks [reference to a park in England which hosts speeches and debates of all types]. Unless they are wasting their resources on frolics and detours, they can support student-invited speakers only because it serves university purposes to do so. And these purposes must involve the purpose of education.

Universities typically don’t think hard enough about how authorizing students to invite speakers advances their education. One theory might be that universities support student-invited speakers because they wish to empower students to pursue research interests different from those offered by faculty. Another theory might be that universities support student-invited speakers because they wish to create a diverse and heterogeneous campus climate in which students can learn the democratic skills necessary to negotiate a public sphere filled with alien and cacophonous voices. Universities may wish to educate students in practices of citizenship by encouraging a wide variety of student groups to invite outside speakers to recreate within the campus a marketplace of ideas.

As universities clarify why they support student-invited outside speakers, they will at the same time clarify the circumstances in which the communication of such speakers can be regulated. I very much doubt that the First Amendment rights of invited speakers will be of much weight in this process. Instead judgment will turn on how supporting or not supporting a given speaker, or a given policy of supporting student groups to invite speakers, fulfills the articulated mission of the university.

(I am not now analyzing situations where students invite speakers using entirely no university resources — no student fees, no security costs, no campus auditoriums — because in such cases universities will have nothing to do with speakers or their speech. I am instead focusing on the more common circumstance where universities allocate their resources to supporting student-invited speakers.)

To the extent that the educational mission of higher education includes the inculcation of critical thinking, it requires universities to instill in students the capacity to face and evaluate ideas, however threatening or dangerous they may seem. Universities must thus distinguish between offensive ideas and personal incivility. Although the First Amendment makes no such distinction, it is important for any university that seeks to encourage both rational dialogue and the mastery of ideas, however strange and off-putting.

These are essential skills for democratic citizens, yet to teach them, universities must be free to regulate speech in ways that are inconsistent with First Amendment rights, at least as ordinarily interpreted. If a campus speaker hurls personal insults at students — if he outs them or individually intimidates them — he has no business on campus.

In Dean Erwin Chemerinsky’s fine post, he takes issue with the analysis I have offered and makes two major points. The first is that it is fallacious for me to presume that because the university can regulate the content of faculty and student work, it can do so “outside of this realm.” The regulation of speech within “professional settings” does “not justify” restricting campus speech “in a nonprofessional setting.”

I believe that this point by Dean Chemerinsky is fundamentally mistaken. The entire purpose of a university is to educate and to expand knowledge, and so everything a university does must be justified by reference to these twin purposes. These objectives govern all university action, inside and outside the classroom; they are as applicable to nonprofessional speech as they are to student and faculty work.

To give a simple example, students are free to march with candles chanting, “No means yes, yes means anal,” in a park. The First Amendment gives them the right to do so. But no sane university would tolerate a student group marching through its campus shouting this ugly slogan (as some male students once did at Yale). The university would be entitled to institute disciplinary proceedings because the relationship — the entire relationship — between a university and its students is governed by the goal of education. Students are members of a university community dedicated to learning, and the university is entitled to enforce the obligations of community membership.

The limits on the university’s ability to regulate the speech of its students are therefore demarcated by the limits of its educational reach over students. Such limits do in fact exist. During the days of the free speech movement in the 1960s, for example, many demanded that Berkeley punish students who had participated in the (illegal) sit-ins in the South. Berkeley Chancellor Clark Kerr correctly resisted these demands on the grounds that the educational responsibilities of the university did not reach the students’ off-campus political activities.

Chemerinsky’s second point is that we must separate the “actual” law from what I think the law should be. Fair enough. But any lawyer knows that courts say all kinds of absurd things that they cannot possibly mean. Courts cannot mean what Chemerinsky says they mean, if courts actually say that a speaker cannot be excluded from campus because of his or her viewpoint.

In fact, speakers are almost always invited to campus because of their viewpoint, because someone thinks they have something worthwhile to say. Graduation speakers are selected because deans believe their ideas are serious and should be heard. Given that all speakers are selected on the basis of their viewpoints, innumerable speakers are also excluded because of their viewpoints. Another way of saying this is that the cardinal First Amendment rule of viewpoint neutrality has absolutely no relevance to the selection of university speakers. Any court that denies this is living in fantasy, blinded by a mechanical doctrine that has no relevance to the phenomena it is supposed to control.

It is of course more complicated when a university has delegated the power to make such viewpoint-based judgments to student groups, and then wishes to countermand the decisions of those groups. In such instances, we have a question of how authority ought to be distributed within a university. This question is not usefully analyzed as a First Amendment question, because the rights of speakers are not determinative.

Underlying Chemerinsky’s post is the assumption that speech within the university (and outside the classroom) is the same as in the public sphere. But the root and fiber of the university is not equivalent to the public sphere. If a university believes that its educational mission requires it to prohibit all outside speakers, or to impose stringent tests of professional competence on all speakers allowed to address the campus, it would and should be free to do so.

Robert C. Post is the Sterling professor of law at Yale Law School. He served as dean of the school from 2009 through spring 2017.

Questions:

1.  Use the Ginsberg text to evaluate the Post argument. Would a ban on hate speech violate First Amendment principles?  Explain why (or why not)

2. Whose argument do you believe is more persuasive – that by Chemerinsky (the previous web reading) or that by Post?  Explain why.