Campus Speech and the Modern University

Professor Timothy Zick gave the following remarks titled "Campus Speech and the Modern University" on June 18 to the Virginia Council of Presidents. He is the author of three books, including The Dynamic Free Speech Clause: Freedom of Speech and Its Relation to Other Constitutional Rights (Oxford U. Press, 2018).

Thanks to Taylor Reveley, the once and still, for a few more days at least, President of the College of William & Mary, for inviting me to speak to you today. I can think of no more appropriate audience, save perhaps for the students at your respective institutions, for my remarks on campus speech. Taylor tells me that you are a naturally inquisitive group, and likely to have some questions. So I will keep my prepared remarks brief. I will also necessarily keep them rather general, but would be happy to address more specific issues as time permits.

In recent years, the subject of campus speech has been prominently in the news and on the minds of campus administrators, faculty, commentators, and students. Contentious, and sometime even violent, incidents have roiled a few of the nation’s campuses – including my own. There have been campus speech controversies regarding trigger warnings, micro-aggressions, safe spaces, disinvited speakers, and heckled speakers. These controversies have generated a new vocabulary. More importantly, they have raised concerns about free speech on the nation’s campuses.

The stakes are high. As some of you may know, the Department of Justice last week filed a “statement of interest” on behalf of the United States, in a federal lawsuit challenging the University of Michigan’s rules on harassment, bullying, and bias. (Incidentally, this is the fourth time the Trump Administration has weighed in against campus speech rules – a clear and unmistakable signal of the federal government’s interest in such matters). States, too, have begun to legislate on campus speech issues – in particular, regarding disciplinary measures against students who interrupt or interfere with invited speakers. In its brief in the Michigan case, the United States claims that “[i]nstead of protecting free speech, the university imposes a system of arbitrary censorship of, and punishment for, constitutionally protected speech.” Among other things, the student plaintiffs, who seek to communicate a variety of conservative views, claim that their speech has been chilled as a result of Michigan’s Bias Response Policy, which authorizes disciplinary action for certain misconduct – including harassing and bullying communications.

Policies like Michigan’s are related, in part, to students’ attitudes regarding free speech. A 2015 Yale study showed that 72% of students surveyed supported disciplinary action against “any student or faculty member who uses language that is considered racist, sexist, homophobic or otherwise offensive.” In general, polling data suggests that many of today’s students are willing to trade off free speech rights, in the interest of things such as diversity, equality, or dignity.

Many view these policies and data as warning signs that freedom of speech, both as a right and as a treasured American tradition, is currently under siege on our nation’s campuses. Whether or not the situation is as dire as some have suggested, recent events have indeed raised serious questions concerning how students, faculty, administrators, and campus visitors fit into the American free speech tradition.

Alas, there are few clear guidelines concerning free speech on campus. As I have studied and taught campus speech controversies, I have been struck by the lack of clear and authoritative First Amendment standards for student speech, faculty speech, social media communications, and the regulation of speech and assembly in campus spaces. To be clear, general First Amendment standards and principles can help us navigate many campus free speech issues. However, with regard to specific applications of the First Amendment on university campuses, there are some significant gray areas.

In dealing with campus speech concerns, it is important to have some historical perspective. Some commentators and critics have characterized recent campus controversies as unique – an aberration from the tradition of free speech on campus. But as Keith Whittington, a Princeton political scientist, recently observed in a book on campus speech:

There was no golden age. Free speech on American college campuses
            has always been controversial and contested. The proper boundaries of free speech
            have never been clear, and the basic commitment to the principle of free speech has
            rarely been unwavering.

Throughout our history, the campus has been a flashpoint of activism and free speech contention: During the 1950s, when communists and radicals were singled out for exclusion and punishment; during the Civil Rights and Vietnam War eras, when protesters were expelled or displaced; and today, when conservative speakers claim to be targeted and chilled, as in the Michigan lawsuit. Further, polling data suggests that prior generations have indeed supported free speech rights – except when they haven’t; for instance, when speech caused disruption, speakers communicated certain offensive ideas or beliefs, or speech otherwise affected some other preferred interest. In short, what we are experiencing today is largely a rerun, not a new series.

Our approach to campus speech can, and I suggest should, be informed by two venerable and related ideals: (1) the mission of the modern university, and (2) the American free speech tradition.

Although universities are not monolithic, in general terms, the central mission of the modern university is to produce and disseminate knowledge. Our learning communities are incubators of ideas. They shelter dissidents, idealists, and critics. In pursuing their central mission, colleges and universities also prepare students for the duties and obligations of democratic citizenship, as future leaders and voters. Universities are also places where students learn the value of autonomy, including with respect to the communication and consumption of ideas.

These functions coincide with general First Amendment values and principles. Thus, protection for the freedom of speech is typically justified on the grounds that it furthers “marketplace of ideas,” “self-government,” and “autonomy” values. As the Supreme Court has observed, “the university classroom and its environs are peculiarly the marketplace of ideas.” In that marketplace, principles of free speech, free trade in ideas, and academic freedom must all be respected. Protecting speech on matters of public concern, which is the primary concern of the free speech guarantee’s self-government value, is particularly important in terms of educating future leaders and voters. And free speech autonomy concerns apply with (at least) equal force on the campus as they do outside its gates.

Past campus speech controversies have highlighted and magnified the connection between the modern university’s mission and our free speech tradition. For example, in response to a free speech controversy on the Yale campus during the 1960s, involving a Nobel-Prize-winning physicist who was also a vocal exponent of the genetic inferiority of blacks, Yale University issued a report on “Freedom of Expression at Yale.” The report declared that “the history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.” It stated that universities had a special responsibility “to provide a forum for the new, the provocative, the disturbing, and the unorthodox.” The report’s authors also concluded that members of the campus community had an overriding duty to preserve and respect freedom of speech, and had no right to obstruct others from exercising that freedom or from hearing the views of controversial speakers.

More recently, the University of Chicago provoked public controversy when it issued a similar report in the aftermath of student protests on its campus and on campuses across the nation. The Chicago report concluded: “It is not the proper role of the university to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.” It cited the university’s “fundamental commitment to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even most members of the university community to be offensive, unwise, immoral, or wrong-headed.”

The Yale and Chicago reports emphasized that the mission of the modern university, and the tradition of free speech, generally go hand in hand. Of course, the incidents that gave rise to the reports showed that tensions can also arise between them. The students at Yale did not want to hear what the physicist had to say, and shouted him down. Chicago students were offended by certain ideas they considered offensive and disrespectful.

It is important to recognize that although campus speech controversies are not new, campuses themselves have changed markedly. For one thing, they are more diverse than they were when past speech controversies arose. Moreover, in many instances, the impetus for censoring speech now comes from students themselves rather than from administrators, as in past conflicts. Those students have been raised in a culture that prizes diversity, and treats offensive speech as a form of bullying or harassment.

The mission of the modern university, to produce and disseminate knowledge, assumes an inclusive learning community where all who are open to reasoned debate are welcome. Universities have a duty to protect students from injury, including those caused by certain types of speech. The First Amendment allows universities to take certain measures in this regard. Campuses can proscribe certain categories of expression that are not covered by the First Amendment’s free speech guarantee. These include threats, so-called “fighting words” (communications that cause a reasonable person to react violently, or more colloquially “invitations to brawl”), incitements to unlawful action, and communications that create a hostile learning environment.

More broadly, campuses can regulate speech in ways that further their central mission. For example, they can establish content-neutral rules for the time, place, and manner of expression. They can discipline students for disrupting university activities and events. Campuses can also enforce rules prohibiting the destruction of property. And they can prevent discrimination by official campus organizations. University officials can also communicate institutional values and ideals in response to speech that occurs on campus.

In sum, modern universities need not, and indeed should not, abandon their commitments to diversity and inclusive learning communities. However, they cannot pursue those commitments by targeting only certain speakers or groups, disinviting speakers owing to the viewpoints or messages they intend to communicate, or suppress speech on the ground that it is offensive, upsetting, hateful, or unorthodox.

As all of you are well aware, one of the most pressing challenges facing the modern university is the need to develop an approach to free speech on campus that both protects expression and ensures that the campus is a conducive learning environment for all students. I do not have a blueprint guaranteeing your – indeed, our – success in this regard. The First Amendment does not provide one. Meeting this critical challenge will require that universities understand and embrace their central mission, educate students about the importance of free speech, and take actions, consistent with free speech rights and principles, which create a conducive learning environment for everyone.