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Campus Free-Speech Principles in Conflict

By Jack M. Balkin

Speak Freely: Why Universities Must Defend Free Speech by Keith E. Whittington. Princeton, NJ: Princeton University Press, 2018. 

cover for Keith Whittington's Speak Freely with campus building and hand-held sing superimposed in large yellow quotation marksKeith Whittington’s Speak Freely is an outstanding summary of the case for freedom of speech at colleges and universities. The book exempli­fies the kind of civility, reasoned inquiry, and dedicated search for truth that it repeatedly calls for. It is balanced, thoughtful, and judicious, always presenting multiple consider­ations for each issue it discusses and emphasizing the need to take factual differences into account. One need not accept all of Whittington’s spe­cific conclusions to appreciate the care with which he discusses some of the most controversial issues in contemporary academic life.

Whittington argues that the core mission of universities is to produce and disseminate knowl­edge and that free speech is crucial to achieving this central purpose. He offers two justifications for freedom of speech: one he associ­ates with Thomas Jefferson in the constitutional struggle over the 1798 Sedition Act, the other with John Stuart Mill.

The Jeffersonian idea is that no one can be trusted with the power to censor because people are falli­ble and the powerful will inevitably try to suppress the powerless. Nor can one rely on neutral arbiters to decide what speech is permissible. Protecting only true speech will be insufficient because questions of truth and falsity will be bitterly contested. Hence all sides must be allowed to speak.

Whittington takes from Mill the ideas that the purpose of free expression is the pursuit of truth and that the best way to achieve truth is to allow a contest of differ­ent arguments conducted in a spirit of fair inquiry. Because people are fallible, they must listen to those who disagree with them. This expo­sure may help refine their beliefs. Moreover, they cannot know whether even their most strongly held opinions are correct unless they subject them to the discipline of defending them against critics.

Although Whittington some­times draws analogies to First Amendment doctrine, he does not primarily rely on it. The First Amendment does not apply to private organizations, and not all universities are public. Moreover, even in state universities, full First Amendment protections do not apply, for example, to speech in the classroom, to the design of the cur­riculum, and to tenure decisions.

Moreover, the First Amendment has far broader justifications than pursuing truth and avoiding the fallibility of censorship. It supports democratic legitimacy and protects self-expression. However, Whit­tington argues that the point of free speech in colleges and universi­ties is not to legitimate democracy, nor is it to allow individuals to express themselves or their feelings or beliefs. Rather, “members of the campus community need to be able to engage in a reasoned exchange of views in order to improve all of their understanding of the world we live in.” Accordingly, freedom of speech must be “regulated and channeled as necessary to advance that important purpose.” And unlike standard First Amend­ment doctrine, “the truth-seeking justification for freedom of speech emphasizes the value of open inquiry and debate to the listener, not the speaker.” Whittington’s argument thus resembles Alexander Meiklejohn’s view that free speech protects the right of a democratic public to be informed, although, as noted above, he eliminates the con­nection to democracy.

Whittington then applies his argument about the central mission of the university to a series of issues. He opposes the idea of trigger warn­ings in classrooms except where they are justified on medical grounds. He does not object to safe spaces for students on college and university campuses but argues that the idea of safe spaces should not protect only a relatively small number of identified groups. Instead, it should be made universal by promoting “civility, respect, and acceptance for all members of the community.” He opposes hate-speech codes generally but argues that colleges and univer­sities should protect students against harassment and threats.

With respect to student protest, Whittington distinguishes between staged events of relatively limited duration designed to express a view­point and genuine or sustained disruptions of classes, speeches, and activities. Educators should tolerate the former but not the lat­ter. Disruptive protests, he argues, are not premised on a search for truth; rather, they assume that we already know the truth. Accord­ingly, he strongly opposes allowing a heckler’s veto of campus speakers or events because it is inconsistent with the university’s central pur­pose of promoting free inquiry.

Many campus controversies arise when student groups invite outside speakers. If administrators generally allow students to select speakers, Whittington argues, they should not selectively exercise a veto when students make contro­versial (or even unwise) decisions. Colleges and universities should not close themselves off from controversial speakers, because to do so would abandon the schol­arly enterprise. At the same time, Whittington argues, students and administrators alike should always reflect on whether their choice of speakers actually promotes the educational mission of the institu­tion, the production of knowledge, and the spirit of free inquiry. Many invited speakers add little substantive content to the exchange of ideas on campuses; some are simply provocateurs. Administrators should recognize that commencement addresses are often showpieces that add little in the way of serious educational content. They should be far less willing to grant degrees to coax acceptances, because this puts an imprimatur on speakers and their viewpoints.

Whittington next turns to academic freedom. Much of his argument is fairly standard. Aca­demics should have the right to choose what to teach and research, to publish their research, and to convey it to the public. Institu­tions should not punish faculty members for their public state­ments, even those unrelated to research, because this would allow administrators an indirect method of undermining core principles of academic freedom. Structural limits on administrators are crucial because donors, politicians, the media, and the public continually pressure administrators to limit the freedom of research and teaching.

The book’s final chapter argues against academic ostra­cism. Channeling Mill once again, Whittington contends that in colleges and universities, as elsewhere, people too often close ranks against beliefs and think­ers they oppose, whether or not they have read the thinkers’ work or fully engaged with their ideas. This elevates social conformity over the free exchange of ideas. He ends with a plea for colleges and universities to take conservative ideas more seriously and hire more conservative scholars. Whittington opposes quotas or requirements of any kind. Rather, he appeals to the Millian point that scholars and students alike will benefit from arguing with people with different perspectives. The clash of ideas, posed by people acting respectfully in good faith, will produce greater knowledge and bring the academic enterprise closer to truth over time.

Whittington’s approach often sounds idealistic. Yet, he reminds us, unless colleges and universities hew to the ideals of the pursuit of truth, engagement in free inquiry, and the production of knowledge, they will be tempted to sacrifice these ideals to donors, politicians, the media, and public opinion. Colleges and universities must stick to their mission, which benefits the larger world around them, because if they do not stick to it, no one else will do it, or do it as well.

One of the ironies of the book is that although Whittington’s specific proposals are, on the whole, quite reasonable, they do not actually follow directly from the theories of freedom of speech he offers at the beginning of his book. That is because Whitting­ton’s free-speech principles are actually in tension with each other, and people may disagree about how best to resolve that tension in specific cases. The conflict may be greatest precisely in the most controversial situations.

Whittington, for example, rec­ognizes that the university’s central purpose of discovering truth and conveying knowledge to others must qualify Mill’s arguments. Mill, a “gentleman scholar” of great genius, wrote before the rise of modern research universities. These institutions revolutionized the production of knowledge by professionalizing it and subject­ing it to disciplinary scrutiny. Hence, Whittington writes, “the demands of expertise require that we discipline free speech,” so there is a tension between Mill’s “freewheeling spirit of debate” and the “careful accumulation of knowledge that universities try to foster” through research norms and educational practices.

Whittington’s Jeffersonian principle argues that no one can be trusted to arbitrate what is true or false. But the very idea of a research university that pro­vides professional education to its students presupposes that expertise can and should be used to arbitrate these very questions.

Whittington’s Meiklejohnian claim that the purpose of campus speech is to enlighten and educate listeners rather than vindicate the freedom of speakers also conflicts with his Jeffersonian principle. The most prominent example of a purely listener-based doctrine in First Amendment law is the protec­tion of commercial speech, designed to ensure that consumers have access to useful information. But for the same reason, com­mercial speech is subject to a wide range of regulations designed to weed out false and misleading claims and promote true ones.

Does this mean that Whitting­ton is wrong? Far from it. Rather, it shows that Whittington’s justifi­cation for free speech on campus actually follows from a crucial distinction: between the norms of professional free inquiry relevant to the university as a knowledge-producing, educational institution and the norms of freedom of speech that apply in the public sphere generally. Colleges and uni­versities should defend freedom of speech because—and to the extent that—protecting speech flows from their best professional judgments about how to produce and convey knowledge and educate their students. This is his book’s central claim, and it is most assuredly correct. The correct applications of this principle, however, are far from obvious.

Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment and director of the Information Society Project at Yale Law School. His email address is jack.balkin@yale.edu.

Comments

I wonder if Jefferson tolerated free speech among his enslaved population. I wonder if he would allow them to read his racist rantings about African-Americans and his Notes on Virginia: NO! He opposed education for the enslaved. Let's begin to reexamine the sanctity of Jeffersonian thought. It's time to demote this person as the pinnacle of American democracy and freedom.

It is sad that the only comment on Balkin's excellent review of a potentially important book on academic freedom, its origins and current problems, ignores the topic of the book in favor of attacking Jefferson's racism. Like many liberals of an advanced age (87) I have begun to examine the sources of my biases acquired over a lifetime. Recently a question that has concerned me is how I might have behaved had I been born to Jefferson's cradle? I would like to think I would have refused to enjoy the privileges of southern aristocracy, rejected any ill-gotten wealth and moved from the states where slavery was practiced. Or perhaps stayed there and become a pamphleteer writing for abolition and perhaps making a living as a teacher (as long as I kept my views from the classroom). Yes, that's what I would like to believe I would do...but it is hard to be certain that I would be the one of a very, very few people who withstood the power of an upbringing in that society. How could they not have seen the evil? I don't know, but apparently they didn't, when it even came down from the majority of pulpits in their churches. I reject the notion that by admiring his contributions to the Constitution I am approving his justification of his existence as a slave owner. Same goes for my appreciation of the contributions of Washington and Lincoln, despite their pronouncements on non-whites that would, taken in isolation, have us tear down their statues and rename a lot of streets.

To return to the real (but related) topic, Balkin's review of Whittington's book on academic freedom
it was a pleasure to read such a comprehensive and even-handed treatment. The tension with academic freedom that is created by professional education is a facet of that issue that deserves more attention. But the most important point, at least in my opinion, is the clarification that academic freedom does not flow from the First Amendment. Too many of our faculty members assume that it does, or at least seem to when invited to join AAUP. It does not. The price of academic freedom, like freedom itself, is everlasting vigilance. It was hard won but is being eroded badly, as described in Whittington's book.

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