Robert C. Post | Vox

There is no 1st Amendment right to speak on a college campus

2017-12-31T11:33:53-05:00

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 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.

Read Erwin Chemerinsky’s argument that campus speakers enjoy robust free speech rights here.

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.

There are many arenas in which all ideas are not considered equal

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.

Classrooms are not Hyde Parks

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 key question: what role do visiting speakers play in the mission of a university?

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. 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.)

Universities might decide it’s okay to invite controversial speakers but still impose rules

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.

Universities can and must engage in content discrimination all the time. If I am teaching a course on constitutional law, my students had better discuss constitutional law and not the World Series.

In Dean Erwin Chemerinsky’s fine post (also published on Vox), 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.

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National revulsion over the Charlottesville march shows why we shouldn’t ban hate speech

2017-08-22T16:35:09-04:00

A woman in Minneapolis expresses her solidarity with the anti-white-nationalist protesters in Charlottesville, on August 14. | Stephen Maturen / Getty Images

Charlottesville seems destined to become a symbol of the vexing challenges associated with freedom of speech in America. On Friday evening, a crowd seething with hatred and bigotry conducts a torchlight parade in a manner deliberately evocative of Nazi theater.

The next day they demonstrate, carrying semi-automatic weapons, clubs, shields, helmets, and pepper spray. There are numerous violent clashes between demonstrators and counter-demonstrators, culminating in a lethal ISIS-type assault by a neo-Nazi, who rams his car into a crowd, killing a young woman.

How should we untangle the First Amendment rights at stake in this nightmare scenario? Within the coiled events of Charlottesville lie two distinct issues: First, there is a constitutional rule prohibiting the state from engaging in viewpoint discrimination when determining who may speak in public spaces. Second, there is a constitutional rule authorizing the state to regulate speech that conveys a “true threat,” which is “a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

The state cannot discriminate against unpopular views — even Nazi ideology

Last weekend’s Unite the Right rally attracted a motley group determined to proclaim racist and anti-Semitic views that were outrageous and indecent. Yet traditional First Amendment doctrine prevents the state from discriminating on the basis of viewpoint, even on the basis of opinions as despicable as those. It prohibited the city from disadvantaging the planned parade on the basis of its hurtful and offensive message. (Indeed, a federal judge so ruled on the morning of the torchlight march.)

Why does the First Amendment prevent official discrimination against such loathsome views? The question has become pressing for a new generation. A recent Pew Research Center poll found that 40 percent of millennials believe that government should be able to prevent people from communicating messages that are offensive to minority groups. In contrast, only 12 percent of those born from the mid-1920s to the mid-1940s would allow government to regulate speech in this way, only 24 percent of Baby Boomers would do so, and only 27 percent of those in Generation X. Can traditional First Amendment doctrine justify itself in contemporary circumstances, such as those we saw play out in Charlottesville?

At root, we protect freedom of expression — even hateful expression — in order to strengthen democratic legitimacy. We want everyone to be free to participate in the formation of public opinion, and we want the state to be responsive to public opinion. If these conditions are met, we may experience the state as responsive to us, to the individuals who make up this great democracy. This in turn gives us reason for civic loyalty and engagement, and perhaps even to acknowledge the state as representing us.

As the Supreme Court put it in 1931 in the seminal case of Stromberg v. California (which held that California could not ban the red flag of the Communist Party): “The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means … is a fundamental principle of our constitutional system.”

Those who seek to ban totalitarian symbols may think they are preserving public law and order. But in Stromberg, the Court turned that argument on its head, observing that freedom of expression “was essential to the security of the Republic.” Stromberg understood that in a democracy persons can and do hold passionately divergent views; and the more diverse the society, the greater the disagreement.

When the state suppresses unpopular views, it gives those holding those views little reason to play by official rules. Why should they abide by laws whose enactment they could not influence through their speech and expression? Why should they trust officials whose election and decisions they were preventing from opposing? No republic is secure if its citizens lack respect for its government.

Paradoxically, therefore, the “verbal tumult, discord, and even offensive utterance” created by the expression of diverse views is, as the Court put it in another famous opinion, “not a sign of weakness but of strength.” The discord is a sign that all are participating in public discourse, that all care enough to seek to influence public opinion. But those whose views are excluded from public discourse are effectively excommunicated from our democratic polity, and in such circumstances the repressed tends to return with redoubled fury and ressentiment.

In Skokie, Illinois, the Nazis just wanted to march. In Charlottesville, they toted weapons.

Many of the Charlottesville marchers weren’t just shouting hateful slogans; they were carrying weapons. We must thus consider not merely the constitutional rule against viewpoint discrimination, but also the lack of constitutional protection for true threats.

Disagreement in the public agora is tolerable because it symbolically displaces actual physical conflict. To the extent that such communication verges on violence or the threat of violence, it loses the immunity of the First Amendment. No doubt the neo-Nazi who slammed his car into the Heather Heyer meant to express a distinct message of hate, but he will have no First Amendment defense when he is prosecuted for murder. Similarly, those who utter what traditional doctrine calls true threats cannot claim refuge in the First Amendment.

Jason Kessler, who applied for permit for the Unite the Right march, affirmed that he “absolutely intend[ed] to have a peaceful rally” and that his group would “avoid violence.” But these promises are inconsistent with the accessories worn by Kessler’s followers. There is only one social meaning conveyed by demonstrators who come armed with semiautomatic weapons, helmets, and clubs. If I were in the vicinity of thugs so armed, I would be afraid, and I think legitimately so.

In contrast to the notorious proposed 1977 Nazi march through Skokie, a city populated by Holocaust survivors, the Charlottesville marchers came dressed and armed for a fight. The damage those opposed to the the Skokie march feared was psychological. The constitutional conceptualization of such harm is complex. This is because, as John Stuart Mill pointed out a long time ago, ideas can often be hurtful and cause intense distress. I am genuinely upset when I encounter the views of long-dead anti-Semites. Analogous psychological shock is often inseparable from engagement with alien ideas that seem outrageous. For this reason, First Amendment doctrine has long rejected this kind of psychological harm as a justification for legal regulation.

In Charlottesville, marchers entered town intending physically to intimidate onlookers. As one commentator remarked, “These white supremacists showed up with their own militia. Can you even imagine what would have happened if black folks showed up to protests in Baton Rouge with a militia?” Why should we extend the mantle of First Amendment immunity to demonstrators who from the outset signify their intention physically to intimidate onlookers?

Of course, without an audience, the marchers would not have had anyone to intimidate. The president of the University of Virginia warned before the demonstration, “the organizers of the rally want confrontation; do not gratify their desire.” When I was a professor at the University of California Berkeley, I was once asked how the school ought to respond to a student-invited speaker, the Holocaust denier David Irving. My recommendation was to shun him. Irving ought to be given the opportunity to speak, I said, but the auditorium should be empty. Those who seek only to spread hateful lies and are not open to good faith public debate should not be accorded the respectful attention that we owe real partners in constructive dialogue.

But public parks are different from classrooms. The melee that engulfed Charlottesville could not have happened without the manifest provocations of the alt-right and of the counter-protesters, who were determined to contest the meaning of every inch of public space. That was their right, and I applaud their courage. Public space is a scarce resource, and there are often fierce struggles about the meanings that public parks and streets will be used to convey.

In an abstract and civil world, protesters and counter-protesters would each refrain from undermining each other’s communication. But such restraint is often not possible in the real and passionate world of actual politics. Charlottesville is exemplary. It witnessed continual skirmishes between the two groups, some of which were violent, to varying degrees.

In such circumstances, the primary responsibility of the police is to maintain public order, which is to say to keep the peace while each side communicates what they have mobilized to express. From eyewitness accounts, the police failed in this task throughout a day filled with incidents of violence and injury. We do not yet understand why the police were so passive for so long, but their absence vividly illustrates that without the maintenance of legal order, rights of freedom of speech mean little. The First Amendment protects expression, not riots. It protects the right to participate in the formation of public opinions, not the right to commit mayhem.

Charlottesville devolved into a riot, yet Americans — if not Trump — are drawing lessons from the speech they did hear

It is fair to say that in Charlottesville the two sides were locked in battle and not in conversation. There was no constructive dialogue between the demonstrators and counter-demonstrators. But this narrow frame is inadequate for assessing the constitutional significance of last weekend’s events. Considered from a broader perspective, each side made itself visible to, and heard by, a larger audience. Thanks to media coverage, the general public was empowered to absorb the deeper meaning of Charlottesville.

When the alt-right shouted “blood and soil” and “Heil Trump,” the public could discern the filth beneath their message. Charlottesville thus consolidated the judgment of public opinion, a judgment that remarkably encompassed a broad spectrum of heretofore polarized political perspectives. Even Sen. Orrin Hatch could tweet, “We should call evil by its name. My brother didn’t give his life fighting Hitler for Nazi ideas to go unchallenged here at home.”

Charlottesville should thus be remembered not only as a tragedy, but also as the midwife of a popular verdict so powerful that it finally compelled Donald Trump to condemn, however grudgingly and momentarily, the Ku Klux Klan and neo-Nazis. In the civil rights era, the public opinion of the country turned against Southern segregationists when the violence of Bull Connor’s police became visible. The public opinion of the country analogously turned against the alt-right when it witnessed the turmoil of Charlottesville. The country was sickened not merely by the alt-right’s strutting and bullying, but also by its message of white supremacy.

As I write this, however, Trump has unexpectedly and unpredictably bridled against this compulsion, once again returning to the theme that the violence in Charlottesville was the fault of both sides. But so far, Trump’s bizarre volte-face seems to have sparked an even more intense backlash against the alt-right’s message of hatred. Charlottesville has pushed Trump’s racism out of the shadows, and the media have focused public attention on the grotesque moral deformities that have become suddenly and embarrassingly visible.

Charlottesville has thus fulfilled the fundamental purpose of the First Amendment: to pose for all of us the question of what we should do in light of what we now know.

Correction: This piece originally stated that American Nazis marched in Skokie, Illinois. They famously won the right to do so, but the organizers called off the march.

Robert C. Post is Sterling Professor of Law at Yale Law School. He served as dean of Yale law from 2009 to this year.