Campus Free Speech Problems Are More Than Meets the Eye
Note: We are pleased to print this response from Susan Kruth of the Foundation for Individual Rights in Education.
Last week, FIRE President and CEO Greg Lukianoff began to respond to Eric Posner’s piece, “Campus Free Speech Problems Are Less Than Meets the Eye.” In his response to Lukianoff yesterday, Posner suggests that FIRE retain a polling firm to ask about censorship on campus—ignoring the fact that Greg cited two polls in his first post! For more data on how people feel about voicing dissenting opinions on campus, see this dispiriting 2010 poll that Greg has often cited in recent years from the Association of American Colleges & Universities. It found that only 16.7% of faculty strongly agreed that it’s “safe” to hold unpopular viewpoints on campus. Only 35% of students felt that way, and seniors were far less inclined to agree than freshmen. In other words, the longer people were on campus, the less likely they were to be confident that unpopular viewpoints could be safely held. And this data is from 2010—given the recent wave of illiberal demands that people step down or leave campus for what they say or believe, the numbers would likely be worse today.
But it’s important to address Posner’s assertions one at a time. Before moving on to his latest response, I want to correct the record on his initial post. So today, I will address specific arguments that I believe ignore the incredible quantity and variety of calls for censorship of speech on college campuses nationwide.
Back in his January 8 post, Posner first claimed that FIRE exaggerates the scope of campus censorship. Posner argued that with millions of students attending thousands of colleges, “[i]t is hardly surprising that campus administrators who enforce the rules blunder from time to time.” But unfortunately, campus censorship happens all the time, not just “from time to time.” If the examples of censorship Greg cited in his lead essay were intended to provide a comprehensive list, then perhaps Posner’s remark would be apt. Unfortunately, those instances are just the tip of the iceberg. Many, many more are documented in Greg’s books, Unlearning Liberty: Campus Censorship and the End of American Debate and Freedom From Speech, and certainly in our case archives.
Posner offers administrative censors an undeserved forgiveness, characterizing their efforts to silence students as mere “blunders” or simple mistakes on tough questions of law. For example, early in his response to Greg’s piece, Posner asserts that “[i]n most of Lukianoff’s examples, the student (or professor, in one case) engaged in speech that was on the margin of other activities that are appropriately regulated, such as distributing leaflets and threatening students or faculty. The universities overreacted, but errors are unavoidable.” Are they?
Distributing literature—a classic example of civic engagement, at the heart of many FIRE cases—is hardly “on the margin” of protected speech. It’s among the least disruptive methods of trying to spread a message on campus. It’s quiet; it’s safe; it’s easy to ignore if one is disinterested or in a hurry. In the vast majority of circumstances, it poses no threat whatsoever to the functioning of the school. In Lovell v. City of Griffin, 303 U.S. 444 (1938), the Supreme Court struck down a city-wide ban on distribution of literature without the City Manager’s permission. In doing so, it emphasized the important role leaflets have played throughout history:
The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion. What we have had recent occasion to say with respect to the vital importance of protecting this essential liberty from every sort of infringement need not be repeated.
So requiring a permit for such activity or restricting it to a tiny area of campus—as Modesto Junior College and the University of Hawaii at Hilo did, and as many other institutions still do—is not a reasonable or justifiable restriction on expression at public colleges and universities.
Nor is this an “unavoidable” error. Leafleting cases often involve “free speech zone” policies—policies that one presumes were deliberately implemented after consideration by administrators. This isn’t the case of an administrator making a split-second judgment call in exigent circumstances. Rather, these policies reflect an unacceptable failure to recognize well-settled law. The fact that colleges are quick to settle FIRE’s lawsuits challenging the constitutionality free speech zones in court suggests that at least someone working for these institutions knows that the law isn’t ambiguous. Those that don’t know it should. Take the University of Cincinnati, which for years maintained a flatly unconstitutional free speech zone policy that FIRE named a Speech Code of the Month back in 2007. The university refused to change this policy after a letter from FIRE sent in 2008, and a student group subsequently sued the school (with help from FIRE and the 1851 Center for Constitutional Law) in federal court for violating students’ First Amendment rights. In 2012, the students won their case; the policy was found unconstitutional. The whole story is documented in this FIRE video:
The University of Cincinnati’s free speech zone policy, and the resulting loss in court, cannot be called “unavoidable” with a straight face.
To be sure, circumstances exist where an interest in safety clashes with an interest in free speech. For example, Posner cites a case involving “a student who made a bonfire of his books—apparently to express his sentiments about his education, but in a way that understandably caused concern to administrators.” But FIRE overwhelmingly handles cases that are not “borderline” and that do not implicate “campus order, safety, and security,” as Posner alleged. There’s nothing borderline about a public university attempting to censor professors’ criticism of the administration, a student being threatened with removal from campus for petitioning against NSA surveillance, a student newspaper that was investigated for nearly a year for two articles. Any FIRE staffer could go on and on with examples—as could Posner, if he had visited our website.
After suggesting that FIRE’s cases are either honest mistakes by a precious few administrators or really borderline questions of law, Posner then suggests that universities simply don’t punish speech for being offensive. He writes, “[Greg] does not cite an example of a university punishing a student for merely expressing a view that people regard as offensive—Holocaust denial, or white supremacy, or criticism of Muslims, or opposition to affirmative action, or whatever.”
Allow me. As FIRE reported last May, University of California President Janet Napolitano said that she believed the UC system should adopt the U.S. State Department’s definition of anti-Semitism, which includes “[a]ccusing the Jews … of inventing or exaggerating the Holocaust.” A Jewish student at George Washington University was suspended last year for displaying on a bulletin board a small swastika he had bought in India—even though he intended to teach his peers about the swastika’s history as a symbol of good luck. Colorado College recently suspended a student for six months over a six-word joke on social media that the college deemed racially offensive. (This is the same college that, several years earlier, disciplined two students for posting a satirical flyer mocking feminism.) Last year, Texas Christian University suspended a student for remarks he posted to his personal social media accounts, including opinions on the spread of the “Islamic State.” SUNY Fredonia denied promotion to a professor who criticized the university’s affirmative action practices, explicitly citing the professor’s statements to the media, while the University of Kansas put a professor on administrative leave after he posted a tweet to his personal Twitter account condemning the National Rifle Association. And, funnily enough, Greg’s first essay in this series links to a blog post describing Bucknell University’s punishment of students for protesting affirmative action. Over the years, administrators have also censored or attempted to censor affirmative action protests at The College of William and Mary, DePaul University, Grand Valley State University, Northeastern Illinois University, the University of California, Irvine, and the University of Colorado at Boulder.
All of these cases involve actions by (or proposals from) university administrators, many of which were authorized by written speech codes that were, quite obviously, implemented by administrators and not by students. It is true that calls for censorship from students have been worryingly widespread in recent years, but administrators remain—despite Posner’s denial—a “major threat to free discussion on campus.”
Posner also argues that speech codes “are designed not to stifle but to enhance discussion by discouraging students from being rude to each other.” Even assuming arguendo that Posner is correct about the rationale behind speech codes, the reality is that speech codes—even some of the most benign-sounding speech codes—do stifle rather than enhance discussion. In the case of College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1003 (N.D. Cal. 2007), students at San Francisco State University were charged with violating the university’s “civility” mandate by holding an anti-terrorism protest. In enjoining the university’s enforcement of the policy, U.S. Magistrate Judge Wayne Brazil articulated how administrative requirements that students be “civil” hinder open debate:
Civility connotes calmness, control, and deference or responsiveness to the circumstances, ideas, and feelings of others…. Given these common understandings, a regulation that mandates civility easily could be understood as permitting only those forms of interaction that produce as little friction as possible, forms that are thoroughly lubricated by restraint, moderation, respect, social convention, and reason. The First Amendment difficulty with this kind of mandate should be obvious: the requirement “to be civil to one another” and the directive to eschew behaviors that are not consistent with “good citizenship” reasonably can be understood as prohibiting the kind of communication that it is necessary to use to convey the full emotional power with which a speaker embraces her ideas or the intensity and richness of the feelings that attach her to her cause. Similarly, mandating civility could deprive speakers of the tools they most need to connect emotionally with their audience, to move their audience to share their passion.
In sum, there is a substantial risk that the civility requirement will inhibit or deter use of the forms and means of communication that, to many speakers in circumstances of the greatest First Amendment sensitivity, will be the most valued and the most effective.
I have to wonder how many cases of punishment for protected expression would be enough to convince a skeptic like Posner that there is a widespread and serious problem among both college students and administrators. Or what kind of speech is so clearly protected that colleges have no excuse for censoring students, if quietly handing out copies of the Constitution is in a gray area for him.
Luckily for readers, FIRE isn’t one to quickly give up on our aim to persuade—look for more thoughts on Posner’s arguments in the coming days.