Remaining Faithful to Free Speech and Academic Freedom – Justia Verdict

It distresses me to see episodes these days in which speakers who are controversial for their conservative or ultra-conservative views are prevented from delivering invited remarks at universities (including public universities) because protestors choose to violate laws designed to protect public safety. It also distresses me to see so few liberal analysts decry how illiberal these episodes of group-imposed censorship are.

As I have written at length elsewhere, no matter how repressive or otherwise abhorrent a speakers message, the appropriate response under our Constitution is counter speech, not shouting down or physically obstructing or threatening the speaker or the speakers audience. To be sure, protesting a speakers presenceregistering profound objection to a speakers viewpointis perfectly appropriate and has a rich tradition dating from even before the 1960s free speech revolution through the Occupy movement. But what we have seen over the past several months is a transition from protesting against bad speakers to preventing them from being able to speak, and that is not acceptable.

An unflinching commitment to freedom of speecheven odious, racist, sexist, hateful speechis the cornerstone of constitutional democracy in the United States. Certainly we protect freedom of speech more vigorously than any other western democracy. We also have a venerable tradition of respecting academic freedom at colleges and universities.

These two principles, freedom of speech and academic freedom, overlap and are interconnected, even as they are distinct ideas. Freedom of speech is a broadly applicable right codified in the federal First Amendment and state constitutional analogues that protects speakers both on and off public campuses from unwarranted government interference with expression. Academic freedom, which may extend beyond what the Constitution protects, is grounded on the idea that, at least in the academy, free inquiry unburdened by the constraints of orthodoxy will lead to the development of new ideas and knowledge.

Notwithstanding their different scopes, both freedom of speech and academic freedom rest on the bedrock belief that ideas and arguments ought to be evaluated on their substance. The essence of both kinds of freedom is the opportunity to persuade others of the merits of ones argument, rather than the use of power to coerce others into acceding to the proponents point of view.

Sometimes the heat and passion of political protests on college campuses causes these basic principles to be overlooked or ignored. When that happens, it is important for us to go back to what freedom of speech and academic freedom really mean and how easily both of these principles can be misused and misinterpreted.

The short of the matter is that blockading, obstructing, assaulting, destroying property, and making threats, are not, in any stretch of the imagination, constitutionally protected things to do, no matter what the objective behind them. These activities are conduct the government has always had the legitimate authority to proscribe because they so obviously interfere with the liberty and lawful pursuits of others.

As the Supreme Court of California stated in an important free speech case, In Re Kay:

[T]he state retains a legitimate concern in ensuring that some individuals unruly assertion of their rights of free expression does not imperil other citizens rights of free association and discussion. Freedom of everyone to talk at once can destroy the right of anyone effectively to talk at all. Free expression can expire as tragically in the tumult of license as in the silence of censorship.

Government actions to prohibit blockades or obstruction have been held to be permissible under the First Amendment too many times to count. To cite just one example, a federal law, the Freedom of Access to Clinic Entrances Act (FACE), that prohibits anyone from physically obstructing any person from obtaining or providing reproductive health services, has been upheld repeatedly against constitutional challenge, and those cases raise harder questions than do generic obstruction laws because FACE targets specific places where protestors with particular messages may be expected.

Blockades and obstructions can and should be prohibited consistent with the First Amendment primarily because they are not intended to and do not persuade anyone of the merits of the protestors position. They are employed to coerce third parties to change their behavior, not their minds. As such, they are actually antithetical to, rather than in furtherance of, the values on which freedom of speech and academic freedom are grounded a commitment to the power of ideas rather than the use of force to change the way that people act.

In recent weeks, I have heard defenders of those who obstruct conservative speakers make two novel but completely unconvincing arguments. First, the obstruction defenders try to invoke the civil rights movement by pointing out that Martin Luther King, Jr. and his supporters were often guilty of civil disobediencethat is violating duly enacted laws. But this analogy is unavailing because King and his followers were violating laws that were (in the eyes of the protestors and many others) themselves unjust, not laws that were completely unobjectionable but simply stood in the way of the desires of the violators. Another distinction between the two settings is that to the extent that civil rights protestors violated laws regulating their political activity, they were violating laws in order to be heard themselves, not in order to prevent others from being heard. But todays obstructors cannot credibly complain that they cannot be heard; they simply want others not to be listened to.

The second creative yet deeply flawed argument Ive heard in defense of the obstructors is the idea that controversial speakers of the kind who are being suppressed are themselves not appropriate speakers to be invited to university settings because they are not sufficiently academic in character. Putting aside the fact that these speakers were invited (whether they ought to have been or not), and putting aside whether some of these speakers do have some academic bona fides (even if their ideas are often very wrong-headed), this argument mischaracterizes the kind of speakers who belong at universities. Higher education is a place not just to sharpen ones critical thinking skills through exposure to brilliant academics who make data-informed arguments in multiple directions; it is also a place where one should learn how to become a full citizen in American society. As the Supreme Court observed in the context of high school students in Tinker v. Des Moines Independent School District, this often means that students need to engage each other on the contentious political issues of the day. And in todays college world this sometimes means hearing and evaluating strident political advocates, some of whom even border on demagoguery.

To be sure, student and faculty organizations should give some thought (perhaps more thought than they currently do) to the question of whom they invite to speak on campuscertainly not everyone should be offered a platformbut many campus speakers, on the Left as well as the Right, are not particularly grounded in rigorous theoretical or empirical analysis, and this does not mean that they are per se inappropriate speakers for college audiences. Again, colleges should be preparing young people not just to navigate the economy, but also to navigate democracy. And, for better or worse, modern democracy means having to deal with a lot of ideas that are widely held even though they dont hold up to analytic rigor. Debunking those ideasnot shouting them down or trying to suppress their expressionis what I want my students to learn how to do.

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Remaining Faithful to Free Speech and Academic Freedom - Justia Verdict