"Laws alone cannot secure freedom of expression; in order that every man present his views without penalty there must be a spirit of tolerance in the entire population. Such an ideal of external liberty can never be fully attained but must be sought unremittingly if scientific thought, and philosophical and creative thinking in general are to be advanced as far as possible."
—Albert Einstein (1950, p. 13)

Imagine this scenario. Dr. Upton O. Goode, chair of the Department of Organic Astral Therapy at Dicey Incline State University (DISU), has invited Ms. Stuckin D’Past, the founder of a group that’s widely perceived as advocating white nationalism, to deliver a campus address on current challenges facing society. Dr. Goode has required all students majoring in organic astral therapy to attend, opened his own courses to Ms. D’Past for further discussion, and invited all other students to attend the public lecture.

The title that Ms. D’Past has chosen for her speech, “The Crime of Diversity,” has attracted concern from students, faculty, and administrators alike. A large majority of those on campus believe that the speech will support the agenda for white nationalism and encourage violence. The League of Students for Diversity (LSD) has planned a massive protest at the event and reached out to DISU students, employees, and members of the community to join them. LSD has stated in emails that it intends to disrupt the event—by any and all means possible—to stop Ms. D’Past from speaking.

Mr. Barry D. Hatchett, the president of DISU, is afraid that if the speech is allowed to proceed, violence will erupt that his campus’s security service will be unable to contain. The rhetoric around Ms. D’Past’s appearance has so become strident that the local mayor and town council believe public safety may be at risk. Several outside groups, both supportive of and opposed to Ms. D’Past’s group, have threatened to appear at the public event and advocate for their causes. President Hatchett is on the verge of canceling the presentation entirely when he receives an email from Dr. Goode indicating that any attempt by the administration to block Ms. D’Past from speaking would be regarded as violating the First Amendment and its guarantees of free speech as well as Dr. Goode’s own academic freedom.

An official statement by Ms. D’Past said that she hoped all “right thinking” members of the community would come to the event and demonstrate their support of her right to speak and opposition to the “fascist tactics” of groups like LSD. Hearing the responses to this statement from listeners to call-in radio, Mr. Hatchett becomes even more concerned about what might happen at the public event.

President Hatchett knows that he must act quickly since the day of Ms. D’Past’s arrival is rapidly approaching. He calls his cabinet into a joint session with his governing board and tries to work out a plan for how to proceed. The group makes the following accommodations. DISU will

• budget an additional $250,000 (taken from funds originally set aside for staff bonuses) for police to attend and monitor the public event and do what they can to prevent violence;
• offer Ms. D’Past a “safe space” to deliver her presentation;
• publicize the fact that the First Amendment does not provide anyone with the right to disrupt campus activities;
• establish bias response teams (BRTs) to monitor this event and similar activities in the future that have the potential for resulting in violence; and
• take a public stance that freedom of speech allows people to state their opinions without interference, retaliation, or punishment from the government.

Questions

1. What is your opinion of this proposed solution?
2. What would you do if you were the following people?
   1. President Hatchett
   2. Dr. Goode
   3. The president of DISU’s faculty senate
   4. The president of the LSD
   5. The chair of the governing board
   6. The director of campus safety at DISU
   7. The mayor of the city where DISU is located
   8. The chief of police of the city where DISU is located

Background

We’ll suggest a few possible answers to these questions, but first let’s look at some background for our hypothetical case study. What is now known as the Free Speech Movement (FSM) began in 1964 as a series of protests at the University of California, Berkeley. These protests reached their climax on December 2, 1964, when, after a rally featuring the folk singer and activist Joan Baez, students occupied the administration building. This sit-in led to the arrest of 773 people. Many faculty members at the university supported the students and provided them with bail money. Clark Kerr, president of the University of California during these protests, refused to expel the student activists, arguing, “The University is not engaged in making ideas safe for students. It is engaged in making students safe for ideas. Thus it permits the freest expression of views before students, trusting to their good sense in passing judgment on these views. Only in this way can it best serve American democracy” (Berdahl, 2004). Kerr was fired three weeks after Ronald Reagan took office as the governor of California.

The issue of free speech on college and university campuses is as old as education itself and as current as today’s news. Institutions of higher education often find themselves torn between their desire to create environments where students and professors remain physically safe and their mission to protect academic freedom and the right of free speech. What can academic leaders do to increase the likelihood that constructive conflicts between ideas don’t escalate into destructive, violent acts?

Hate speech

One place to begin is with an understanding of what hate speech is and what it isn’t. Some people use the expression hate speech to label any ideas they find difficult, troubling, controversial, or offensive. But there is no such thing as a right, either constitutional or academic, not to be offended. Legally, hate speech refers to expressions that insult or demean a person or a group of people on the basis of such attributes as race, religion, ethnic origin, sexual orientation, disability, and gender. But hate speech is not required to be speech per se. Nonverbal symbols may also be used to express hatred. For example, although the United States Supreme Court has ruled that burning the American flag (Texas v. Johnson, 491 U.S. 397 1989) and wearing armbands as an act of protest (Tinker v. Des Moines Independent Community School District, 393 U.S. 503 1969) are examples of protected speech, destruction of private property or the use of these same nonverbal symbols to threaten someone is not. As a result, painting a swastika on the interior wall of your home library is permitted, but painting a swastika on the wall of your public library is not. Free speech also does not protect those who engage in defamation of character, child pornography, harassment, invasion of privacy, and other types of expression already restricted by law. In addition, colleges and universities retain the right to establish the time, place, and manner in which protests or other potentially disruptive expressions of free speech may occur.

In US law, hate speech is not regarded as a separate category of speech. Whether one likes it or not, most hate speech is protected under the First Amendment as a variety of “unpopular speech.” A number of countries (including Germany) do have laws prohibiting incitement to racial or ethnic hatred, but the United States isn’t one of them. The rationale for protecting unpopular speech is that there is simply no practical way to regulate hate speech without censoring ideas, and censoring ideas should be particularly offensive to everyone, especially those who work in higher education. Gresham’s Law in economics states that “bad money drives out good.” But a type of Reverse Gresham’s Law applies to higher education: good ideas drive out bad ideas. As the Supreme Court Justice Louis D. Brandeis established in the case of Whitney v. California, “If there be time to expose through discussion, the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence” (Whitney v. California, 274 U.S. 357 1927). In other words, the solution to “bad speech” is not less speech but more.

It is important to remember, too, that in the United States, speech protections under the First Amendment apply only to governmental speech. So the law works differently for public than it does for private universities. A religious college or seminar is legally entitled to restrict what is said or taught on its campus. But if a private school advertises itself as an environment that is open to all ideas or where opinions may be freely exchanged, it has then provided a contractual obligation to permit free speech. So if someone violates the right of free speech at a public university, it could become a federal matter. If, on the other hand, someone violates the right of free speech at a private university, it could become a civil matter. The university is sued, not prosecuted. (See, for example, “First Amendment on Private Campuses,” 2015, and Dynia & Hudson, 2017.)

Conclusions

Readers will undoubtedly have their own ideas about how they would handle the hypothetical situation at DISU. We all approach challenges differently, based on our own experience and the traditions at our universities. But here is one possible way of proceeding. First, it’s important to identify where the central issue in this case study lies. People merely believe that Ms. D’Past’s speech will support the agenda for white nationalism and encourage violence, but the LSD has explicitly threatened in emails that it intends to disrupt the event by any and all means possible. Canceling the public event would thus involve prior restraint of free speech, which is illegal, but LSD’s documented incitement of others to violence or lawless action is not protected free speech and may suitably be investigated by the police.

Second, while President Hatchett is suitably concerned about the safety of his faculty and students, many of the solutions proposed by his cabinet and governing board take only a short-term approach. With the exception of creating Bias Response Teams (themselves questionable since they appear to be designed for prior restraint of free speech), none of the proposed actions involve substantive, long-term approaches. DISU should also consider developing publications or web pages that explain what free speech is, what “time, place, and manner” restrictions are, and how the institution will both protect free speech and address expressions that are deemed threats or incitements to violence. In other words, DISU should make this challenge a teachable moment. A good example of an institution that has created this type of website is North Carolina State University (Free Speech, 2020).

Third, President Hatchett should consider launching a program that educates students—as well as faculty members and administrators—on how differences of opinion can be expressed constructively and how to discuss sensitive or contentious issues. Excellent examples of this approach are Widener University’s Common Ground Initiative (Common Ground, n.d.), the University of Alaska at Anchorage’s programs Start Talking (Landis, 2008) and Toxic Friday (Roderick, 2016), and Florida Atlantic University’s Agora Project (The FAU Agora Project, n.d.).

Free speech on college and university campuses will continue to present significant challenges to academic leaders. As with so many of today’s issues, there is no “one size fits all” strategy that can bring about a perfect accommodation between campus civility and free speech. Addressing the challenges we all face as academic leaders will require a great deal of effort, compromise, and mutual understanding on the part of students, faculty members, and administrators alike if we want to promote truly free scholarly inquiry while simultaneously creating a culture of respect for those who oppose other people’s ideas.

References

Berdahl, R. M. (2004). Clark Kerr memorial. Retrieved from https://chancellor.berkeley.edu/chancellors/berdahl/speeches/clark-kerr-memorial

Common Ground: Widener University. (n.d.) Retrieved from https://www.widener.edu/about/points-pride/common-ground

Dynia, P. A., & Hudson, D. L. (2017, September). Rights of students. The First Amendment Encyclopedia. Retrieved from https://mtsu.edu/first-amendment/article/931/rights-of-students

Einstein, A. (1950). Albert Einstein: Out of my later years. New York, NY: Philosophical Library.

The FAU Agora Project: Florida Atlantic University. (n.d.) Retrieved from http://www.fau.edu/agora

First Amendment on private campuses. (2015, December 1). Harvard Civil Rights-Civil Liberties Law Review. Retrieved from https://harvardcrcl.org/first-amendment-on-private-campuses

Free Speech: North Carolina State University. Retrieved from https://www.ncsu.edu/free-speech

Landis, K. (Ed.) (2008). Start talking: A handbook for engaging difficult dialogues in higher education. Anchorage, AK: The University of Alaska Anchorage and Alaska Pacific University.

Roderick, L. (Ed.) (2016). Toxic Friday: Resources for addressing faculty bullying in higher education. Anchorage, AK: The University of Alaska Anchorage.

Robert E. Cipriano, EdD, and Jeffrey L. Buller, PhD, are senior partners with ATLAS—Academic Training, Leadership, & Assessment Services. Reach them at rcipriano@atlasleadership.com and jbuller@atlasleadership.com, respectively.

ATLAS Leadership Training is offering a 90-minute webinar on the topic of free speech at campus civility at 1:30 p.m. Eastern Daylight Time on April 30 and August 12, 2020. Information on registration and pricing may be found by visiting shop.atlasleadership.com.