First Amendment: Campus Free Speech

Stephen Kershnar

Losing Free Speech in Academia
Dunkirk-Fredonia Observer
October 30, 2012

In higher education, state colleges and universities have a troubling tendency to restrict free speech far beyond what the Constitution allows or what is morally right. This is troubling because these institutions are central to the free market of ideas and to people freely shaping their own lives.

The right to free speech is the right that others refrain from interfering with you when you express your ideas. This right is crucial to the marketplace of ideas. The underlying notion here is that just as in a free market of goods, the best goods tend to win out, in a free market of ideas, the best ones tend to win out. Entries into the marketplace need not be intellectual treatises but can also include emotional appeals, art, and parodies.

In On Liberty (1859), philosopher John Stuart Mill argued that there are strong reasons to allow people to present and discuss disfavored views. First, such views are sometimes true or contain true ideas within them. Discussing them can bring out these truths. Second, even when such views are false, discussing them enables people to see why they are false and thereby gain a better understanding of what justifies their own views. On this theory, for example, by freely discussing the pros and cons of difficult issues (for example, Christianity, homosexuality, and promiscuity), people are more likely to have true ideas and to understand the basis for their own beliefs.

In addition to these benefits, more recent writers, such as Harvard University professor Tim Scanlon, have argued that people have more opportunity to shape their own lives when they are able to freely discuss ideas. Discussing ideas allows them to better decide what sort of people they want to be and how they should act. This is because they are better able to consider and assess different principles that might guide their lives.

Writing recently in The New York Times, Greg Lukianoff, the president of the Foundation for Individual Rights in Education (FIRE), noted that 65% of colleges had policies that violated the First Amendment’s right of free speech. He further noted a 2010 study by the American Association of Colleges and Universities that found that 19% of faculty and 36% of students strongly agreed that it was safe to hold unpopular positions on campus. Administrations are chilling controversial speech and the people who are best in the know (faculty) are ones most chilled. Lukianoff argues that this chilling has resulted from the dramatic expansion in the number of administrators and staff as well as the culture of political correctness that wants to suppress what it takes to be racially insensitive speech and sexual harassment.

SUNY-Fredonia’s policies nicely illustrate the problem with its unconstitutional restrictions on free speech, although to be fair many other campuses provide just as good an illustration. The campus’ diversity policy prohibits “[Creating] a situation that results in the discomfort of, or harassment or excessive ridicule of a member of the college community.” This policy might be used to punish a faculty, student, or visitor who argues that because the Bible condemns homosexuality, gay sex is wrong, if gay activists claim that this causes them discomfort. Similarly, someone who argues that because modern Muslim countries trample on liberty, keep women down, and engage in endless sectarian fighting, Islam is likely bad and false, if Muslim activist claim that it causes them excessive ridicule.

This restriction does not fit into an exception to the First Amendment protection of free speech. It is not narrowly targeted toward fighting words because these words must be directed at individuals and tend to provoke violence. Nor is it narrowly targeted toward obscenity because it is not narrowly targeted at sexually explicit speech. In addition, the Supreme Court has held that indecent speech (sexually explicit, tasteless, or offensive speech) is stringently protected on campuses. See Papish v. Board of Curators of the University of Missouri (1973).

This restriction is overbroad in that it can be used to punish constitutionally protected speech as well as unprotected fighting words and obscenity. It is also vague in that faculty and students have to guess as to when such a rule applies. Both features make a state campus policy unconstitutional. See, for example, Doe v. University of Michigan (1989).

SUNY-Fredonia’s sexual harassment policy is also unconstitutional. It bans “[A]ny repeated or unwanted verbal or physical sexual advance, sexually explicit derogatory statement, or sexually discriminatory remark made by someone in the workplace or educational setting. … This behavior constitutes sexual harassment when … such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working or learning environment.” A faculty member might run afoul of this rule if he argues (as did former Harvard president Larry Summers) that due to parental duties or genetics, women will be underrepresented in science and this deeply offends women’s groups on campus. A student might get impaled on this rule if he argues that the current hookup culture makes too many college women unclean in the eyes of God and this deeply offends women’s groups who are famously thin skinned.

Sexual harassment codes on state campuses must satisfy the First Amendment and the standard is narrow. To be banned, the conduct must be so severe, pervasive, and objectionably offensive that it effectively bars the victim’s access to an educational opportunity or benefit. As FIRE points out that, this standard, from Davis v. Monroe County Board of Education (1999), has been relied on by courts, colleges, and legal counsel for more than a decade. In addition, it is the standard adopted by the relevant part of the federal government (Department of Education’s Office of Civil Rights). Fredonia and far too many other campuses have not adopted such a narrow ban even though courts have consistently shot down broader bans. See, for example, DeJohn v. Temple University (2008).

SUNY-Fredonia’s internet policy bans content that is “vulgar, racist, sexist, homophobic …” This policy also wouldn’t survive constitutional challenge in part because vulgar is overbroad and vague and in part because in banning only some views (racist, sexist, and homophobic ones), the campus engages in viewpoint discrimination. Courts take a very harsh view of the state discriminating against certain viewpoints and this has been applied at the campus level (see, for example, Rosenberger v. University of Virginia (1995)). Other Fredonia policies, such as that requiring orderly and dignified expression, also run afoul of the yet other protections of free speech. The courts have given strong protection of parodies even when they are neither orderly nor dignified.

Justice Robert Jackson famously said that “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” State colleges and universities should protect free speech rather than allowing the orthodoxy of political correctness to constrict the marketplace of ideas.