Censorship on Campus: What Happened to Free Speech and Free Expression?

The focus of this article is on public universities. But it is important to note that, relative to free speech on campus, there is a distinction between public and private academic institutions. Public institutions are state agents and legally bound to honor each student’s constitutional rights. First Amendment protections at public universities are settled law. Conversely, the First Amendment does not directly bind private universities. Nonetheless, if a private academic institution represents itself as a place where free speech is protected, then it should be held to the same standard as a public institution. Most private universities declare to be supporters of free thought and therefore should be held to the standards they establish.

College (public or private) is meant to be the place that clears away the cobwebs in one’s mind. For the first time in their lives, students are freed from the pressures to conform to ideas imposed by family and friends. So why is free speech so markedly combative on college campuses? Across our nation, accusations and refutations have mushroomed, with students and administrations bitterly divided about the invitation of speakers, student organization activities, class lectures, class textbooks, etc. Purportedly, the peak of political correctness of the 1980s–1990s, speech codes, and censorship were conquered by the courts and public opinion. In actuality, the threats to campus speech still exist.

University officials who attempt to “protect” students from words and ideas that they find unpleasant or offensive are doing them a disservice. This sets up these students for a harsh entry into reality when they graduate and ultimately enter the workplace. If bright, inquisitive students possess the capacity to gain entry to university, it is quite absurd to presume that they cannot handle merely listening to dissenting ideas without feeling victimized, triggered, or frightened. In the real world, diversity of thought exists. Real debate and discourse is a two-way street with a free exchange of ideas. It is OK to investigate different viewpoints. The exploration of new ideas and deep thinking is fulfilling. College provides an opportunity to learn, mature, and develop your thoughts on life, politics, religion, etc. To better understand the “real” world, it is imperative to encounter varying viewpoints, to listen, to ask questions, and to conduct civil discourse.

Two of the most popular phrases used when discussing free speech are “hate speech” and “offensive speech.” First, hate speech is a ubiquitous saying that reflects our contempt for bigotry, racism, and bias, but it is not a correct statement of law. There is no First Amendment exception that allows the government to punish “hate speech” that disparages people based on their identity. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 829–30 (1995). Things we call “hate speech” may sometimes be covered by an existing First Amendment exception. For example, a racist speech might try to provoke imminent violence against a group. Or it might be reasonably construed as an immediate threat of harm. Although we may find hate speech disgusting, it is broadly protected by constitutional law.

Second, language denoted as offensive speech is defined as to offend based on the audience member’s race, religion, ethnicity, gender, or sexual orientation. Harvey A. Silverglate et al.,  FIRE’s Guide to Free Speech on Campus 20 (Greg Lukianoff et al. eds., 2d ed. 2012). Note, offensive speech does not fall within the fighting words exception. Dambrot v. Cent. Mich. Univ., 55 F.3d 1177 (6th Cir. 1995). The issue with offensive speech is that it restricts speech and expression while favoring one viewpoint over another to circumvent demonstrations and protests. Frankly, public colleges cannot constitutionally punish offensive speech. Gooding v. Wilson, 405 U.S. 518 (1972).

We are living in an era when provocation rules and divisions manifest. Restrictions on free speech will ultimately be the demise of free speech. Free speech applies to all viewpoints. When advocating one’s opinion, suppressing opposing viewpoints as inconsequential speech is unjust and discriminatory. Free speech is for all, not just some. Each of us has a right to speak and be heard. This foundational principle is being eroded on American college campuses. “When did a dissenting point of view become an endangered species?” Ed Feulner, “Free Speech: For All, Not Just Some,” Townhall, May 9, 2018. When students demand that their university constrain the speech rights of others, there is one answer: to educate students as to what the Constitution requires and to protect freedom of expression for all. We must ensure that our colleges and universities are not dedicated to censorship or indoctrination and that they are dedicated instead to freedom.

Monique Altman is an attorney practicing in Atlanta, Georgia.

_{Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).}