BY BRIAN ROSENBERG
An important part of my job is standing before groups of inquisitive people and answering questions. Virtually every time I do so these days, I am asked about the subject of “free speech” (or the ostensible lack thereof) on college campuses.
Rarely do these questions have easy answers. People, I have found, tend not to ask questions that have easy answers, at least when they are querying me.
About the only unassailable observation about so complex a subject is this: the nature of what free speech means on a college or university campus—the extent to which it must be limited, if at all, by other considerations—has not for many years been more vexed or prominent.
Here are some of the points I make when asked about the subject, stripped of the emotion and hyperbole by which it is often enveloped.
(1) The nature of the question is different for public and private college campuses. Most public campuses are subject to the rules that govern public property and are therefore bound to a very expansive understanding of free speech. Private colleges are private property and have more latitude to establish, should they so choose, narrower limits on free speech. Put simply, a person’s free speech rights do not extend to the right to post a sign on the lawn of your home.
(2) For a private college, the central question regarding speech is less constitutional than educational. That is, the fundamental question is not “What is guaranteed by the first amendment?” but “What is most likely to create an environment conducive to teaching and learning?” The best learning environments are those in which a wide range of views can be expressed, even views that are unpopular. This is both an essential tenet of academic freedom and the best way for all of us to become smarter. Being surrounded only by those with whom one agrees is not conducive to learning (and, as an aside, is one of the many harmful effects of social media).
(3) That said, it is reasonable for a private college to establish community expectations regarding civility, harassment, and discrimination that place limits around forms of speech that are otherwise constitutionally protected. For example, it is not illegal to display a swastika or to hang a noose from a tree. It is reasonable and permissible for a private college to decide that the display of a swastika or the hanging of a noose is a violation of campus policy and subject to disciplinary action. What is crucial in these cases is clarity and consistency: the college must be as clear as possible in its definition of prohibited forms of speech and must be consistent in its application of the rules.
(4) Here is what Macalester’s student and employee handbooks state on this subject: “Macalester College values the right to free speech and the open exchange of ideas and views in our learning environment….[ but] Any act that has the purpose or effect of unreasonably or substantially interfering with an individual’s safety and security by creating an intimidating, hostile, or offensive educational or working environment will not be permitted.” This language is straightforward, though it is difficult to see how any statement could avoid all ambiguity. Words like unreasonably and substantially will mean different things to different people.
(5) In general, speech that poses a direct threat to the safety of an individual or group—“I am going to burn down your house”—is not constitutionally protected. The single most challenging issue for college campuses, and the one that has sparked the most controversy, is establishing the definition of a “threat to safety.” The simple expression of views with which one disagrees, even passionately, is not by itself a threat to safety sufficient to limit speech. There is, however, a grey area between overt physical threat and mere disagreement within which each campus must consider where and whether to establish limits. A swastika marked on the entryway to a residence hall might not constitute a direct threat to any particular student, but it can be construed as a threat to Jewish students on campus; similarly, a noose hung from a tree outside a building can be construed as a threat to African American students. Such threats can make it more difficult for students to pursue their studies and may therefore be declared impermissible. While it is true that students on some campuses have gone too far in their definitions of what is threatening, it is also true that some observers have been too dismissive of the potential for expression of such things as overt racism, sexism, or homophobia to interfere with a student’s pursuit of an education.
(6) Private colleges have an educational obligation to be expansive in their invitations to and tolerance of outside speakers, but not an obligation to permit anyone to speak, particularly when financial costs are involved. Distinctions should be based not on the views of the speaker, but on the quality and seriousness of the speaker, as judged by reasonable academic standards. A biology department is not obligated to allow a creationist a platform if in its professional view the claims of the speaker do not hold up to rigorous scientific investigation. A political science department is not obligated to provide a platform for a mere provocateur. These distinctions of course involve making informed, qualitative judgments, but that is precisely what the faculty, staff, and students at a college are expected to do every day.
(7) Protests against speakers with whom one disagrees are an acceptable form of expression on a college campus; protests that prevent someone else from speaking are not. Putting aside the obvious ethical problem— by what calculus does one person’s right to speak supersede another’s?—such protests have proven time and again to be unpersuasive and even counterproductive.
(8) These issues are likely to remain visible and challenging in a time of sharp polarization. Colleges should respond by doing what they do best—teaching—and so courses like U.S. Civil Rights and Civil Liberties, taught this semester in Political Science, and Civil Rights in the United States, taught this semester in American Studies, have never been more important.
Brian Rosenberg is president of Macalester College.
April 25 2018Back to top