Campus Speech Research Articles

Return of the Campus Speech Wars

Review of Erwin Chemerinsky and Howard Gillman's Free Speech on Campus.

Sources of Free Speech in U.S. Higher Education: What the Law Tells Us

This critical literature review discusses how U.S. law has addressed the issue of free speech on college campuses. Ultimately, colleges and universities are tasked with balancing First Amendment rights with the safety of their students, faculty, staff, and campus members. In the future, more legislation should continue to inform how colleges and universities draft hate and bias policies and campus speech policies, meant to balance First Amendment rights and the aforementioned safety of educational stakeholders and the general public.

Student Opinion on Campus Speech Rights: A Longitudinal Study

Two studies of Smith students views on speech rights fifteen years apart show significant movement. The political views of the student body have shifted well to the left and the group self-identified as strong liberal is the least supportive of speech rights. That was not true in the survey fifteen years ago.

Protecting Free Speech and Academic Freedom in Universities

AbstractRestrictions on speaking events in universities have been created both by recent student‐led efforts at ‘no‐platforming’ and by Part 5 of the Counter‐terrorism and Security Act 2015 which placed aspects of the government's Prevent strategy on a statutory basis. The statutory Prevent duty in universities includes, under the accompanying Guidance, curbing or monitoring events that could have an impact in drawing persons into terrorism. This article places the combined impact of Part 5 and student‐led curbs on campus speech in context by juxtaposing pre‐existing restrictions with the various free speech duties of universities. Focusing on speaking events, it evaluates the resulting state of free speech and academic freedom in universities. It finds potential violations of established free speech norms due to the impact of pre‐emptive strikes against some campus‐linked speech articulating non‐mainstream viewpoints. But it also argues that not all such speech has a strong foundation within such norms.

Governing Campus Speech: a Bottom-Up Approach

I review arguments favoring bans on problematic speech (e.g., hate speech) on campus. Contrasting such calls for top-down regulation, I explore the potential for a “bottom-up approach” to campus speech governance to address vexing concerns pertaining to campus speech without violating free speech and academic freedom principles. I examine the political economy and epistemological dynamics inherent within the two forms of governance. I argue that, relative to a centralized top-down approach, a decentralized bottom-up approach to speech governance avoids political dynamics that bend toward the inappropriate use of power. Further, I argue that a bottom-up approach leaves the discursive space contestable, and therefore more open to new discovery and correction. Recognizing that a bottom up approach is no panacea, I also consider open questions and concerns that warrant further inquiry.

Heckle: To Disconcert with Questions, Challenges, or Gibes

Can a case be made for permitting, encouraging and protecting the activity of heckling? Heckling has the effect of disconcerting speakers and preventing them from the presentation of their speech on exactly the terms that they have planned. And that is actually the purpose and the value of heckling. At a time when political choreography dominates public speech, it is a good idea to encourage modes of speech and interaction that do not require a passive audience sitting still to attend to speech on exactly the speaker's own terms. Heckling can be viewed through the lens of suppression of speech, disruption, and the potential for violence (the heckler's veto); or it can be viewed through the lens of lively exchange and a more interactive understanding of free speech values. This paper takes the latter perspective, and uses it to analyze and evaluate campus speech issues and questions such as the relation between speakers' rights and listeners' rights.

Regulating Freedom of Expression on Campus

Regulating Freedom of Expression on Campus Benjamin Medeiros Free Speech on Campus. By Sigal Ben-Porath. Philadelphia: University of Pennsylvania Press, 2017. 136 pp. $19.95 (cloth). Free Speech on Campus. By Erwin Chemerinsky and Howard Gillman. New Haven, CT: Yale University Press, 2017. 216 pp. $26.00 (cloth). Safe Spaces, Brave Spaces: Diversity and Free Expression in Education. By John Palfrey. Cambridge, MA: MIT Press, 2017. 192 pp. $19.95 (cloth). For several years now, the news has been saturated with coverage of protests against invited speakers, debates over the wisdom of "safe spaces" and "trigger warnings" in the classroom, demands that universities punish those who make offensive comments, and calls to rename university buildings. No segment of the ideological spectrum has been silent. Mockery of millennial student "snow-flakes" is routine in right-wing media, and right-wing personalities like Milo Yiannopoulos and Ben Shapiro have seemed to relish the outrage generated by their mere appearance on campuses. Some more liberal writers like Jonathan Chait have also worried that militant political correctness is compromising intellectual inquiry.1 Others, however, have called these concerns misdirected.2 Three new books provide comprehensive socio-legal analysis of recent campus speech controversies. The books share the general premise that the treatment of freedom of expression in educational institutions has special significance in a democratic society, and they each provide useful guidelines for how university communities can think through the conflicts named above. In fact, the books display a striking level of consensus regarding the dynamics of these conflicts. At the same time, each author describes the priorities of educational institutions in somewhat different terms. Erwin Chemerinsky and Howard Gillman contend that "however important free speech principles are in society as a whole, they require even stronger protections in academic settings" (19). They argue that academic institutions must be places where all ideas can and should be debated (51). As a result, [End Page 315] their "central thesis is that all ideas and views should be able to be expressed on college campuses, no matter how offensive or how uncomfortable they make people feel" (19). John Palfrey and Sigal Ben-Porath likewise see academic environments as critical fora for the exchange of the widest range of possible ideas, but they are not true microcosms of society. As Ben-Porath reminds us, their "aims . . . go well beyond the general goals of a democratic republic and it makes sense for them to be organized and managed based on additional principles" (10). Her "inclusive freedom" framework for campus speech is thus a fundamental attempt to balance "the necessity of protecting free speech" while "making sure that all are included in the ensuing conversation" (12). Palfrey's framework is more literally described in terms of diversity concerns, but the conceptual contention is similar. He draws attention to the complementary, rather than contradictory, goals of diversity and free speech, calling diversity "an essential element of freedom of expression" (62). Overall, the books share the broad goal of defending the ideals of free speech in the campus context while working to reconcile them with the mandate to create more inclusive and equitable campuses. Such a fundamental goal is laudable. At the same time, they reaffirm the soundness of the liberal free speech tradition—a tradition that critics have long contended benefits some speakers at the expense of others. Such defenses of the status quo can feel unduly sanguine in today's fraught political climate. Perhaps the times call for more imaginative solutions when alt-right (or "alt-lite") figures can routinely target campuses for provocations that sometimes turn violent,3 yet faculty (especially those with little job security) are harassed or pressured to resign for otherwise protected speech.4 Though it likely was not their choice, Chemerinsky and Gillman's book cover depicts a brick wall on which the title is (rather neatly) spray-painted. This image can be read as a kind of metaphor for how these books address the contemporary debate about campus speech regulation. For all of their insight into recent conflicts, perhaps the books are still operating as if the controversy today is over graffiti on a wall. A critical American studies scholar could thus...

Heckle: To Disconcert with Questions, Challenges, or Gibes

Can a case be made for permitting, encouraging and protecting the activity of heckling? Heckling has the effect of disconcerting speakers and preventing them from the presentation of their speech on exactly the terms that they have planned. And that is actually the purpose and the value of heckling. At a time when political choreography dominates public speech, it is a good idea to encourage modes of speech and interaction that do not require a passive audience sitting still to attend to speech on exactly the speaker's own terms. Heckling can be viewed through the lens of suppression of speech, disruption, and the potential for violence (the heckler's veto); or it can be viewed through the lens of lively exchange and a more interactive understanding of free speech values. This paper takes the latter perspective, and uses it to analyze and evaluate campus speech issues and questions such as the relation between speakers' rights and listeners' rights.

The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University

This forthcoming chapter in a book to be edited by Lee Bollinger and Geoffrey Stone scrutinizes the frequently-heard claim that universities are suppressing the “First Amendment” rights of students, faculty, and invited speakers. The chapter argues that this claim rests on a fundamental misconception about the nature of First Amendment rights, which apply to public discourse and are designed to establish preconditions for democratic self-determination. Speech at universities, by contrast, must be regulated to attain the ends of education. Debates about the proper regulation of campus speech are thus ultimately debates about the nature of education, not about First Amendment rights. The overblown and misleading constitutional rhetoric of these debates is symptomatic of a larger debasement of our understanding of the nature of free speech protections, a debasement that could seriously undermine the strength of Free Speech principles when we actually need to call upon them to do serious work to protect the integrity of our political system.

Assaultive Words and Constitutional Norms

The tension between the competing demands of the First. Amendment’s guarantee of free expression and the Fourteenth Amendment’s implicit promise of dignity and equality has long been evident in societal debates about identity politics, in academic writing, and in disputes over regulation of campus speech. This article argues that the First Amendment generally protects campus speech that includes hurtful words, even those that verbally assault a target or are seen as perpetuating an environment that demeans or endangers women, minorities and others. Protection of such offensive speech also promotes the proclaimed norms of higher education, which is why so many private colleges and universities bind themselves to First Amendment standards which are only applicable to public institutions as a matter of law. In addition to analyzing campus speech regulations under First Amendment standards, the article offers some possible solutions and constitutionally sound responses, concluding with suggestions directed at law schools.

Free Speech and Learning from Difference

In debates about campus speech, there are arguments from the left and from the right that the community function of a college and the intellectual functions of a college can’t both be maximized. Improving the community role necessarily entails placing limits on the intellectual roles, and improving the intellectual role necessarily entails placing limits on the community roles. Where these arguments disagree is in the valuation of the tradeoffs between these roles. I argue that the apparent tension between the community role and intellectual role of colleges can be resolved, or at least mitigated, if we make a clearer distinction between speech and community endorsement of speech. What’s more, if we understand speech to be exploratory in nature rather than declaratory, we may remove some of the status competition between different groups that characterizes the dispute. This can allow for potential complementarities to emerge from the community support role of a college and the intellectual role. The core idea that I wish to explore is the notion of discovery that is embedded in Mill’s defense of free speech and in his conception of experiments in living. This approach depends on the idea that we can abandon the goal of defeating our opponents, and instead embrace the goal of accommodating one another.

Campus Speech and the Functions of the University

The roles and limits of free speech on university campuses have lately been of increasing interest. This Article suggests that as long as our understandings of the basic functions of the university itself are conflicting and contested, our understandings of the proper scope of free speech on campus will be similarly irreconcilable, even if we think of the university in terms of community. The Article explores this thesis through considering, in particular, problems of hostile speech, of professorial academic freedom, and of speech by students transitioning into professional service roles.

KINDLY INQUISITORS, The New Attack on Free Thought

George F. Will’s forward to the 2013 edition of this book provides important focus to the problems arising when even one person is “offended” by free speech (xiii). From campus speech codes to legal and social theory aimed at balancing the First Amendment against other rights, Will flatly rejects the liberal movement toward “sensitivity,” “inclusiveness,” “multiculturalism” and other values that attempt to limit expression: What is needed is a book explaining why the usual, and intended, result of this practice is a finding that those objectives… are more worthy than the objective of maintaining a liberal regime of protected expression. What is needed, more than ever, is this book. (xiv) It has been twenty years since the first edition of KINDLY INQUISITORS, yet conflicts persist. The U.S. Supreme Court thirty years before Rauch in New York Times v. Sullivan (1964) and its progeny pressed ahead.

Special Introduction from the Religion and Politics Editor

Entering the twenty-sixth year of producing first-rate feminist scholarship in religion is reason enough for celebration. With this issue, we have sweetened the occasion by assembling the range of sections for which the Journal has become famous—articles, poetry, roundtable, and review essay—and by formally introducing a new section entitled “Religion and Politics.” This section is dedicated to the task of unpacking the religious rhetorics and disciplinary practices (like “confession”) encoded in political speech and public policy. The editorial board of the JFSR is well aware that producing feminist scholarship in religion is a profoundly political act. Nonetheless, we are convinced that the contemporary intersections of religion and politics are both proliferating and particularly volatile. Many examples could be cited: the rising tide of “religious” violence; the expanding political valence of heterosexist, racist, and paternalist “family values” and “faith-based initiatives”; the curtailing of women’s access to birth control and safe abortion; the metastasizing surveillance of campus speech and dress; and the continuing pressures of migration and globalization, which expose women’s bodies to unmitigated violence, economic vulnerability, and the asymmetrical and unwieldy burdens of preserving cultural continuity and authenticity. These developments call for sophisticated, rigorous, and timely responses in the pages of this esteemed journal. The articles gathered here evidence the remarkable range of issues in the field as well as some persistent themes: the extraordinary and ambivalent power of women’s bodies in public, whether gaping, gazing, mourning, or nursing; the contextual, relational, and dynamic dimensions of feminist and womanist ethics; and the therapeutic and political valences of religious speech and ritual. In the first article, Rachel Muers outlines a feminist ethics of breast-feeding that directly challenges the individualization of the responsibility of feeding infants—a responsibility that is placed almost exclusively on the shoulders of the “total mother.” Muers calls on feminists to recognize breast-feeding as a significant human good, but, at the same time, cautions them as to how contemporary

Speech Cases and the Corporatization of Speech: A Review Essay

Speech Cases and Corporatization of Speech: A Review EssayRestoring Free Speech and Liberty on Campus Donald Alexander Downs. Oakland, CA: The Independent Institute; New York: Cambridge University Press, 2006. 295 pages. $19.99 (pb).To say least, Restoring Free Speech and Liberty on Campus grapples with controversial topic-one that continues to roil universities and colleges United States and Canada. It is sure to draw ire of those who believe that campus speech codes are necessary counterweight to systemic inequality. Yet it is also book that raises profound questions about more generalized erosion of free speech and thought academic milieu-a milieu whose central purpose, ideally envisioned, is to provide forum for expression of views that are challenging, contentious, uncomfortable, and disturbing. Its detailed examination of way that some institutions have chosen to deal with expression of troublesome ideas opens up an avenue for nuanced consideration of forces transforming 21st-century North American higher education.Downs, professor of Political Science, Law, and Journalism at University of Wisconsin-Madison and Research Fellow at The Independent Institute Oakland, California, originally supported speech codes middle 1980s. It was natural for him to do so, since his first book, published 1985 by University of Notre Dame Press, was Nazis Skokie: Freedom, Community, and First Amendment, which argued that targeted racial vilification of kind practiced against Holocaust survivors does not merit First Amendment protection because of trauma and moral harm it inflicts (pp. 13-14). But he quickly realized that speech codes, whose ostensible goal was to create an environment similarly free of trauma and moral harm, were new kind of censorship: originally well-meaning, but end producing illiberal, consequences that [were] just as detrimental to open universities and minds as traditional forms of (p. xx). Thus, place of reactionary censorship emanating from voices external to university, there arose that was spearheaded by leftist sources inside ivory tower (p. xx).Why did speech codes come into being? Downs traces the seeds of progressive censorship to replacement of liberal principles (such as integration, individual moral conscience, and universalism as practiced by Martin Luther King, Jr.) with antiliberal political that were part based on Frantz Fanon's advocacy of group-based identity, recognition, therapeutic self-esteem, and oppression (pp. 36-37). But it was Herbert Marcuse's book A Critique of Pure Tolerance (1969) that provided intellectual justification for progressive censorship. Because Marcuse believed that Imperialism, militarism, racism, bureaucracy, corporatism, technology, and mass marketing and media had undermined possibility of truly rational liberation by systematically inculcating [many individuals with] consciousness and mental conditioning, it was foolish to allow those manipulated and indoctrinated individuals right of abstract free speech (pp. 38-39). Such tolerance was nothing less than repressive or false insofar as it would continue existing pattern of oppression. What was instead needed was true tolerance, which would include withdrawal of toleration of speech and assembly from groups and movements which promote aggressive policies, armament, chauvinism, discrimination on grounds of race and religion, or which oppose extension of public services, social security, medical care, etc. (qtd. Downs, p. 39).In late 1970s and early 1980s, these ideas formed basis of a new form of radical, group-identity based feminism associated with legal scholar Catharine MacKinnon and writer Andrea Dworkin, who suggested that pornography should be censored in name of civil rights and progressive causes (pp. …

Consumer Student or Citizen Student? The Clash of Campus Speech Codes and Free Speech Zones

(2006). Consumer Student or Citizen Student? The Clash of Campus Speech Codes and Free Speech Zones. Free Speech Yearbook: Vol. 43, No. 1, pp. 93-105.

The Precedent That Wasn't: College Hate Speech Codes and the Two Faces of Legal Compliance

This article undertakes an empirical investigation into the development and persistence of college hate speech codes, asking why so many elite institutions of higher learning either retained or created speech policies that contradicted a national series of court cases. The method is both quantitative and qualitative, looking for broad patterns of response among the schools and also explaining why individual institutions did or did not comply with the court decisions. In the end, the article not only teases out the why of compliance decisions but also provides a greater understanding of the relationship between legal compliance and judicial impact.

Campus hate speech on trial

Ten years after publication of the first edition of Timothy Shiell's path breaking study, restrictions on faculty and student speech on college campuses continue to be hotly contested in the mainstream media, on the internet, in the journals of academic disciplines, in courtrooms, classrooms, and chat rooms. This revised edition adds substantial new material that updates cases and conflicts during the past decade, expands the original's coverage of the relevant literature, and dramatically reinforces Shiell's original argument. In the first edition Shiell noted that, despite commitments to free speech and the open exchange of ideas, American colleges and universities had increasingly ignored such principles by implementing numerous hate speech codes designed to protect students from racial, sexual, and other forms of harassment. Taking their cue from Title VII of the Civil Rights Act, which guarantees the right to a non hostile workplace environment, those regulations had posed seemingly unresolvable conflicts between the ideals of free speech and equal protection. Shiell explored both sides of the fiery debate over campus hate speech codes to bring out their philosophical and legal underpinnings, clarifying classic free speech arguments as well as the ideas of harm and hostile environment, and analyzing numerous case histories. Pointing out that Title VII wasn't meant to apply to academia, Shiell also encouraged readers to consider the role of the courts in eliminating prejudice in this setting and presented a strong argument for the form the codes themselves should ideally take. The new edition adds substantial new material on developments concerning the Deterrence Argument, the hostile environment approach, new judicial decisions, and the International Argument. It also updates the comprehensive bibliography and list of legal decisions, significantly increasing the value of both for scholars and policymakers alike. Shiell eloquently makes the case that campus speech codes - no matter how well grounded in history, law, or philosophy - have tended to be overbroad, arbitrarily enforced, and used selectively to protect only certain groups at the expense of others. For that reason especially, his book will continue to challenge academics and general readers to reconsider how we deal with this important issue.

Academic freedom and tenure: ethical issues

Part 1 The Justification of Academic Tenure and Academic Freedom Chapter 2 The Justification of Academic Tenure Chapter 3 Ethical Issues in Tenure Chapter 4 The Justification of Academic Freedom Chapter 5 Ethical Issues in Academic Freedom Part 6 Readings Chapter 7 1940 Statement of Principles on Academic Freedom and Tenure With 1970 Interpretive Comments (AAUP) Chapter 8 On Freedom of Expression and Campus Speech Codes (AAUP) Chapter 9 Statement on Professional ethics (AAUP) Chapter 10 A Statement of the Association's Council: Freedom and Responsibility (AAUP) Chapter 11 Academic Freedom-Its Basic Philosophy, Function, and History Chapter 12 Academic Tenure: An Economic Critique Chapter 13 Does Academic Freedom Have Philosophical Presuppositions? Chapter 14 Rationality and Realism, What Is at Stake?

“It's going to be a rough ride, buddy!”: An analysis of the collision between “hate speech” and free expression in the Khallid Abdul Muhammad controversy

A phenomenological analysis of Kean College students’ responses to excerpts from Khallid Abdul Muhammad's 1993 campus speech, “The Secret Relationship Between Blacks and Jews,”; reveals contradictory signification processes for students in terms of race. African American students tend to interpret Muhammad's words in terms of their race's marginalized status in a White society, an interpretation that results in experiencing Muhammad's message as “pro‐Black,”; rather than as racist. Non‐African American students do not make this connection and overwhelmingly interpret Muhammad's words as evidence of his racist attitudes and his role as an unprincipled troublemaker, leading to their support for limits on free expression.