What is the Role of Universities When it Comes to Freedom of Speech?
Ved Nanda is Evans University Professor and director of the Ved Nanda Center for International and Comparative Law. He has taught at the University of Denver's Sturm College of Law since 1965. Nanda is past president of the World Jurist Association, former honorary vice president of the American Society of International Law and a member of the advisory council of the United States Institute of Human Rights.
Graduation ceremonies and commencement speeches with lofty messages to graduates are over. Campuses are rather quiet in the summer. But many schools are grappling over the summer with a prickly issue left over from last year that they will certainly face again next year: the freedom of expression.
Last academic year, numerous dramatic conflicts occurred between conservative speakers, especially alt-right celebrities, and protesters. Threats of violence and protests led to schools canceling and rescheduling speaking events. For example, violent protests at the University of California Berkeley, where students more than 50 years ago founded the free-speech movement, caused cancellation of the speaking event of the controversial Milo Yiannopoulos, a former Breitbart editor. Berkeley also rescheduled an appearance by Ann Coulter to a later date, and she felt constrained to withdraw. At Middlebury College, violence disrupted the speaking event of Charles Murray, co-author of the notorious “The Bell Curve.”
Vice President Mike Pence condemned the actions of more than 100 students who protested his anti-LBGTQ and anti-refugee policies by walking out of his commencement address. He argued that universities were sanctioning “political correctness,” which he equated with “suppression of the freedom of speech.”
Most Americans — liberal and conservative alike — consider universities to be places where all speech, including even hateful speech, is constitutional and legally protected. They prefer the only restrictions on racist, sexist, xenophobic and trans-phobic speech on campuses to be civil discourse, and oppose universities’ attempts to adopt policies and codes prohibiting hate speech.
But as Tracie Yoder, National Lawyers Guild Director of Research and Education, writes, “What are lost in the abstract notion of free speech are the rights of those who do not have the connections or wealth to equally participate in public discourse. The ‘marketplace of ideas’ is like any other marketplace; those with the most resources dominate.”
Yoder points to one group that reflects this asymmetry of rights, the Federalist Society, “which has played a critical role in the conservative shift of law and politics over the past 35 years.” It spends immense financial resources — $2.5 million in 2016 alone — to make that shift happen, while protesters have only signs and voices.
There appears to be a double standard at some universities because, as Yoder stated, “while giving a speech attacking individuals and groups based on their race, sexuality, or immigration status is considered legal and acceptable by universities, the protest of those who find these viewpoints reprehensible are often censored or punished by these same institutions.”
A vice provost at New York University, Ulrich Baer, argued in a New York Times op-ed that “free speech protections … should not mean that someone’s humanity … can be freely attacked, demeaned or questioned.”
Several states are considering legislation purporting to ensure free speech on college campuses, but we must scrutinize such proposals very carefully for the actual underlying intent. For example, under a proposed Wisconsin bill, “protests and demonstrations that interfere with the rights of others to engage in or listen to expressive activity shall not be permitted and shall be subject to sanction.” Similar legislation is being promoted by conservative think tanks. “Expressive activity” is obviously vague and overly broad — so does this language protect protest? Society must be vigilant against such one-sided legislation to consider whose speech is really being protected.
Speech is not neutral. As one of my colleagues noted, neutrality “continues to be the position of the dominant,” as it “ignores the entire history of racism, sexism and homophobia in this country.”
Christina Berchini, who teaches at the University of Wisconsin-Eau Claire, challenged the idea of political neutrality, as she said, “I teach about white supremacy. How, exactly, does one handle such topics in a neutral way?”
Many of these new policy documents in fact insulate white students’ racist speech from protest. Instead, such policies must ensure that there is opportunity for counter-speech and that protesters as well as speakers are equally protected.
How should universities respond? There are no easy answers. The only bright line is that threats or incitement to violence are not constitutionally protected. As many universities, including the University of Denver, are adopting freedom-of-expression policies, they must be specially attentive to the power relations that permeate our lives.