There is nothing natural about tolerating the views of others. If someone stands, as today’s righteous say, on “the wrong side of history,” why refrain from shutting him up? Yes, Justice Holmes warned against “attempts to check the expression of opinions that we loathe and believe to be fraught with death.” But it is a wonder that this dissenting view became conventional American wisdom. It is a wonder, too, that as a young man and proud Jew I was taught to think that neo-Nazis should be permitted to march on a public street in a predominantly Jewish neighborhood in the United States. One can reject this teaching. One cannot deny that it is remarkable and fragile.
In Free Speech on Campus, Erwin Chemerinsky, dean and professor of law at the University of California, Berkeley School of Law, and Howard Gillman, chancellor and professor of law at UC Irvine, recognize that “tolerance of views considered wrongheaded or dangerous is not a natural condition.” They worry that recent campus protests, which include calls to punish offensive speech, ask us to choose between protecting freedom of expression and protecting “the learning experience of students, especially minority students.” They worry, with good reason, that students will choose against freedom of expression.
In 2015, the University of Oklahoma expelled two students for leading a racist chant. In so doing, the university probably violated the First Amendment. But when Chemerinsky and Gillman described this incident on the first day of a seminar they were co-teaching, their students sure didn’t believe any constitutionally protected rights had been violated. Not one thought that the First Amendment protects racist speech. As their class sided week after week with “punishing offensive speech,” Chemerinsky and Gillman concluded that the problem was not a misunderstanding of the law. Rather, their students had a heartfelt “urge to protect others” from discrimination, but only an abstract sense of why one might tolerate offensive speech. The “pro-free speech case needs to be made anew,” with special attention to how it is compatible with the fight against unjust discrimination.
Chemerinsky and Gillman agree with the student protesters who believe that this fight is urgent, while disagreeing with them on the substance. The professors take as their thesis “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.” Campuses “can and should take” steps to be more “inclusive.” They should, for example, “try to sensitize their communities to the kinds of words and statements that might be unintentionally offensive.” But they must not censor or punish even expressions of hatred.
In arguing for this position, Chemerinsky and Gillman do not try to innovate. But when not only students but also faculty members and administrators support speaker bans and speech codes, old arguments need rehearsing. Freedom of thought is compromised when opinions can be kept from us. Democracy is compromised when citizens can be prevented from sharing what they think and know.
Yet, the authors note, “most democratic nations prohibit hate speech” without descending into tyranny—so why not prohibit hate speech on campus? Chemerinsky and Gillman helpfully address the most influential arguments for hate-speech bans. The authors grant that speech can do psychological damage, that it can be deployed to demoralize minority populations, and that even speech free of malice, when grounded in prejudice, can burden students. It is therefore tempting to prohibit, at a minimum, hate speech. Their response breaks no new ground but is still good: There is “no evidence” that hate speech prohibitions lessen discrimination. The recent history of campus speech codes suggests that they will often be used against those they are intended to protect, and that they cannot avoid the risk of suppressing merely unpopular ideas. Finally, left-liberal students need to understand how “important free speech [has] been to vulnerable political minorities” in causes like the civil rights and antiwar movements and in “efforts of historically marginalized people to challenge convention.”
Another virtue of Free Speech on Campus is its attentiveness to the history and importance of freedom of speech and thought in higher education. The courts, Chemerinsky and Gillman think, have been wise to recognize the unique role universities play in our democracy, as homes for the unrestricted pursuit of truth. Academic freedom is essential to that pursuit, and so the courts have considered it, as Justice Brennan put it a half-century ago, “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” Universities, with few exceptions, have adopted the courts’ understanding of their role. So, Chemerinsky and Gillman argue, even private institutions not bound by the First Amendment should insist that “free speech principles . . . require even stronger protections in academic settings” than they do elsewhere.
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If Free Speech on Campus is less a work of original scholarship than a reminder, John Palfrey’s Safe Spaces, Brave Spaces shows, alas, why such a reminder is needed. Palfrey, now head of school at Phillips Academy, Andover, but formerly a professor and vice dean at Harvard Law, knows universities. But unlike Chemerinsky and Gillman, he betrays little loyalty to the university as uniquely devoted to free inquiry. The University of Chicago’s “full-throated support for free expression” is fine, but other institutions—Palfrey gives the example of Catholic and Jewish universities—might choose to put other priorities first. So universities devoted to social justice might choose to restrict speech more than the University of Chicago does.
In stark contrast to Chemerinsky and Gillman, Palfrey wants to make full use of the fact that “by and large, private institutions are not bound by the First Amendment.” Indeed, if Palfrey had his way, the law would allow even public universities to shut out “the most hateful speech,” since
Concerning Nazi marches, Palfrey opines that although the residents of Skokie may have to suck it up and tolerate them, an academic community need not. Nowhere does he explain why college students, surrounded by professional educators in a community supposedly more devoted to free thought than the wider community, merit more protection from distressing displays than that wider community does. And while Palfrey sometimes mentions the kinds of arguments Chemerinsky and Gillman make, he never explains why his are better. For example, Palfrey knows that those “arguing for stronger speech codes during the Obama administration may be thinking twice” about it under President Trump. But he does not take seriously the argument that one cannot prohibit “the most hateful speech” in such a way as to save speech one does not think hateful. What response can Palfrey give to a university that forbids a pro-choice demonstration because some students think abortion is murder? The only honest one I can think of is “I reckon you’ve got me.”
Palfrey, like Chemerinsky and Gillman, wants the case for free speech to address the priorities of campus protesters. But he doesn’t grasp those priorities. Consider the very title of his book, which calls for universities to have some “safe spaces” and some “brave spaces.” Contrary to Palfrey’s usage, “safe spaces” are not just places, like “the locker room of a sports team that a student plays on,” where one feels at home. “Safe spaces,” as conceived by their proponents, would not be needed by women if the outside world were not deeply hostile to them. Black students would not need them if the outside world were not characterized by “systemic racism” (a term Palfrey blithely uses). A systemically racist society, as opposed to a society in which racism is a fading anomaly, is infected at its core; where a liberal society is systemically racist, liberal principles, including the freedom of speech, are called into question.
“Brave spaces,” meanwhile, are not, as Palfrey’s use implies, places to “search for the truth.” Rather, social justice educators have noticed that the “privileged” use the idea of safe spaces to shield themselves from discomfort-inducing criticism. As Brian Arao and Kristi Clemens, whose work is frequently used to explain “brave spaces,” put it, “the pervasive nature of systemic and institutionalized oppression precludes the creation of safety in a dialogue situated, as it must be, within said system.” Brave spaces are less about the pursuit of truth than about the pursuit of justice through the dismantling, albeit in speech, of a presumptively oppressive order.
Palfrey is free to invent novel uses for these terms. But by barely acknowledging their typical uses, he masks the deep disjunction between the social justice and diversity teachings that inform the protesters and the principles that underlie the case for free speech.
Even Chemerinsky and Gillman neglect this disjunction. Consider their recommendation that universities should “sensitize” everybody on campus to language that “might be unintentionally offensive.” That advice must be evaluated in the context of the movement to include statements like “America is a land of opportunity” among those that might inflict harm. Such statements are “microaggressions” because they deny that oppression is systemic. But from that standpoint, the argument for free speech—including the suggestion that we can achieve progress through, rather than against, American liberalism—also denies the unfathomable depths of American injustice and therefore is part of the problem.
That argument may not dominate our campuses, but it is certainly powerful on them and likely to grow more powerful as old-school liberals like Chemerinsky and Gillman retire. Defenders of free speech on campus must confront it directly.
Jonathan Marks is a professor of politics at Ursinus College.
