‘A Nation That Does Not Educate in Liberty Will Not Long Preserve It.’
July 28, 2009
by Tim Nuccio
Greg Lukianoff, FIRE's President, has devoted many of his speeches to a concept that he calls "unlearning liberty," a process by which students learn to live under and even embrace censorship—even becoming censors of their own peers. Greg believes that this process is partially responsible for students' acceptance of oppressive speech codes at the college level. Simply put, students have little understanding of what free speech involves or why it is useful, and therefore fail to see the serious problems associated with an environment that does not protect expressive conduct.
Why is this happening on our campuses? Attempting to answer this question, I, along with a colleague, examined the data from a study by the John S. and James L. Knight Foundation that asked sixty-three questions about the First Amendment to 112,003 high school students—quite a large sample.
Before we began examining the polling data, we hypothesized that, consistent with Greg's "unlearning liberty" idea, students would place a higher value on expression in which they were likely to engage. We also predicted that Greg's conclusion—that students who spend their entire lifetime "unlearning" the ideas of freedom will therefore be willing to see their fellows punished even for constitutionally protected expressive conduct—would be confirmed.
On examination, the data did indeed support the hypothesis that high school students are more likely to support protection for acts that they themselves either engage in or would recognize as socially acceptable. Questions forty-three and fifty, which deal with flag burning or defacing the flag as a means of political protest, are an excellent example. While flag burning has been a historically difficult First Amendment issue, the fact that a large majority of students strongly think it should be banned outright tends to indicate that students are less concerned about the ideal of broad protection for all expression than they are about their personal feelings about the content of that expression. Seventy-five percent of students were unaware that Americans have the right to burn the flag as a political protest, while sixty-three percent "strongly disagree[d]" that "People should be allowed to burn or deface the American flag as a political statement" (emphasis added).
This is especially noteworthy considering that, as Noah noted several weeks ago, a majority (nearly sixty percent, in fact) of students responded that they have "...taken classes in high school that dealt with the First Amendment." The study did not ask students whether this was simply a passing mention or an entire class dedicated to topics regarding the First Amendment. Either way, while the First Amendment is not foreign to most students, they still tend to show a lack of real understanding of the purpose and reach of its protection. Indeed, over a third of the students polled think that the First Amendment "goes too far" (question forty) in the rights that it protects, while less than half disagreed with that statement and just one in four "strongly disagree[d]." The responses to this question provide evidence of a lifetime of "unlearning liberty" that must be remedied if the First Amendment is to enjoy the support that it has traditionally had among the vast majority of Americans.
Students were also asked whether unpopular opinions "should be allowed." An overwhelming majority (eighty-three percent) stated that they should. This reflects FIRE's experience that the philosophical idea of free expression has universal appeal, especially when the hypothetical only requires consideration of an expansive concept like "unpopular opinions." But more specific questions asking whether a racially charged satire constituted free speech, whether a professor's explanation of a racial epithet is protected, or if reading a book with burning crosses on its cover can be prohibited by literally "judging a book by its cover" would almost certainly not reach the same result. I draw this conclusion based on responses for the survey, with students expressing support for liberty when it comes to issues like music (question forty-four) or the student press, while they express opposition to liberty when polled about other issues like flag burning or "indecent" material on the Internet (question fifty-two).
This is important because unpopular speech is precisely what the First Amendment is intended to protect. For instance, two different cases dealing with flag burning found that neither states nor the federal government could constitutionally restrict flag defacement as part of a political protest (Texas v. Johnson and United States v. Eichman). And while no court has ever declared government regulation of "indecent" Internet content per se unconstitutional, the First Amendment's broad protection has resulted in two federal statutes' invalidation. Congress' first attempt to regulate indecency on the Internet, the Communications Decency Act of 1996, was struck down unanimously in Reno v. ACLU, 521 U.S. 844 (1997). Their second attempt, the Child Online Protection Act (passed in 1998 in response to the Reno opinion) failed after eleven years of litigation in ACLU v. Mukasey, 534 F.3d 181 (3d Cir. 2008), and the Supreme Court denied certiorari in this case on January 21, 2009. Indeed, Congress has yet to find a manner to regulate indecent content on the Internet that will survive a First Amendment challenge, and may never do so.
Considering the respective percentages, many students who responded that flag burning was not protected nonetheless say they favor protection for speech that is "unpopular." Further examination of the raw data could presumably uncover the correlation coefficient between those who believe flag burning is protected and those who support protection for unpopular opinions. Examining this correlation might allow future studies to find where the disconnect exists between difficult topics like flag desecration and the broader philosophical concept of protection for unpopular speech. Better teaching of First Amendment history may help students connect specific controversial issues with their general and laudable wish to defend "unpopular" speech.
Unlearning liberty is not just an isolated occurrence, but rather a systemic part of our educational process. While our education system has apparently managed at least to mention the First Amendment to the majority of students, an insufficient number appear to possess even a rudimentary understanding of how a society with free expression functions. This is supported not just by students' responses on issues regarding protected expressive conduct but also by the large proportion who responded "don't know" to many of the questions.
Students need to be educated about the meaning of the First Amendment at the high school level—college is too late. After all, many do not attend college, or may go on to technical school, where the concept of a broad liberal arts education either does not exist or is limited in scope. Among the most important purposes of comprehensive public education in our republic is to create more informed voters, which necessitates broad education about the political process. Our society must seize this opportunity in the interest of preserving our democratic process.