Chemerinsky and Gillman create free speech checklist for college administrators

Last week, Erwin Chemerinsky and Howard Gillman—the dean of the University of California, Berkeley School of Law and the chancellor of the University of California, Irvine, respectively—issued a short free speech checklist for college administrators. Although the list is intended to help college administrators navigate the contours of the First Amendment, it also serves as a practical guide for everyone on protecting important First Amendment principles on campus.

Students returning to college and university campuses this fall will likely encounter many controversial speakers and vigorous debate reflecting the current national discussion on race in the wake of Charlottesville. Chemerinsky and Gillman offer five tips to help navigate the challenging year, and perhaps years, to come without compromising the right to free speech. Each checklist item is summarized by its first line:

1. Disseminate a clear statement of free-speech values and create opportunities to teach the campus community about free speech.
   

2. Publish a clear statement supporting the presence of controversial speakers before particular incidents occur.

3. Devise and publicize transparent and neutral procedures for approving events. Campuses typically require advance permission for use of their facilities.

4. Ensure everyone’s safety.

5. Put in place rules that prohibit disrupting the speech of others during authorized campus events—with disciplinary measures when appropriate.

Notably, Chemerinsky and Gillman express the sentiment that this tumultuous climate “create[s] opportunities to teach the campus community about free speech.” The authors further encourage administrators to clearly communicate their support for free expression, regardless of the viewpoint. FIRE wholeheartedly agrees. As we have previously stated, times of turmoil both on campus and across our nation are precisely the times when free expression is most necessary.

In the forefront of most administrators’ minds this fall will be the safety of students and others on campus, especially with violent events at the University of California, Berkeley, Middlebury College, and Claremont McKenna College in such recent memory. While campuses must not ignore safety concerns, they must take measures to promote safety that are compatible with their legal and moral obligations to protect free speech. To strike this balance, Chemerinsky and Gillman prescribe healthy doses of planning and open communication to ensure the safety of students and others when controversial events take place on campus. They write: “[c]ampuses need to prepare security assessments that ensure adequate protection for controversial speakers and their audiences. A campus might insist on venues that make it easier to prevent protesters from blocking access to the event, and it might require tickets or university identification to minimize the chances of disruption.” These extra logistical steps ensure the audience’s right to listen while preserving everyone’s safety.

Along with planning and open communication, Chemerinsky and Gillman urge administrators to adopt free speech education and programming during orientation. Newsdesk readers may remember Purdue’s successful implementation of such a program at its orientation last year. Educating students about the First Amendment could help students more effectively respond to speech with which they disagree—within the bounds of the law.

As mentioned previously, freedom of speech is not absolute. Chemerinsky and Gillman carefully note several exceptions to freedom of speech—heckler’s vetoes, harassment, and true threats, for example, are not protected forms of speech. These exceptions, however, are very narrow and do not change the fact that the overwhelming majority of speech is protected by the First Amendment.

Additionally, Chemerinsky and Gillman wisely advise administrators to endorse the presence of all speakers, but not necessarily to endorse the viewpoint of each invited speaker. Checklist item #2 instructs:

2. Publish a clear statement supporting the presence of controversial speakers before particular incidents occur. Speakers should never be excluded because of their views, but campus officials also need to explain that it is completely appropriate, and indeed desirable, for students and faculty to express disagreement with speakers they find objectionable. There can be nondisruptive protests at events, statements of objection through the media, and counter-events that highlight different messages. As the old saying goes, the answer to speech we don’t like is more speech.

Chemerinsky and Gillman encourage students and faculty to actively engage the controversial speech, which leads to an important discourse on campus, part of a university’s “core purpose.” Indeed, this discourse is vital to the core purpose of a university: to be a bastion of free and open inquiry.

FIRE is pleased to see such a succinct and helpful guide released just in time for the start of a new academic year. We recommend reading the full checklist.