Free speech on campus is ‘essential for the free formation of public opinion’: A response to Robert Post

In a forthcoming book chapter entitled “The Classic First Amendment Tradition Under Stress: Free Speech and the University,” Yale Law professor Robert Post argues that Americans — including the justices of the U.S. Supreme Court — have lost sight of the original purpose of the First Amendment. According to Post:

The classic First Amendment tradition ... protected speech insofar as it was deemed necessary for the formation “of that public opinion which is the final source of government in a democratic state.” The corollary of this conceptual framework was that speech not deemed essential for the free formation of public opinion was not protected by the First Amendment. (Citations omitted).

To illustrate what he perceives as the problem with Americans’ current understanding of the First Amendment, Post turns to the topic of free speech on college campuses, writing that “[t]here is a hue and cry that First Amendment rights are at risk because universities  have failed to protect freedom of expression.” But according to Post, censorship on campus should not raise First Amendment concerns because “speech within universities...does not serve the purposes of self-government.”

Over the seventeen years that FIRE has been in existence, we have documented countless instances in which college students and faculty members have faced censorship and punishment for exercising their right to free expression, as protected either by the First Amendment or, in the case of most private universities, by university policy. I should note at this point that I disagree strongly with Post’s premise that the First Amendment should or does only protect speech that is necessary for the formation of public opinion, or that university curricula are devoid of such speech. Moreover, I do not think the government would be capable of identifying what speech falls into that category without suppressing minority views. But that is a more in-depth discussion for another day. For the purposes of this discussion, let’s accept Post’s premise that we should only be concerned with protecting speech that is “judged necessary for the formation of public opinion.”

If you look through FIRE’s case archives, you will see that much of the speech that is routinely censored and punished at universities is precisely that type of speech. There was the Catawba Valley Community College student who was banned from campus after protesting the college’s deal with a debit card company on Facebook. There is the Drexel University professor who has repeatedly faced investigation in recent months for controversial political tweets sent from his personal Twitter account. There is the Fordham University chapter of Students for Justice in Palestine, which has been denied recognition by the university explicitly on the basis of its political beliefs. There was the tenured professor at Mount St. Mary’s University who was fired after he criticized the new university president’s controversial freshman retention plan. There was the student group at San Francisco State University investigated for harassment and incivility for stepping on paper replicas of the Hamas and Hezbollah flags at a campus anti-terrorism rally. There was the Syracuse University law student investigated for harassment for running a blog satirizing life at the law school — and the Syracuse University education student expelled over comments he made on Facebook critical of a community activist who made racially charged comments at an event the student attended. There was the University of Missouri’s censorship of a student group’s t-shirts advocating for marijuana legalization. There were the Georgetown University law students prevented from campaigning for Bernie Sanders on campus due to the university’s ban on partisan political speech.  

Indeed, FIRE’s seventeen-year case archive is replete with examples, like these, of speech on core political and social issues that was censored because it offended someone or proved inconvenient to the university. But in arguing that “speech within universities cannot be governed by classic First Amendment doctrine,” Post does not acknowledge the widespread existence of this type of censorship, which FIRE exists to combat.

Rather, Post focuses first and foremost on classroom speech — something that almost everyone, including FIRE, agrees can and must be regulated in order for schools to be able to function as educational institutions.

Post notes that traditional First Amendment principles are not applicable to students’ classroom speech. For example, “content discrimination is rampant in all classrooms. Students must address the subject under class discussion rather than whatever happens to be on their minds.” He also points out that while “the First Amendment precludes the state from regulating public discourse by suppressing speech that is offensive or outrageous or abusive,” no professor “would permit a class to descend into name-calling and insults.” He makes similar points regarding professors’ classroom speech, noting that “If I am supposed to be teaching constitutional law, I can’t spend my classroom time talking about auto mechanics.”

There are, obviously, times when FIRE criticizes universities’ censorship of classroom speech, such as the increasingly frequent situation in which a professor gets accused of harassment for germane classroom expression. In these cases, FIRE points to the same principle — academic freedom — that Post acknowledges is essential to a university’s educational mission.

For example, in a letter to Howard University defending a law professor who was punished for the wording of an exam question, FIRE wrote that “Howard’s punishment of [professor] Robinson for this question ... is unacceptable under the university’s speech-protective academic freedom policy.”

Similarly, after a University of Colorado Boulder sociology professor was threatened with a harassment investigation over a lecture on prostitution as part of her “Deviance in U.S. Society” course, FIRE, the ACLU, and the National Coalition Against Censorship wrote in a joint letter that stated:

The university’s response to this situation, inappropriately raising the spectre of sexual harassment to attack and intimidate the professor, illustrates the need for vigilance in enforcing academic freedom, both to protect faculty and students’ right to inquire and discuss sensitive topics, and to prevent demeaning or distorting the serious problem of real harassment and abuse.

But the idea that FIRE, or any other free speech organization with which we are familiar, is arguing that professors do not have the right — indeed, the duty — to control their classrooms is simply false. In our 2005 Guide to First-Year Orientation and Thought Reform on Campus, for example, we have a section on “Professors’ Policies Limiting Classroom Discussion” in which we explicitly state that professors “may have ground rules to ensure civility and order” and may require students “to work with certain basic assumptions of the discipline” the professor is teaching, even if those assumptions contradict the student’s own beliefs.

And in 2008, FIRE’s Kelly Sarabyn wrote on our website that “In class, professors have great control over student speech and expression. If they so chose, they may prohibit all speech but their own. Students and teaching assistants who refuse to comply may be removed as disruptive. Graded assignments, similarly, are subject to speech restrictions. They are governed by standards of academic quality (and, of course, more subjective elements), which inherently limit many forms of expression (sloppy, profane, mystical, or unclear language, etc.).” Our opinion has not changed since then.

By focusing heavily on types of in-class speech — such as abusive speech, or speech that is not germane to the course material — that everyone would agree can be regulated, Post dramatically underestimates the threat that campus censorship poses to our national conversation. Even when he moves beyond classroom speech, he focuses on the issue of outside speakers, ignoring the fact that the overwhelming majority of campus censorship is of the students and faculty members who live, learn, and work on those campuses.

FIRE welcomes a discussion with professor Post about the appropriate boundaries of the First Amendment and academic freedom. But to have that discussion, rather than just talking past each other, we must begin from the same premise: that protecting speech on campus is not about protecting classroom boors and Holocaust-denying history professors, but rather about protecting the kinds of conversations that are at the absolute heart of our national debate.