Reviewing PEN America’s Campus Free Speech Report

On Monday, PEN America released “And Campus For All: Diversity, Inclusion, and Free Speech at U.S. Universities,” a thorough, thoughtful report on current tensions and challenges facing freedom of expression on our nation’s college campuses.

PEN America is the American affiliate of PEN International, a global advocacy organization dedicated to “unit[ing] writers and their allies to celebrate creative expression and defend the liberties that make it possible.” The report marks the group’s entry into the ongoing national dialogue regarding free speech principles and practices in higher education.

Having defended the expressive rights of students and faculty of diverse viewpoints and identities since our founding in 1999, FIRE is pleased to gain a powerful ally in PEN America. The group’s expansive report is even-handed and comprehensive, informed by careful research and an admirable commitment to documenting the concerns voiced by students, faculty, advocacy organizations, commentators, and citizens on differing sides of the discussion. Spurred to investigate “the apparent chasm that has opened up between student activists and free speech advocates,” PEN America’s report performs a commendable service by bringing divergent views to a shared table and facilitating a form of mediated dialogue.  

The report hails FIRE as doing “a valued job documenting, publicizing, and mobilizing to resist constraints on campus speech.” We appreciate the report’s recognition of our Spotlight database of campus speech codes, the successful settlements won by our Stand Up For Speech Litigation Project, and the activities of the FIRE Student Network. However, FIRE is initially described incorrectly as a “libertarian” organization, rather than the nonpartisan civil libertarian organization that we in fact are. And the report later states that “FIRE is often regarded as libertarian or conservative and is viewed suspiciously by some liberal or progressive students and faculty.”

This misperception is disappointing, given FIRE’s longstanding and indisputable record defending speech from across the political spectrum. (As I told Think Progress in January—in a piece that covers eight FIRE cases involving liberal viewpoints or speakers—I’ve long been frustrated by the fact that our successful advocacy on behalf of liberal or progressive students and faculty is not more widely recognized.) Regardless, FIRE will continue to do the work we’ve always done: educating all students about the importance of free speech and defending expressive rights regardless of viewpoint, ideology, or identity.

PEN America’s report is guided by the recognition that the vital work of protecting freedom of expression in higher education (and beyond) requires teaching today’s students about the transformative power of free speech for all. In the “Principles on Campus Free Speech” that conclude the report, PEN America identifies “the need and opportunity for expanded education on issues of free speech”:

Yet free expression has historically enjoyed support from advocates of a wide range of political viewpoints, and it should continue to do so. All groups supportive of free speech should redouble their efforts to ensure that campus free speech is a cause that animates students from across the political spectrum. … Free speech organizations of all political persuasions should direct energy toward campuses, positioning free expression as a value that transcends politics and ideology.

FIRE strongly agrees. Regardless of our personal viewpoints and commitments, free speech is of essential value to us all; it is necessary to each of us as a preservative of our rights, a tool for seeking truth, and a vehicle for discovery, both about ourselves and our world.

Many of the report’s findings and recommendations echo FIRE’s own positions.

Protests

For example, PEN America concludes that “[a]t times protests and forms of expression are treated as if they are incursions on free speech when in fact they are manifestations of free speech. … [P]rotest and outrage, however infelicitously or unfamiliarly it may be expressed, must also be protected as free speech.” Last November, with protests occurring on campuses nationwide, FIRE issued a statement committing to defend the expressive rights of campus protesters, including those calling for censorship or restrictions on speech:

Supporters of virtually every political and social position under the sun may be found on our campuses, and may be relied upon to zealously advocate for their interests. FIRE’s job, in turn, is to zealously advocate for the right of all students and faculty to peacefully participate in the marketplace of ideas, not to pick sides.

An unfortunate fact of many of this fall’s protests, however, is that the demands made by protesters frequently include calls for limitations on expression criticizing or disagreeing with the protesters and mandatory trainings that have the potential to veer into coercion. FIRE’s defense of the right to speak out extends even to those who use this right to call for the silencing of others. Students and faculty are free to call for censorship of views they do not share and the punishment of those who hold those views. If students or faculty peacefully calling for censorship were to be threatened with official punishment simply for making such a call, FIRE would defend their rights to free expression.

Of course, as we also made clear, FIRE opposes such calls, and we will work to prevent them from succeeding. But our belief in free speech “is the very reason that we believe that even those arguing against free expression should be free to do so,” and we stand ready to defend that right.

Dissent and Offense

PEN America’s report argues that “[w]hile some degree of caution and forethought in speech is healthy, college should be a place where ideas can range free, dissent is welcomed, and settled wisdom is reconsidered.” FIRE agrees. That’s why we’ve pushed for the widespread adoption of the University of Chicago’s statement on free speech, which “guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn.”

Likewise, PEN America posits that “[a] critical function of the university is to expose students to a diversity of viewpoints, including those with which some may vehemently disagree.” As we have long said here at FIRE, students who receive their degree without once being offended or having their beliefs challenged should ask for their money back.

Disinvitations and the Heckler’s Veto

The report is critical of disinvitations of outside speakers. In PEN America’s view—and FIRE’s—a university that rescinds an invitation “risks surrendering veto power to the loudest constituents, subverting its own decision-making procedures and limiting the range of ideas allowed on campus.” Again, we agree.

While recognizing that criticism of a chosen speaker is protected expression, FIRE has led the charge against “disinvitation season,” and we maintain a database of disinvitation attempts.

PEN America warns that “to avoid speakers who might generate any controversy at all would make graduations dull and render honorary degrees an affirmation of only the most obvious and uncomplicated accomplishments.” Last April, I told Inside Higher Ed much the same, saying that if ideas we don’t agree with are barred from campus, “what’s left are only the most inoffensive, and by extension most uninteresting, folks.”

The report argues that “protesters should not be permitted to shut down or shout down the speech, preventing others from hearing the speaker.” We agree, and we have made that argument time and again. Similarly, the report calls for answering controversial speakers with more speech, echoing FIRE President and CEO Greg Lukianoff’s recommendation that universities educate students “in how to engage in constructive protest and disagreement.”

PEN America is in agreement with FIRE in other areas, as well.

Safe Spaces

Regarding the hotly debated concept of “safe spaces,” the report cites freedom of assembly and posits that any such area or arrangement “should be entered into voluntarily by students wishing to associate with a certain group, not created or imposed to exclude unwelcome views.” That formulation mirrors FIRE’s view:

Safe spaces present a problem for free expression on campus when they are used as a sword rather than a shield by those attempting to control what others may say in public spaces and forums. So while students can certainly create “safe spaces” by choosing to voluntarily associate around shared beliefs and interests, they cannot dictate that a shared space, such as a residence hall, conform to these qualities.

Microaggressions

Likewise, in considering “microaggressions,” PEN America concludes that campus policies “regulating everyday speech at this level, or attempting to define such insults for the entire university community, are intrusive and run the risk of prohibiting or even simply disfavoring permissible speech.” FIRE agrees. As Greg wrote for The Huffington Post, policing microaggressions results in “a chilling of ordinary personal interaction that stifles intellectual debate, creates a war on candor, and leaves students and faculty talking on metaphorical eggshells.”

Trigger Warnings

With regard to “trigger warnings,” PEN America argues that institutions are best advised to “leave the question of trigger warnings or any other sort of alerts about course material up to individual faculty members.” Again, FIRE agrees. As we warned Crafton Hills College in a 2015 letter, colleges should “disavow future mandates of such content warnings on course syllabi and make clear that discretion over such academic decisions will remain where it belongs—with the faculty.”

Artistic Expression and Satire

Observing that “[s]ome forms of expression, such as theater, stand-up comedy, and political polemics, depend on a degree of provocation for their effectiveness,” PEN America believes that “it is essential to ensure that satire and humor do not disappear from campus.” Once more, FIRE agrees, and we have fought for years to protect satirical and provocative campus publications, performances, and other artistic expression. Some of our most memorable efforts on this front are featured in Can We Take a Joke?, a FIRE-supported documentary released earlier this year.

Title IX Interpretation and Enforcement

Perhaps the most important agreement concerns the threat to free expression presented by the federal Department of Education’s Office for Civil Rights (OCR) and its interpretation and enforcement of Title IX.

Joined by other civil liberties organizations and academic groups, FIRE has warned for years about the harm to campus speech inflicted by OCR’s overbroad definition of sexual harassment. Our warnings have been depressingly proven prescient in ordeals like those suffered by Professor Laura Kipnis, which the PEN America report examines in detail, and Professor Teresa Buchanan, which precipitated the filing of a First Amendment lawsuit sponsored by FIRE.

The PEN America report calls on the Departments of Education and Justice to “urgently attend” to the risks that OCR’s current Title IX interpretation poses to “free expression, academic freedom, and the role of universities” by “implementing essential reforms that affirm the role of freedom of expression in Title IX enforcement.” FIRE strongly agrees.

“Crisis”?

I urge reading the report in full. In fact, reading the actual report (or, at the least, the Principles on Campus Free Speech contained therein) is especially important given that some of the reaction the report has generated thus far focuses on just one line: “PEN America’s view, as of October 2016, is that while the current controversies merit attention and there have been some troubling incidences of speech curtailed, there is not, as some accounts have suggested, a pervasive ‘crisis’ for free speech on campus.”

It would be deeply unfortunate if this usefully nuanced and thorough report were to be ignored by potential readers who preemptively (and mistakenly) conclude that its most noteworthy contribution is that PEN America doesn’t think a “crisis” exists.

If discussion of the report focuses solely on whether the word “crisis” is appropriate, the more important, larger points PEN America makes throughout the report’s 70 pages of text have been missed.

As the organization writes, free speech on campus “is not free from threats, and must be vigilantly guarded if its continued strength is to be assured.” This is correct. And as FIRE’s work fighting restrictions on campus speech—present both in pervasive university speech codes and in individual cases of censorship—makes all too clear, threats to campus speech and academic freedom are not new. They have existed in various forms for at least the last 17 years, since FIRE’s founding in 1999. Longer still if one considers the controversies documented in The Shadow University, written by FIRE co-founders Harvey Silverglate and Alan Charles Kors; even longer if one considers the seminal cases governing First Amendment rights on campus, including the long string of courtroom defeats for speech codes beginning with 1989’s Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989), and dating back more than a half-century to the U.S. Supreme Court’s 1957 decision in Sweezy v. New Hampshire 354 U.S. 234 (1957); and even longer if one considers the concerns about academic freedom that spurred the founding of the American Association of University Professors in 1915.

The threats to campus free speech change and evolve over time. The report identifies the “urgent task” facing free speech advocates like FIRE and PEN America today as “articulat[ing] how to reconcile unfettered expression with acute demands for greater equality and inclusion and, indeed, how both goals are mutually complementary and reinforcing.”

We share PEN America’s concern about free speech becoming a casualty of the culture wars and about a new generation of students viewing free speech as “an ossified, irrelevant, even inimical concept,” useful only to “buttress existing hierarchies of wealth and power.” Indeed, much of our internal discussion and our external outreach these days centers on how best to empower students with knowledge of their expressive rights.

But regardless of whether the illiberal tenor of the current campus climate is deemed a “crisis,” the report details serious problems. As Wendy Kaminer has warned, “reliance on subjectivity, in the interest of equality, is a recipe for arbitrary, discriminatory enforcement practices, with far-reaching effects on individual liberty.” Under this ill-conceived understanding of rights, Kaminer concludes that “censorship looks like a moral necessity.” Teaching students these intellectual, social, and political habits threatens to redound to our democracy’s lasting detriment. Students accustomed to the illusory “protection” of speech codes on campus may well demand similar restrictions in the public sphere in years to come.

The central lesson of PEN America’s report is that free speech needs active, focused protection—and that means hard work. Students—all students—need to be taught free speech’s value and afforded its full use. Faculty need to be secure in their rights to free speech and academic freedom. Administrators, alumni, commentators, government actors, watchdog organizations like FIRE, and advocacy organizations like PEN America must ensure that universities fulfill their missions (and moral and legal obligations) by recognizing and respecting these rights.

Whether or not PEN America deems the extensive threats to free speech on campus a “crisis,” the organization believes, like FIRE, that serious problems exist and that there is important work to be done. PEN America’s report performs a valuable service by thoroughly presenting the problems’ contours and offering thoughtful, well-informed recommendations about how to solve them.