FAN 167 (First Amendment News) SPECIAL ISSUE: Robert Post’s Arguments Draw Replies from Erwin Chemerinsky & Will Creeley on Campus Speech Issue

(Credit: Evelyn Hockstein/ for The Washington Post)

This entire FAN post is devoted to recent developments concerning free speech on college campuses. This sampling reveals just how controversial and widespread this debate has become.

Last week I blogged on the campus speech debate as it played out with the Virginia ACLU and its response to the William and Mary controversy (Deleted Passages: VA ACLU abandons key portions of its original statement regarding William & Mary controversy. See also Walter Olson, The ACLU Yields to the Heckler’s Veto, WSJ, Oct. 24, 2017)

As evidenced by the several entries below, the campus speech issue continues to be the First Amendment issue of our times.

Just out: Post-Chemerinsky Exchange

Professors Robert Post and Erwin Chemerinsky exchange views on the topic of campus speech, this in just published Vox posts. Here are a few snippets from that exchange:

POST: “The language and structure of First Amendment rights . . . is a misguided way to conceptualize the complex and subtle processes that make such education possible. First Amendment rights were developed and defined in order to protect the political life of the nation. But life within universities is not a mirror of that life.”

“. . . [M]embers of the university community do not enjoy special freedoms. They have the right to academic freedom, not First Amendment freedom of speech. Academic freedom is defined in terms of the twin missions of the university; it encompasses freedom of research and freedom of teaching. Academic freedom does not entail the equality of ideas. To the contrary, it is defined as the freedom  to engage in professionally competent teaching and research.”

CHEMERINSKY: “Professor Post’s premise is undoubtedly correct: universities must evaluate the content of faculty and student work. But it does not follow that outside of this realm, free speech principles do not apply on campus. It is a logical fallacy to say that because basic free speech principles sometimes do not apply on campus, they must never apply.”

  • “First, it is important to distinguish what the law is from what Professor Post thinks the law should be. . . .”
  • “Second, Professor Post ignores the distinction between the university’s ability to regulate speech in professional settings (such as in grading students’ papers or in evaluating teaching and scholarship) and its ability to regulate speech in other contexts. . . .”

 Related: Erwin Chemerinsky & Howard Gillman, Free Speech on Campus (Yale University Press, 2017)

Robert Post’s Article & Will Creeley’s Response 

Recall, that in an earlier FAN post I refenced a forthcoming article by Professor Post entitled The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University. Again, here is the abstract of that article:

Robert Post (Yale Daily News)

POST: This forthcoming chapter in a book to be edited by Lee Bollinger and Geoffrey Stone scrutinizes the frequently-heard claim that universities are suppressing the “First Amendment” rights of students, faculty, and invited speakers. The chapter argues that this claim rests on a fundamental misconception about the nature of First Amendment rights, which apply to public discourse and are designed to establish preconditions for democratic self-determination. Speech at universities, by contrast, must be regulated to attain the ends of education. Debates about the proper regulation of campus speech are thus ultimately debates about the nature of education, not about First Amendment rights. The overblown and misleading constitutional rhetoric of these debates is symptomatic of a larger debasement of our understanding of the nature of free speech protections, a debasement that could seriously undermine the strength of Free Speech principles when we actually need to call upon them to do serious work to protect the integrity of our political system.

I invited Will Creeley, Senior Vice President of Legal and Public Advocacy at FIRE, to respond to Professor Post’s article. That reply is set out below. Professor Post has been invited to respond. Should he accept, his response will be published in a future post.

WILL CREELEY, “Free Speech on Campus: A Response to Robert Post”

Will Creeley

In an essay for a forthcoming book edited by Lee Bollinger and Geoffrey Stone, Yale Law School professor and former dean Robert Post turns his attention to free speech on campus. Unsurprisingly, Post delivers his argument with characteristic erudition and acuity. Unfortunately, however, his contribution distorts the contours of the current debate by suggesting that my organization, the Foundation for Individual Rights in Education (FIRE), takes positions we do not in fact hold. Post’s misunderstanding of FIRE’s work requires a response.

Post argues that recent campus speech controversies illustrate “our modern failure to appreciate the fundamental purpose of the First Amendment” — that is, to “protect speech that serve[s] the purposes of self-government.” Because “public universities are not public parks,” and instead serve an educational mission, Post concludes that “it makes little sense to apply core First Amendment principles of freedom of speech to public universities.”

To make his point, Post enlists FIRE as a foil. He writes:

FIRE aggressively proclaims that First Amendment protections of free speech ought to apply within the domain of universities. The assumption is that First Amendment protections attach to speech, and speech occurs within universities. A moment’s reflection, however, reveals the superficiality of this logic.

“Consider, for example, speech within a classroom,” Post continues. “If I am teaching a class on the Constitution, my students cannot ramble on about the World Series.”

But to FIRE’s knowledge, nobody is arguing that they should be able to do so. Certainly, FIRE has never argued as much. Post does not cite any instance of FIRE (or any other organization) advocating that students should have such a right. FIRE has always recognized that professors have a right to control their classrooms. Academic freedom — that “special concern of the First Amendment” — demands it.

FIRE does not intervene in controversies involving in-class student speech. We do not take cases involving grade disputes, accusations of plagiarism, or other academic misconduct. Barring extraordinary circumstances — we have defended students who have been required by faculty to lobby for political positions outside of class, for example — we will not ever be involved in such cases. Post errs by suggesting otherwise, turning FIRE into a convenient strawman.

Post continues in this direction, attempting to show the incompatibility of the First Amendment and campus:

If I am supposed to be teaching constitutional law, I can’t spend my classroom time talking about auto mechanics. Universities also assess the quality of the ideas conveyed by professors. If a mathematics professor continuously gets her equations wrong, her competence will be called into question. Universities also compel professors to show up to class, to teach, and therefore to speak.

But again, to our knowledge, no one — not FIRE or other organizations, and certainly not courts — has suggested these examples are at odds with the First Amendment’s requirements, nor would any reasonable observer do so. In fact, the outcomes Post describes are in line with longstanding jurisprudence regarding the role of the First Amendment on public campuses. For example, like courts and the American Association of University Professors, FIRE believes that a faculty member’s in-class speech must be germane to the course’s subject, broadly construed, to earn the protection of the First Amendment and academic freedom. We acknowledge that if a professor isn’t actually teaching his or her class, he or she may be subject to discipline, though we think that such decisions are best left to his or her faculty peers.

Courts (and FIRE) have been more thoughtful about the First Amendment’s application on campus than Post acknowledges. Justice Powell’s statement in 1972’s Healy v. James is representative of the judicial approach, both then and now:

As the case involves delicate issues concerning the academic community, we approach our task with special caution, recognizing the mutual interest of students, faculty members, and administrators in an environment free from disruptive interference with the educational process. We also are mindful of the equally significant interest in the widest latitude for free expression and debate consonant with the maintenance of order.

And since the advent of forum analysis, courts have recognized the differences between the various areas of a college campus, noting the obvious distinctions between classrooms (a classic example of nonpublic fora), auditoriums or amphitheaters (designatated public fora), and open outdoor spaces and sidewalks (traditional public fora). See, e.g., Bowman v. White, 444 F.3d 967, 976-77 (8th Cir. 2006) (“A modern university contains a variety of fora…. labeling the campus as one single type of forum is an impossible, futile task.”) The judiciary has drawn these commonsense distinctions for years, but Post does not appear to acknowledge this well-established precedent.

Post’s argument is animated by his concern about applying the First Amendment “to ‘speech as such’ rather than to public discourse.” By invoking the First Amendment in controversies that concern only the quotidian “communication [that] inheres in all aspects of life,” Post worries that we are inviting a “predictable over-extension of First Amendment rights [that] will in the long run prove unsustainable.” In other words, when the speech at issue is not “essential for the free formation of public opinion,” the First Amendment need not apply.

Accordingly, because “public universities are not public parks,” Post concludes that “First Amendment doctrine does not help us resolve” campus speech controversies “because such doctrine derives from the requirements of public discourse within a heterogeneous nation.”

But the controversies in which we engage every day — FIRE’s bread and butter, wherein students and faculty engaging in public discourse outside of the classroom are subjected to censorship by the authorities or calls for such by their peers or the public — stem from analogous disputes between diverse members of a heterogenous campus. (This similarity in microcosm may partially explain the lasting public interest in campus speech controversies, and the way in which campus speech controversies sometimes prefigure or channel larger cultural disputes.) Given that we believe a core part of a public college’s educational mission is to facilitate the education of future leaders in democratic living, First Amendment doctrine is not only helpful in resolving these disputes, but essential.

If there is something “deeply wrong” about the First Amendment arguments that have helped protect student and faculty from censorship for decades, then FIRE will be happy to be as wrong as the courts that have crafted and credited them. If arguing for such is just “overblown rhetoric” — then, again, FIRE must simply disagree.

MORE ON CAMPUS FREE SPEECH ⇓

Viewpoint diversity on campus: A Heterodox Academy & FIRE panel discussion

“What can we do to break this cycle, to reduce the fear, and to help American universities return to their historic missions of education and research?”

That was the question presented by New York University ethics professor Jonathan Haidt at the start of an event at NYU yesterday on campus viewpoint diversity. The event was sponsored by Heterodox Academy, FIRE, and So to Speak: The Free Speech Podcast to address some fundamental questions about today’s academy, such as:

  • Is the modern college campus suffering from a decline in viewpoint diversity?
  • Do American universities prepare students for life in a politically divided democracy?
  • And does political orthodoxy reduce the quality of research, scholarship, and education?

Discussing these issues were Heterodox Academy members:

The event was moderated by FIRE Communications Director Nico Perrino and live streamed as So to Speak’s first-ever live event recording.

UC Berkeley Event on Free Speech on Campus

This from PEN America: “PEN America’s Executive Director Suzanne Nossel, Berkeley Law Dean Erwin Chemerinsky, Black Lives Matter activist DeRay Mckesson, Associated Students of the University of California (ASUC) Vice President of External Affairs Rigel Robinson, and ACLU of Northern California Executive Director Abdi Soltani as moderator as they navigate what it means for campus communities like Berkeley’s to continue to defend open expression amidst increases in hateful speech on campuses and across the country, polarizing media portrayals of campus incidents, the public reemergence of neo-Nazi and far-right hate groups, and rising security costs for on-campus events and speakers. . . .”

video here

UCLA Event on Free Speech on Campus

(credit: Christelle Snow / UCLA)

This from the UCLA Newsroom: “When it comes to free speech on college campuses, a panel of constitutional law experts, social scientists and a former longtime elected official had a difficult time even agreeing on the point of the argument, let alone agreeing on a solution that would satisfy the First Amendment’s strongest legal defenders and people who have been historically oppressed by the exercise of speech.”

“But that failure to reach consensus was kind of the point.”

“Presented by the UCLA Office of Equity, Diversity and Inclusion as part of UCLA Free Speech week, “Campus Speech: A right to speak? A duty to listen? An obligation to learn?” was intended to bring together different viewpoints and demonstrate how debate that traffics in the messy intersections of legal precision and systemic trauma and oppression can still occur within the bounds of civil discourse. . . .”

“Devon Carbado and fellow law professor Jerry Kang, who is UCLA’s vice chancellor of equity, diversity and inclusion, moderated the panel. Participants included:

  • Erwin Chemerinsky, dean of UC Berkeley’s law school;
  • Eugene Volokh, UCLA law professor;
  • Safiya Noble, assistant professor of communication at USC;
  • Gary Segura, dean of the UCLA Luskin School of Public Affairs; and
  • Zev Yaroslavsky, director of the Los Angeles Initiative at UCLA and former member of the Los Angeles County Board of Supervisors and the L.A. City Council.”

Dean Erwin Chemerinsky

On Campus Free Speech: Chemerinsky at CAL

Free Speech on Campus: A Discussion with Dean Erwin Chemerinsky, Oct. 10, 2017

In honor of Constitution Day, the Free Speech Movement Educational Programs Committee welcomed Dean of Berkeley Law Erwin Chemerinsky. In his new book, Free Speech on Campus, written with Howard Gillman, they argue that campuses must provide supportive learning environments for an increasingly diverse student body, but at the same time must never restrict the expression of ideas.

Campus Free Speech Issues in the News 

  1. Toni Airaksinen, Columbia students: Shouting down conservatives is ‘free speech’, Campus Reform, Oct. 23, 2017
  2. Alex Griswold, Columbia Professor: Speech From Right-Wing Politician Constituted ‘An Act of Violence’, The Washington Free Beacon, Oct. 23, 2017
  3. Editorial, Balancing safe spaces and free speech, Maine Campus, Oct. 23, 2017
  4. Abigail Hauslohner & Susan Svrluga, Free speech or hate speech? Campus debates over universities in a bind over First Amendment, Washington Post, Oct. 22, 2017
  5. Douglas Belkin, Fear of Violent Protests Raises Cost of Free Speech on Campus, Wall Street Journal, Oct. 22, 2017
  6. Sarah Jaffe, The Battle over Free Speech on Campus, Moyers & Company, Oct. 2017
  7. Katherine Timpf, Biden Is Right and Kasich Is Wrong on Campus Free Speech, National Review, Oct. 18, 2017

New Scholarship on Campus Free Speech 

  1. Jeremy Waldron, Heckle: To Disconcert with Questions, Challenges, or Gibes, SSRN, Oct. 17, 2017
  2. Ari Herbert, Can We Still Talk Things Out?: A Case Study of Campus Hate Speech Regulations at the University of Texas, Connecticut Public Interest Law Journal (forthcoming 2017)
  3. Heidi Kitrosser, Free Speech, Higher Education, and the PC NarrativeMinnesota Law Review (2017)

Recent YouTube Posts on Campus Free Speech 

Flashback: Bob O’Neil’s Book — It was 20 years ago this year

Robert O’Neil, Free Speech in the College Community (1997)

This is the first integrated discussion of the fascinating free speech issues that pertain to teachers and students. It is an unusually informative, vivid and balanced treatment and an absolute must read for all academics and students.Norman Dorsen

1997 Abstract: All of today’s “hot-button” issues are dealt with in this timely book, from Holocaust denial to claims of racial determination of intelligence to hate speech. Former college president Robert O’Neil dramatically illustrates the many types of problems that confront university administrators, frequently using representative fictional characters and discourse to present the situations. Free Speech in the College Community illustrates the many problems that now confront universities by questioning whether or not speech on campus should be freer than speech on the streets.

U.S.C.’s Student Non-Discrimination & Non-Harassment Policy Challenged in 4th Circuit

The case is Abbott v. Pastdies (Dist. Ct., S.C. July 11, 2017). In their brief the lawyers for Plaintiff-Appellants set out the case in these terms: “The University of South Carolina (‘USC’) maintains policies that function as a repressive speech code. The University’s overly broad prohibitions and restrictions on harassment and discrimination unlawfully define speech to be restricted, and USC has enforced this unlawful restriction by subjecting speakers to official inquiry that privileges censorship over free expression. In this case, the Appellees, officials at the University, sent a ‘Notice of Charge’ to the Appellants, Ross Abbott, the Young Americans for Liberty at the University of South Carolina (‘YAL’), and the College Libertarians at the University of South Carolina (‘College Libertarians’), not because they hurled epithets at other students or engaged in harassment, but because they held a school-approved Free Speech Event during which a few students were offended by materials of which USC officials had previously been made aware. Appellants tried to open a dialog with the campus community about the importance of free expression, but it resulted in a very different lesson – that you can get in trouble at USC for simply talking about free speech. The District Court erroneously concluded that neither Abbott nor the student groups have standing to challenge the policies under which they were investigated based on the non sequitur that the policies do not apply to them.” (emphasis in original)

Summary of Legal Arguments:

II.   USC’s Anti-Discrimination Policy (STAF 6.24) Violates the
First Amendment Because it Imposes Broadly-Worded and
Vague Restrictions on Protected Speech

A.   The District Court Erred in Holding Appellants Lack
Standing to Challenge STAF 6.24

  1. The Court Misconstrued Applicable Law
  2. Standing and Future Enforcement

B.  The First Amendment Requires Anti-Discrimination
Measures to Be Narrowly-Framed, Precisely Defined,
and Limited to Pervasive and Objectively-Offensive Harassment

C.  STAF 6.24 is Overly Broad, Vague, and Not Limited to Instances of Actual Discrimination

III.  USC’S Investigation of the Free Speech Event and
Preemptive Imposition of a Gag Order Chilled Appellants’
Speech and Violated the First Amendment

A.  Investigations Must Use the Least Restrictive Means

of Regulating Speech, Which Includes Screening Out
Frivolous Complaints

B.  USC’s Procedures Favor Complainants and Fail to Apply Non-Restrictive Means

C.  USC’s Investigation Directly Censored Speech, Chilled
Student Expression Generally, and Violated the First Amendment

→ Counsel for Plaintiffs-Appellants: Robert Corn-Revere, Ronald London, and Lisa B. Zycherman

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