Standing Up for Free Speech on Campus

Erwin Chemerinsky is a left-of-center legal scholar and prolific author who is now Dean of the University of California’s Berkeley School of Law, formerly known as Boalt Hall (named after a prominent 19th century attorney, John Henry Boalt, whose widow funded construction of the school’s initial building over a century ago).  Berkeley’s law school was re-named—before Chemerinsky became Dean on July 1 , 2017—in part due to sensitivity regarding its namesake’s opposition to Chinese immigration and advocacy of the 1882 Chinese Exclusion Act. I raise this because the issue of heightened “sensitivity”—frequently resulting in the removal or re-naming of historical memorials—currently roils higher education in a number of ways, including the suppression on campus of viewpoints considered to be objectionable

Colleges and universities, once champions of free speech, are increasingly banning speech (and speakers) deemed offensive to the prevailing orthodoxy of identity politics—dressed up in the euphemisms of “diversity” and “inclusion.” Many university administrators feel justified in blocking “hate speech,” and across the nation violent demonstrators have exercised the “heckler’s veto” to shut down presentations by Ben Shapiro, Charles Murray, Ann Coulter, Heather Mac Donald, Milo Yiannopoulos, and other conservative speakers. In his latest book, Free Speech on Campus, Chemerinsky and co-author Howard Gilman (Chancellor at UC-Irvine) courageously enter this fray—as civil libertarians in defense of free speech.

I have been harshly critical of Chemerinsky in the past, but here I admire his advocacy of an even-handed application of the First Amendment. In his book, and a provocative recent essay in Vox, Chemerinsky unapologetically defends the protection of what many lazy academics term “hate speech,” despite disagreement by some of his liberal colleagues, such as Robert C. Post, formerly Dean of Yale Law School. In the present climate of politically-correct “sensitivity”—complete with “safe spaces,” campus speech codes, and “bias response teams” —Chemerinsky could have toed the line, or remained silent, but instead he chose to use the disturbing trend toward intolerance in higher education as a “teaching moment.”

Chemerinsky is concerned that a substantial majority of college students support restrictions on speech that is considered racist, sexist, homophobic, or otherwise offensive. Free Speech on Campus is ultimately directed at the current generation of students, who appear to have little understanding or appreciation of the history of free speech in the United States. With chapter headings such as “The New Censorship,” Chemerinsky points out that a robust interpretation of the First Amendment has in the past protected vulnerable political minorities and facilitated important social reforms. And recalling the origins of the modern university (Nullius in verba, or “take nobody’s word for it”), Chemerinsky argues persuasively that an open exchange of ideas is essential for free thought and intellectual progress. Moreover, Chemerinsky convincingly explains why freedom of speech is essential to democratic self-government.

The book offers concise lessons about prior battles in this area, including the prosecution of comedian Lenny Bruce for obscenity and the Berkeley Free Speech Movement in the 1960s, observing that “Each generation brings new calls to suppress speech, for reasons that appear noble at the time.”  To his credit, Chemerinsky devotes an entire chapter to the most controversial—and misunderstood—aspect of freedom of expression on campus: so-called hate speech.  Free Speech on Campus concludes that “speech cannot and should not be prohibited for expressing hate,” with a useful primer on the Supreme Court’s relevant precedents.  Unfortunately, the book was not able to include the Court’s 2017 decision in Matel v. Tam, [1] in which the Court unanimously held that derogatory ethnic slurs—such as referring to Asians as “slants”—are protected by the First Amendment.

In short, Chemerinsky believes that free speech should be protected on campus to the same extent it is protected off-campus, and urges private schools to follow suit, on policy grounds, even though they are not subject to the First Amendment. My only “nit” with Free Speech on Campus is that Chemerinsky includes “harassment” among the short list of exceptions to free speech protection—along with true threats, destruction of property, disruptions of classes, and “time, place, and manner” restrictions. “Harassment” is a notoriously-slippery concept, developed primarily in the context of the workplace, and typically consisting mainly of conduct, not expression.

UCLA law professor Eugene Volokh has warned about the use of amorphous “harassment” proscriptions to suppress unpopular or offensive speech, and some courts [2] have recognized that the careless invocation of “harassment” would chill academic freedom and inhibit vigorous intellectual discourse. In the words of a Ninth Circuit panel, “Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal.” [3] The exception for “harassment,’ in short, needs to be treated with as much trepidation as Chemerinsky extends to the moribund doctrine of “fighting words.”

Free Speech on Campus concludes with a chapter entitled “What’s at Stake?” The authors state that

We wrote this book out of a concern that much of the current debate over the learning environment on college campuses gives insufficient attention to the values of free speech and academic freedom—the philosophical, moral, and practical arguments in support of these principles, the lessons of the historical record, and the current state of the law.

We should be grateful that they undertook this important task, producing a cogent brief in support of the embattled First Amendment. Chemerinsky ends on this thought-provoking note:

Promoting an inclusive culture of mutual respect, tolerating diverse and controversial views, and working through differences by way of conversation rather than intimidation are essential not only to higher education. They are also how free, diverse, democratic societies must behave if they are to remain free, diverse, and democratic. The generation now in college will soon be our society’s leaders. The stakes could not be higher as we help them understand why free speech matters, not just on campuses but in the world. If we expect them to fight for these values, we must teach them these values. (Emphasis added.)

In this era of creeping cultural Marxism, college campuses have aptly been described as “censorious echo chambers…intolerant of dissent.” Chemerinsky’s  book is an encouraging sign that some academics on the Left share the classical liberal ideal of freedom of thought and expression. I hope that many college-age readers heed the message of this important book.

[1] 582 U.S. ___, 137 S. Ct. 1744 (2017).

[2] E.g., Rodriguez v. Maricopa County Community College District, 605 F. 3d 703 (9th Cir. 2010).

[3] Id.