On Campus Free Speech

Is it a goal in and of itself, or a tool toward other goals that universities are supposed to nurture? A debate.

By Erwin Chemerinsky Sigal Ben-Porath

Tagged freedom of speechHigher education

Much of the debate around the rights of students to protest and of universities to enforce rules of conduct has become repetitive and frustrating. The well-worn arguments over who ought to be platformed or deplatformed, who was canceled or allowed to foment hate, haven’t gotten us anywhere. We need a better conversation, one that illuminates the deeper issues underlying our daily screaming matches. So we recruited Erwin Chemerinsky and Sigal Ben-Porath—two longtime scholars of campus speech policies—to debate how students’ rights conflict with universities’ responsibilities, and in the process to shed some much-needed light on difficult questions.

The First Amendment Is Absolute. Period.

Erwin Chemerinsky

Above all, the First Amendment means that all ideas—even deeply offensive ones—can be expressed on a college campus. There are certainly views that we all hope never would be voiced, but the central premise of the First Amendment is that it is worse to give the government the power to outlaw particular ideas than it is to allow them to be voiced. As Chief Justice John Roberts declared in limiting tort liability for speech, “[S]peech cannot be restricted simply because it is upsetting or arouses contempt.” And as he continued, quoting an earlier Supreme Court decision, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

This commitment to free speech has been challenged in recent months by expression concerning the war between Israel and Hamas. Immediately after the October 7 terrorist attack by Hamas, Students for Justice in Palestine called the assault “a historic win for the Palestinian resistance.” A Columbia professor called the Hamas massacre “awesome” and a “stunning victory.” A Yale professor tweeted, “It’s been such an extraordinary day,” while calling Israel a “murderous, genocidal settler state.” A professor at the School of the Art Institute of Chicago posted a note on Instagram reading: “Israelis are pigs. Savages. Very very bad people. Irredeemable excrement…. May they all rot in hell.” A University of California, Davis professor wrote that “zionist journalists…have houses w addresses, kids in school” and noted, “[T]hey can fear their bosses, but they should fear us more,” before adding emojis of a knife, an axe, and three drops of blood. Although I find these statements deeply offensive, they are nonetheless speech protected by the First Amendment.

The Department of Education has said that the failure of a campus receiving federal funds to respond adequately to antisemitic or Islamophobic speech can be deemed a violation of Title VI of the 1964 Civil Rights Act. This law prevents recipients of federal funds from discriminating on the basis of race, which has been interpreted to include ethnicity and to require that schools not be deliberately indifferent to harassment. There is an obvious potential tension between the duty of schools to take action when speech constitutes harassment and the obligations of public universities under the First Amendment.

What does this mean for campuses at this moment in time? I see three important consequences.

First, the expression of anti-Israel, or pro-Israel, views are protected by the First Amendment. Although I find them deeply offensive, the statements by students and faculty celebrating the Hamas terrorist attack are constitutionally protected. Likewise, chants that seem to call for the end of Israel—such as “From the river to the sea, Palestine shall be free,” and “We don’t want no two-state, we want ‘48” (referring to returning to 1948 before Israel existed)—are speech that is safeguarded by the First Amendment.

The statements by students and faculty celebrating the Hamas terrorist attack are constitutionally protected.

Indeed, the Supreme Court has been clear that hate speech is protected by the First Amendment, and lower courts have consistently applied this to campuses. In the early 1990s, more than 350 colleges and universities, public and private, adopted hate speech codes. Every one that was challenged in court was declared unconstitutional.

Of course, the First Amendment applies only to public universities. But other sources of law apply free speech principles to private schools. Tenure protections and assurances of freedom of speech in faculty handbooks are contractual limits on the ability of schools to punish speech. Likewise, student handbooks, which have been interpreted by the courts to be contractual agreements between schools and students, often contain promises that speech will be protected. Also, both public and private schools are committed to academic freedom, which safeguards the ability of faculty to express their views without reprisal. The American Association of University Professors says that “Academic freedom is the freedom of a teacher or researcher in higher education to investigate and discuss the issues in his or her academic field, and to teach or publish findings without interference from political figures, boards of trustees, donors, or other entities.” At the very least, academic freedom—as a norm, if not a legal obligation—protects expression by faculty in their teaching and scholarship.

Second, campuses can enforce content-neutral time, place, and manner restrictions with regard to speech so long as they leave adequate alternative places for communication. Many schools, for example, have a rule against using sound amplification equipment on campus out of concern that the noise will disrupt classes and other university work. There is no doubt that such a rule is constitutional, as are those that prevent demonstrations near classroom buildings while classes are in session or in dormitories at nighttime.

Third, there is a point at which speech is unprotected by the First Amendment because it constitutes incitement, a true threat, or harassment. For incitement, it must be speech that is likely to cause and is directed at causing imminent illegal activity. For true threats, it must be speech that is reckless in that there is a conscious disregard of a substantial risk that the speech will be perceived as a threat of violence.

As for harassment, the official standard promulgated by the Department of Education in interpreting Title VI is that universities receiving federal funds must respond when the speech “is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the…education program or activity.” There is not a clear principle in the law for how to determine when speech is “so severe or pervasive” as to materially interfere with educational opportunities.

It is inherently difficult to draw lines as to when speech becomes incitement, a true threat, or harassment. A speaker expressing support for genocide, though reprehensible, is protected by the First Amendment. But an angry crowd surrounding a Jewish student walking across campus and calling for genocide of Jews should be found to engage in threats not protected by the First Amendment. Similarly, repeatedly yelling “death to the Jews” outside a kosher dining hall would be harassment and not constitutionally protected speech.

It must be remembered that there are many things campuses can do to respond to speech that constitutes harassment without necessarily punishing the expression. Campus officials can condemn antisemitic or Islamophobic speech. Campuses can have educational programs about the underlying issues and trainings for students and faculty about antisemitism and Islamophobia. Universities can ensure that speakers on all sides of an issue are invited to speak. Campuses can provide support for students, including mental health resources.

The most important point is that speech by students and faculty members should not be punished based on the idea expressed, even if the expression is deeply offensive. As the Supreme Court stated in its 1967 ruling in Keyishian v. Board of Regents: “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

There always is a temptation to censor and punish the speech we don’t like. It is especially important to resist that temptation in the context of colleges and universities. Higher education cannot perform its core missions of scholarship and teaching without freedom of speech.

The First Amendment Is a Tool. Learning Is the Goal.

Sigal Ben-Porath

Iappreciate the opportunity to think with Dean Chemerinsky on the pressing issue of campus speech today. This conversation began in 2017 when we both published books with the title Free Speech on Campus, and it has continued productively since. We have framed our approaches differently from the start: Chemerinsky, with his co-author Howard Gillman, provided a helpful and nuanced account of the legal boundaries of campus speech, as he does here in today’s context. I, on the other hand, have tried to look at the role that speech and its boundaries play in enabling a campus to realize its mission. I argued that the proper approach is one of “inclusive freedom”: the necessity of giving equal weight to the protection of free expression and to the inclusion of all members of the campus community in the free exchange of ideas. In today’s more polarized environment, I see the boundaries—and the protections—that we set for speech on campus not only as legal and educational tools, but also as part of our public service.

The First Amendment, academic freedom, and Title VI are all key tools for delineating the boundaries of campus speech. The clarity with which Chemerinsky describes them is valuable for all of us who have long cared, and worried, about open expression, as well as to those who newly find themselves mired in its complexities. They include limitations on threatening and harassing speech and on other illegal expression. But these can only get us so far. As the challenging examples from recent months illustrate, campuses are flashpoints of the struggle over acceptable speech. While Chemerinsky sees inflammatory speech such as general calls for genocide as an inescapable price we pay for freedom of speech, I see it as an opportunity for universities to assert their autonomy, and their moral leadership.

Universities have epistemic goals: They need to support faculty and students in developing, questioning, and disseminating knowledge. To do that most effectively, they need to create the preconditions for inclusion, so that all members of the campus community are able to share their knowledge, to question one another openly and freely, and to know that their contributions are given and taken in good faith. If faculty or other students consistently express bigoted views against a specific group, members of that group might refrain from speaking, to their and everyone’s detriment. The university needs to disavow these bigoted views even when they are protected, and might need to limit them or express an opposing view.

The struggle over campus speech ebbs and flows. In recent years, conservative actors have politicized campuses in a bid to reshape the public discussion about education, and about speech itself. Legal language and tools no longer suffice for setting the boundaries of expression, as evidenced by the fallout from the congressional hearing in December that featured three university presidents. The boundaries we set on campus are not only scrutinized, criticized, and litigated—they are also taken as a reflection of social and cultural values. As such they should be considered as not simply internal, administrative decisions, but also as part of our commitment to disseminating knowledge for the public good.

We need not idly allow calls for genocide to ring in our halls if we value inclusion.

Hence, the question that higher education institutions need to ask themselves today when they set their speech policies is not just “What does the law permit?” but also “How will my speech policies contribute to and reflect my educational and social mission?” That is especially the case at private institutions, which have greater degrees of freedom to set their own policies. Our decisions about the boundaries of speech and the practices surrounding civility, dialogue, and disagreement are not just ways in which we conduct ourselves. They are not just expectations we set for our students and other campus members. Nor are they simply applications of the law in our campus context. Rather, they are reflections of our moral stance, of our vision of knowledge, democracy, and discourse. They must reflect our mission as institutions of higher learning: at minimum, a commitment to a good-faith and open-minded shared search for truth, which can be supplemented by an institution’s specific mission to serve a given community or goal. That does not need to mean censorship, but it could mean rejecting views that run counter to institutional values. Inasmuch as we do not need to invite members of the Flat Earth Society to speak at our astronomy conference because we value the search for truth, we need not idly allow calls for genocide to ring in our halls if we value inclusion.

Some of the outrage that has engulfed a few private institutions, including the University of Pennsylvania, where I have worked for the past two decades, hints at shifting terrain. While some of the questions that the three university presidents faced at the congressional hearing were not raised in good faith, and while I see the question that turned viral—“Does calling for the genocide of Jews violate Harvard’s rules of bullying and harassment? Yes or no?”—as an intentional political tripwire, the answer still should have reflected the moral values espoused by the institutions (and by their presidents, too). The expectation is that calling for genocide, of Jews or others, should go against the code of conduct, even if that speech is protected by the Constitution and the laws that the outraged congressional representatives have vowed to uphold.

The three presidents’ equivocal responses caused so much anger and condemnation in part because of the outrage machine that the hearing was meant to activate, but importantly too because of the broader sense that the boundaries campuses set for permissible speech within their communities serve as guideposts for discourse beyond the college green. Leaders of higher education institutions, especially private ones, should heed the call to set a moral example and to clarify their expectations within the boundaries of the law. This does not have to mean changing their codes of conduct or taking a punitive approach, but it should mean taking a firm stance for creating the conditions where true dialogue can take place.

The boundaries we set should be stable in their reflection of our commitment to upholding the law and our mission, but they should also be responsive to our communities and their needs. When COVID-19 caused a surge in anti-Asian expression (and acts), many colleges were quick to respond—stating their rejection of anti-Asian hate, educating their communities about race and about the pandemic, and setting up talks, community circles, and other opportunities to (re)build knowledge and trust. Universities—at their best—helped their members learn what they needed to know to avoid bigoted assumptions. The current moment calls for similar learning opportunities about Israel and Palestine and, separately, about minority religions. Beyond remaining responsive to current events, universities must recognize that students are not fully prepared to join a robust and open conversation when they arrive on campus with limited training in engaging with diverse views or in detecting and rejecting misinformation. Universities must invite, and require, all students to learn the basic skills needed to act as educated members of a democratic, diverse society. This will both set the epistemic and moral boundaries for campus and serve as universities’ contribution to the broader discourse.

Erwin Chemerinsky Responds:

Should campuses prohibit and punish speech that is protected by the First Amendment if it is inconsistent with the educational environment they want to create? My answer would be an emphatic “No.” There are many ways to create inclusive campus communities, but they should not include restricting constitutionally protected speech. Public universities may not do so because of the First Amendment, and private universities should not do so because of their commitment to academic freedom and freedom of expression. But Professor Ben-Porath’s essay suggests such restrictions may be desirable.

At the outset, I should say that I am a tremendous admirer of Ben-Porath’s scholarship on the First Amendment and agree with much of her essay. I share her sense of the importance of educational institutions creating inclusive learning environments, and I agree with her that, at times, speech can be harmful to students and their education. I also agree that campus officials must act, including by condemning speech that is inconsistent with their educational mission.

But the hard question is whether the actions of campus officials should include punishing speech that is protected by the First Amendment if it is inimical to or undermines the educational mission of the campus. While I would say no, Ben-Porath is more equivocal. She writes, “The university needs to disavow these bigoted views even when they are protected, and might need to limit them or express an opposing view.” [emphasis added]

We agree that university officials should disavow the views she is referring to and express opposing ones. But it is where she says that the campus “might need to limit them” that I disagree. Ben-Porath writes, “While Chemerinsky sees inflammatory speech such as general calls for genocide as an inescapable price we pay for freedom of speech, I see it as an opportunity for universities to assert their autonomy, and their moral leadership.” Again, I agree about the importance of universities asserting their autonomy and moral leadership. But not if it involves, as Ben-Porath implies, punishing constitutionally protected speech.

Ben-Porath is correct, of course, that the First Amendment applies only to public universities. Private schools are not constrained by the Constitution and have more latitude to restrict speech. But that does not mean that they should do so. I believe that private schools should follow the same principles of freedom of expression that the First Amendment imposes on government institutions. In fact, in California they are required by law to do so: A state statute, the Leonard Law, provides that private schools cannot punish speech that public institutions cannot punish because of the First Amendment. Additionally, faculty and student handbooks at private schools, which courts have treated as contracts, often provide protection of free speech.

It is far too easy for those in power to decide that particular viewpoints should not be expressed.

Why protect speech that is inconsistent with a school’s educational mission? I certainly share Ben-Porath’s view that speech can cause grave harms on campuses. But I have great distrust of allowing those in power the ability to decide what ideas can and cannot be expressed. We need only remember the McCarthy era, when professors lost their jobs for the expression of ideas. There always is an impulse to suppress speech that is seen as undesirable, and it is far too easy at any moment in time for those in power to decide that particular viewpoints should not be expressed in their community. Apart from abuse of power is the question of principle: As recent debates show, there can be vigorous disagreement over what words or phrases constitute, for instance, calls for genocide.

Let me return to a key point that I raised earlier: In the early 1990s, more than 350 colleges and universities adopted hate speech codes. Every one of them that was challenged in court, without exception, was found unconstitutional. Inevitably, they were written in language too vague and overbroad to meet constitutional muster. And however well-intentioned, they were preventing the expression of ideas, albeit at times vile ones; that is something that is not permissible under the First Amendment.

This, though, does not mean that university administrators should do nothing when speech occurs that is harmful or inimical to the educational mission of the campus. Ben-Porath and I agree that university presidents, chancellors, and deans can and should speak out and condemn speech that is harmful. Universities are educational institutions and should have educational programs and trainings. Campuses must ensure the physical safety of students and provide emotional support and mental health resources.

There is no doubt that many schools, including mine, have struggled with difficult issues concerning freedom of speech since the Hamas terrorist attack in Israel on October 7 and the subsequent Israeli bombing of Gaza. Many students and faculty members have loved ones in these areas. The issues are deeply personal for many students and there is great passion on all sides.

But at difficult times like this, it is even more essential that we reaffirm and stand by our basic principles: As educational institutions, we must be places where all ideas and views can be expressed, even ones that some of us find offensive. There generally is a right to express hate, including antisemitism and Islamophobia, but such expression should be condemned. And we certainly can and should encourage our students to treat one another with tolerance, respect, and hopefully kindness.

Sigal Ben-Porath Responds:

Abiding by the law and the Constitution, including the First Amendment, is an essential duty for individuals and institutions. However, we must remember that this duty is a guardrail for the work universities do, rather than its goal. In the public sphere, we speak freely to share our voices (even if misguided or hateful), to express our dignity, to assert our equal standing among our peers, and to hold our leaders accountable. At a university, speech has another function. It is a vehicle for teaching, learning, and research that we use to produce and disseminate knowledge.

Democracies and universities have different boundaries for speech. In a democracy, lies and misleading information—for instance, faked photos and misinformed claims—are all part of a free-flowing conversation, and we hope that “truth will out” or that the expression of diverse views is in itself a benefit. Not so at a university. We restrict the expression or spread of speech for its quality: We reject weak or misleading ideas from our classes, journals, exams, and events. We punish misrepresented data or lies about personal accomplishments. We require adherence to speech practices in class, from the mundane (taking attendance, even if you do not like it) to the substantive (submitting your syllabus to the approval of your faculty colleagues). I suggest that universities maintain similar autonomy over our responses to hateful speech.

Higher education relies on an environment in which students know that they belong and that they are welcome to participate, to learn, and to thrive as equal members of our learning communities. Creating such an environment precludes ideologically driven censorship and punitive actions. The United States experienced such censorship and intimidation in the McCarthy era, and that is still a risk today. But the university’s mandate does permit responding to hateful speech—the kind of speech that polarizes us, silences some of us, and undermines open and collaborative learning and research, which are necessary to accomplish universities’ epistemic (or knowledge-seeking) goal.

Chemerinsky allows that university leaders disavow such hateful speech or respond to it with better speech. I suggest that they can take additional steps to try and restore the community’s capacity for dialogue, depending on the speaker’s role at the university and on the persistence, intent, and impact of the hateful speech. University leaders and administrators should be able to censure hateful speech, to require mediation, or to help students avoid contact with those who offend them. They should be allowed to use practices that set and express norms. Like Chemerinsky, I worry about the abuse of such powers. Rules and practices that address speech must be subject to internal processes, and of course anyone can appeal to the court if they suspect that their rights have been infringed on. But in the current polarized, heated, fractured environment, universities need to be able to set boundaries on ever more extreme speech within campuses so that they can continue to do their work.

The exchange of views, not merely the expression of views, is at the core of our work.

Today, speech is renegotiated both on the left and on the right. Conservative activists, who devoted themselves to promoting ideological diversity on campus by protecting the speech rights of their allies, are now attempting to restrict the speech of those with whom they disagree. Progressive activists, who have been pushing university administrators to censor and punish (what they view as) racist speech, now bristle over restrictions on (what others view as) antisemitic speech. These shifts create pressing challenges on many campuses.

I concur with Chemerinsky when he maintains that “at difficult times like this, it is even more essential that we reaffirm and stand by our basic principles: As educational institutions, we must be places where all ideas and views can be expressed, even ones that some of us find offensive.” Yes, the First Amendment, along with other laws and rules, should continue to inform and guide us as we stand by our basic principles as institutions of learning. However, I define these basic principles differently: We must be places where all members of our learning community can freely exchange their views and ideas with each other. At a university, the exchange of views, not merely the expression of views, is at the core of our work. The possibility of shared inquiry and learning requires ensuring the conditions for dialogue, for listening to each other, for assessing the quality of ideas. To do that, universities can limit the reach of hateful or misinformed views and amplify those that align with their epistemic practices, rules, and goals.

Read more about freedom of speechHigher education

Erwin Chemerinsky is the Dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law.

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Sigal Ben-Porath is the MRMJJ Presidential Professor of Education, and faculty director of the SNF Paideia Program, at the University of Pennsylvania.

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