Every day at one of the over four thousand colleges and universities in the United States, some eager individual is denied the opportunity to speak to college students. But somehow, no free speech controversies erupt when astrologers, flat-earthers, or biologists of Bigfoot are not invited to lecture to the freshman class. Nor does anyone from the ACLU to the National Review erupt in consternation bordering on fury and invoke the law when other unqualified or uncredentialed peddlers of lies, pseudoscience, and deliberate falsehood want a lectern. But when a white supremacist wants to speak on campus, their rights must trump all other concerns lest we lose our democracy at once.
This is the question at the heart of today’s campus controversies: Is our country better off today because the courts have, for about a half a century, protected hate speech above other types of speech and because colleges think they must follow this approach even when other options are available? Or is the country worse off today because hate speech, anti-democratic activism, and demagoguery have been granted special protection and formal platforms not accorded to other types of speech?
The free speech controversies on college campuses are gripping, sometimes disturbing, and in almost all cases about something else. They are not primarily skirmishes over the correct interpretation of the 45 words of the First Amendment. They are battles over whether we want to live in a country in which equality is an unwavering principle for an evolving society or in one based on overly abstract, ahistorical, and falsely transcendent notions that shelter abuse and unreason, as “free speech” has come to represent.
These battles also target the heart of our democracy by challenging universities’ prerogative to rely on confirmed experts to determine which ideas merit academic debate and which ones should be allowed to circulate freely in society but fail to advance knowledge and indeed undermine the search for the truth.
“Free speech” controversies are a circus. They unfold according to a circus script, with each of the performers playing their roles. It is time to strip away the clown suits and see these so-called crises for what they are: deeper conflicts over whether the university can decide what is truth and what is not and whether equality is truly the emancipatory principle of this democracy. Specifically, are spaces expressly designed and legally mandated to be equal—as university campuses are—able to be invaded by individuals committed to unreason and inequality?
“There are always, and in every context, insults which do not spring from reason and can be answered by none,” warned Supreme Court Justice Robert Jackson in a 1951 dissent.
The circus opens predictably: a conservative student group with links to national organizations invites a provocative speaker to a campus, preferably one with a storied history of free speech activism, like the University of California, Berkeley. The speakers—Ann Coulter, Milo Yiannopoulos, and Richard Spencer have all occupied center ring—advance baldly racist, sexist, anti-immigrant, and/or homophobic and transphobic political positions. The conservative activists relish their capacity to pull a nationally reported prank, partly externally funded but also subsidized by the university’s resources, on the hapless administration, liberal faculty, and students.
The speaker’s publicity team blankets social media with posts about the coming conflict, ensuring that groups who represent both pro- and anti-speaker positions get riled up. Worried university administrators hire extra security to protect students and speaker alike, running up bills high enough to draw the attention of parents, funders, and legislators. Students frustrated by their universities’ persistent failure to take concrete steps to achieve racial, gender, and sexual equality and distrustful of their institutions’ offers of prestige and a platform to people opposed to those values protest and occasionally shut down the invited speaker.
Heroes, martyrs, and culprits emerge. The speaker represents the First Amendment, the administrators are hapless bystanders, and the protesting and questioning students are depicted as intolerant, undemocratic, and treasonous gripes. A front-row chorus of otherwise polarized pundits invokes free speech as an absolute principle, even when American law has always recognized the regulation of speech in specific contexts. Their absolutist view is echoed by the nation’s highest officials, including the attorney general, secretary of education, and president. The president threatens to withhold federal funding for education unless ultra-conservative speakers are given unbridled access. And then the next act begins, pitting defenders of free speech with a knack for touching the third rail of American politics—namely, race—against the intolerant, ignorant students.
Universities cannot merely grant someone the abstract right to speak without also conferring legitimacy and prestige on that speech.
Instead of engaging with the campus controversies as an opportunity for our nation to fundamentally debate true equality, media pundits laud current legal doctrine as if it were not only self-evident but also the only possible option to defend the rights of Nazis and other antidemocratic forces in a democracy. They overlook the fact that universities cannot merely grant someone the abstract right to speak without also conferring legitimacy and prestige on that speech, just as reputable news outlets cannot simply print someone’s opinion without conferring prestige.
Many scholars have regrettably sided with these pundits and against their own interests, not to mention those of the university at large. They argue that allowing all speech is the ideal in a democracy and that any regulation carries risks greater than those created by any speaker. There are some good reasons for such lofty beliefs, but it cannot be proven that this is the only and best option.
Nadine Strossen, former president of the ACLU and a professor at New York Law School, has become a powerful voice for this absolutist position. In her new book, Hate: Why We Should Resist It with Free Speech, Not Censorship, she defends the ACLU’s position, which has come under close scrutiny after the events of Charlottesville, that hate speech ought to be permitted and protected at all costs.
Strossen worries that protesting students and the legally untrained public are too eager to blur the lines between speech that is currently protected and unprotected in the law. Strossen is correct that many people affected by and commenting on speech controversies lack the legal training to parse every legal ruling. She fears that restrictions on hate speech in particular would inevitably lead to restrictions on all kinds of political protest. This is a legitimate fear.
Because laws can be hotly contested, the public has the right to challenge them. The law’s openness to new interpretation has been borne out by the fact that there has been a split in courts over the years, leading to inconsistent rulings. In the 2010 Citizens United ruling, the Supreme Court notably defined the financial contributions to political campaigns as free speech and, therefore, protected by the First Amendment. In a 2018 ruling, National Institute of Family and Life Advocates v. Becerra, the Court ruled it permissible to withhold adequate information to women seeking health care, again in the name of free speech. The point is not to cite baffling decisions but to show that there is no inevitability in jurisprudence. The slippery slope, as many legal scholars have explained, is a ubiquitous metaphor but neither a legal nor philosophical certainty.
Strossen is most worried—as are others—that restricting hate speech in the US will lead to the state suppression of dissent and, ultimately, to totalitarianism. This is a uniquely American and clearly unprovable position. In other democracies, such as Canada, Great Britain, France, Germany, Italy, South Africa, Brazil, and India, the basic idea is that allowing hate speech and letting unreason not only flourish but be promoted by universities, which are state institutions, will lead to totalitarianism.
Leaning on legal rulings, Strossen explains why the desire to restrict hate speech is counterproductive, even if it might be understandable. She adopts a utilitarian approach, positing that absolute free expression ultimately produces a greater good for all. Speech laws in the US, she argues, have rightly enforced a strict neutrality when it comes to point of view. Only true threats like defamation, obscenity, treason, perjury, and aiding terrorism can be excluded from free speech protections in specific cases. Any other redrawing of these lines, she reasons, will inevitably be turned against vulnerable minorities and diminish the greater good.
Strossen’s optimal scenario is the one that has already been laid out in legal cases, in recent court decisions. In her view, all of us are better off for allowing Nazis to rally in our streets and neo-Nazis and white supremacists to espouse their racist and sexist views on campus. Today’s America, in this powerful account of recent jurisprudence, is supposedly such a strong democracy partly because it vigorously defends the advocates of virulent hatred, bigotry, and anti-egalitarian ideas. In fact, confronting hate speech, she argues, cultivates democratic virtue and leads to greater resilience in its minority citizens.
There is something oddly conformist in Strossen’s spirited defense of the status quo, especially because it seems to place the law beyond the reach of history. Would Strossen assert that all current jurisprudence—which permits, on the one hand, banning language “on abortion” in federally funded clinics, while, on the other, considering unlimited financial campaign contributions free speech—really leads to the best possible outcomes?
Several other recent authors are also absolutist with regard to extremist speech on campus. Along with Strossen, university administrators Erwin Chemerinsky (Dean of the University of California, Berkeley School of Law) and Howard Gillman (Chancellor of the University of California, Irvine) worry that the younger generation’s skepticism of current legal interpretations of the First Amendment will damage democracy. They interpret the students’ criticism of the current legal and political culture of defending public expressions of hate speech—even at universities, where such speech directly conflicts with the mandate for equal learning conditions—as a rejection of the First Amendment itself.
Although these legal scholars take pains to acknowledge protesting students’ concerns and avoid “special snowflake” epithets that mock student sensitivities and points of view, they believe that the next generation of students is misguided in its commitment to equality at the expense of protecting hate speech. Yet their own writing reveals just how removed they are from understanding millennials. They not only describe but spell out each word and letter of a fraternity’s racist chant:
There will never be a n[…] at SAE
There will never be a n[…] at SAE
You can hang him from a tree
But he’ll never sign with me
There never will be a n[…] at SAE—
In their subsequent argument, they ignore not only the chant’s exclusionary stance, but also its obvious incitement to violence, arguing that such expressions, which led to the expulsion of two students at the University of Oklahoma, must be protected at all costs. Strikingly, the authors repeatedly spell out—that is, write out, in their books, in print—the missing letters of the N-word.
What exactly is gained by such forthrightness? Chemerinsky and Gillman are right about the generation gap. Self-styled free speech absolutists see no “middle ground” on which fraternity brothers could be stopped from or disciplined for chanting such racist bile on a university-owned bus, although they recognize that “hate speech genuinely threatens an inclusive learning environment.” Still, like Strossen and Abrams, they pick a winner: the guarantees of equality in education and the university’s legal obligation to create a “nondiscriminatory learning environment” must never be used to infringe on any individual’s desire to express ideas. African American students’ equality as members of the university community loses out to the fraternity brothers’ desire to silence them by calling for their “hanging.”
All colleges and universities that receive federal funding must uphold guarantees of equality. This means these institutions must provide similar facilities and programs for both men and women and for students from all backgrounds. Originally motivated by the fact that many universities lavished funds on men’s sports teams—which function as much as networking opportunities as occasions for recreational competition and character building but were unavailable to women—Title IX now stipulates that no federally funded university may discriminate against students on the basis of sex. All students know that once they have been admitted, the school is legally prohibited from restricting physics labs to male students only or, according to Title VI, banning students from a particular ethnic or religious group from leadership positions in the university senate.
In addition to these legal mandates, universities also strive—via policies and unwritten norms—to create learning and teaching environments in which individual students are not isolated, targeted, or harassed based on their identity. This is often where the speech controversies ignite.
None of these books are sufficiently attuned to a key First Amendment problem: citizens speak from vastly unequal positions.
Offended feelings are not what is at stake, Chemerinsky and Gillman point out, but rather the institution’s commitment and legal obligation to provide a learning environment with equal conditions for all. The challenge is to provide an environment in which each student’s speech can be heard without violating the legal and moral principle not to exclude individuals based on their group belonging.
By sacrificing equality and allowing speech to trump all other rights, the authors appeal to civility as a remedy. Black, Jewish, Muslim, LGBTQ, and female students, faculty, staff and their allies, the authors imply, ought to act politely in the face of neo-Nazis, a mob of white supremacists, or a speaker calling for their expulsion from our nation. They ought to acknowledge the neo-Nazis’ right to call for their exclusion—and perhaps even extinction— vigorously but with civility and decorum and then hope that their arguments for their own existence trump the argument on the other side.
None of these books are sufficiently attuned to a key First Amendment problem: citizens speak from vastly unequal positions. They do not acknowledge a fact noted by Supreme Court Justice Elena Kagan in a dissent read from the bench in summer 2018: free speech is not inherently neutral but can be weaponized as a “sword … to undermine … democratic governance.”
Students are keenly aware of the limitations of their own access to the channels of power that would allow their voices to be heard. They see the laws and norms of the university as creating such a place of power and influence. They see the First Amendment, also when they protest a speaker, as encouraging rather than shutting down robust debate. In raising difficult questions about speech, they implicitly follow Jamal Greene’s idea that in the best-case scenario, constitutional law can be “a grammar for political argument.”1 When they shout, turn their backs, block venues, or take to social media, students are defending their access to speech from those who would deny it. Some experts fail to see this, because they are blinkered by case law since the 1960s (including the 1977 Supreme Court decision granting Nazis the right to carry out a planned march in Skokie, Illinois), which has actually generated much legal debate rather than consensus.
“The United States has been fortunate not to have suffered such horrific events” as the Holocaust, Gulags, and Apartheid, which have guided other nations in their regulation of speech, according to constitutional expert Floyd Abrams. Abrams comments that America’s protection of hate speech especially “ha[s] served us well.” His puzzling omission of the history of genocide perpetrated against Native Americans and the enslavement of African Americans also denies their contemporary legacies, namely the persistence of racism and sexism that counters our nation’s ideals.
The violent history of our diverse society places specific demands on our commitment to free speech. Just as we must work to fully realize our Founding Fathers’ principles for all members of our pluralistic nation, we must ensure that long-suppressed voices can be heard and that we disable the mechanisms of silencing them, including incitement and credible threats. Abstract legal arguments about the democratic virtues of speech law’s content neutrality cannot address such fundamental tensions.
In Must We Defend Nazis? Why the First Amendment Should Not Protect Hate Speech and White Supremacy, Richard Delgado and Jean Stefancic consider the university a model for what society should be. Stefancic and Delgado do not believe, as self-styled speech absolutists do, that the university ought to invite all speakers based on the idea that more speech is always better. They are less certain that hatred, bigotry, and unreason will always be defeated by reason and that elevating hate speech above other categories of speech has produced the best outcome for all.
Delgado and Stefancic point out that “nothing in constitutional or moral theory” dictates the proper balance of free speech and equality. Like Strossen, Stefancic and Delgado also justify their arguments about speech on utilitarian grounds. But unlike Strossen, Chemerinsky and Gillman, or Abrams, who would protect hate speech and favor the deregulation of government power in this area, because they believe that it ultimately strengthens democracy, Delgado and Stefancic argue that carefully regulating hate speech, as with regulating libel or obscenity, can serve the greater good.
In a university, the learning environment that allows for the advancement of knowledge contributes to the greater good; discrimination and abusive speech undermine it by permitting and advocating inequality. To live up to their ability to create truth, universities must behave as communities in which all participants can count on equal treatment and respect, just as democracies must ensure the participation of all members to reach their full potential.
In Stefancic and Delgado’s view, equality and speech are not opposing concepts but rather “stand in reciprocal relation.” Freedom of speech depends on equality. By refusing to host neo-Nazis and racists, just as it routinely excludes astrologers, pseudoscientists, and amateur historians, a university fulfills its obligation to advance knowledge. Excluding racist speakers does not infringe on constitutional rights, because speaking at a university—public or private—is not an inherent or legal right. Guarantees of equality, on the other hand, transcend institutional boundaries.
The question arises regularly these days whether Richard Spencer should be granted a platform to advocate for a white ethno-state. Should conspiracy theorists who deny proven facts be invited to a university? Must their views be debated at a public university, which has legal requirements to treat all admitted students equally regardless of group belonging? Should a provocateur be given a podium who has a record of identifying students by name who are transgender or undocumented without their consent, thus turning them into targets? Delgado and Stefancic answer, “No,” since exposing students to attacks deprives them of the freedom from fear and harassment necessary for education to take place.
Racist slurs are more than just offensive. Offense is, in fact, not the issue. It is not chiefly that such words are hateful or that they pose difficult questions of definition, but rather that they promote illegal activity. Speakers currently suing universities on grounds that their free speech has been violated are calling for a society in which certain people are treated unequally and—considering what would have to happen to create a nation restricted to people by race—possibly driven out or eliminated altogether. In the context of universities, then, these speakers are advocating illegal behavior. The courts have held that speech advocating illegal behavior—when a reasonable observer considers it direct incitement but also in other contexts—is unprotected.
Speech controversies are a Trojan horse for the right’s attack on universities in general.
In a noteworthy case in 2007, high school students were punished for holding up a banner stating “Bong Hits 4 Jesus.” Their speech did not warrant protection, the Supreme Court ruled, because smoking marijuana was illegal in the state at that time, so their expression was reasonably viewed as promoting an illegal activity. Why would advocating for an America limited to people whom the authorities identify as white be considered speech worthy of protection, whereas jocularly promoting the use of marijuana as an expression of your Christian faith be prohibited speech?
In addition to ensuring student equality, universities also have a scholarly obligation to advance knowledge and respect truth. Free speech can serve that purpose, but it can also undermine it. The law is of little help here, as legal scholars Robert Post and Stanley Fish point out in their respective incisive essays in Who’s Afraid of Academic Freedom? In an effort to be “content-neutral,” current First Amendment doctrine does not recognize any false or bad ideas. But the very purpose of the university, Post and Fish explain, is to distinguish falsehood from truth and good ideas from bad ones. This does not mean rehashing settled ideas, but it means regulating what types of speech qualify to advance the educational mission. Virulent racism is based on false assumptions and false ideas that are not worthy of further debate in universities.
The vociferous defense of racial pseudoscience, like the falsehoods advanced to undermine scientific consensus on climate change, is part of a political strategy to undermine the university’s role as an arbiter of truth. It also comes close to justifying harassment when the narrow line between tolerating and endorsing vile speech is blurred.
The university’s very function is to decide what contributes to knowledge and to exclude ideas that don’t. It routinely rejects requests for talks by conspiracy theorists and unqualified speakers without the ACLU coming to their rescue. When the right doesn’t like a racist not being granted a platform, they advance strategies designed not to protect the First Amendment but to gut the very institution.
Stop Hyping Academic Freedom
The real threat lies in the attack on the university’s ability to arbitrate truth. The questions of whether a university can host speakers who do not believe in facts, free speech, or reasoned debate without undermining its very purpose and whether reason will always trump spectacle are not answered by First Amendment law.
The bad-faith attacks from some factions of the media and from politicians are couched in exasperated complaints about coddled students and political correctness run amok. They are also echoed by self-styled liberal faculty and administrators, whose chief obligation is to teach students but instead respond indignantly when those students demand not only better but legally mandated conditions that protect equal access.
Speech controversies are a Trojan horse for the right’s attack on universities in general. All too often, the attack on the university’s role as an arbiter of truth also comes from scholars who fail to see the intended effects of manufactured crises that cannot be resolved by law.
This article was commissioned by Caitlin Zaloom. 
- Jamal Greene, “Rights as Trumps?,” Harvard Law Review, vol. 132, no. 1 (November 2018). ↩
