FREE EXPRESSION ON CAMPUS: MITIGATING THE COSTS OF CONTENTIOUS SPEAKERS.

Author:Goldberg, Suzanne B.
Position:A - Thirty Sixth Annual Federalist Society National Student Symposium on Law and Public Policy
 
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"If you're afraid to offend, you can't be honest."

"If you offend me, I can't hear what you're trying to tell me."

--overheard on campus

The debate over how colleges and universities should respond to contentious guest speakers on campus is not a new one. A quick look back to the early 1990s, among other times, shows commentators squaring off much as they do today about the tensions between protecting free expression and ensuring meaningful equality. (1)

Perhaps not surprisingly, the issues that contested speakers address are also much the same as they have been for several decades--government action and inaction on various issues, the rights and social status of identity-based groups, and conflicts within political territories and regimes, among others. And, I would predict, questions about how institutional leaders should respond to these speakers will still be quite pressing twenty or thirty years from now.

My aim in this brief essay is not to rehash the familiar debates but rather to consider whether and how schools ought to mitigate harms that may occur as a result of these speakers presenting their views on campus. That is, I start from the premise that, for both non-consequentialist and pragmatic reasons, colleges and universities should allow invited speakers to give their remarks on campus and should undertake serious efforts to minimize and prevent disruption. (2) I also begin with the premise that some of these talks may come with real costs for individuals and groups within the community, for the school community as a whole, and for those who encounter these speakers and their views in non-campus settings. (3)

My point is that it is both unhelpful and inaccurate to characterize these premises as being in zero-sum tension--as though free expression must supersede any concerns about harm and that harms, if any, can be remedied only by more speech. Instead I argue that institutions can and should recognize the costs that can accompany unfettered speech by guest speakers and take steps to recognize and mitigate those costs.

I begin by discussing the reasons underlying the premise that schools must allow invited speakers to give their talks. I then review the legal and policy landscape that reinforces the need for schools to take steps to address the costs that may arise from this commitment. With these points in hand, I turn to the central inquiry here and offer a tentative pairing of costs and potential mitigation strategies.

  1. A STARTING PREMISE: THE SPEAKER MUST GO ON

    My inclination has not always been to embrace an "allow all invited speakers to speak" rule. To the contrary, perhaps because my work has focused on barriers to equality, (4) I have frequently been moved by concerns about the costs to individuals and groups who might be negatively affected by the speaker's remarks. Yet I have come to embrace the rule as the much better alternative to a rule that would allow speakers to be barred from college and university campuses based on the reputation or role of speaker (5) or the content of their planned remarks. (6) Although the arguments for each position are familiar, a quick review of some of the central justifications for a content-neutral rule may be helpful background for the discussion below. (7)

    First, as a normative matter, higher education institutions are the quintessential site for contestation of ideas. One might argue that safeguarding this space, where views can not only be expressed but also challenged, takes on special importance at a time when surrounding communities are polarized and many people are increasingly reluctant to engage with views contrary to their own. (8) Even apart from times of political polarization, debates about society's received wisdom have played an important role in moving ideas from the periphery to the mainstream and in transforming the ways we understand ourselves and our surroundings. (9)

    Although college and university campuses are hardly the only forums where vigorous debate can take place, they remain among the few locations in American society today where those debates occur in person. (10) Importantly, too, campuses are uniquely situated to protect speakers' ability to get their point across even if someone else in the room is louder or has more supporters nearby. (11)

    Further, since the typical contentious speaker on campus aims to present to students rather than to a faculty workshop, it bears noting that allowing speakers to share their ideas fits directly within the mission of higher education to expand students' knowledge of the world and their critical thinking skills. This is not to say that all speakers are equally educational--indeed, some of the most contentious debates have occurred regarding invitations to speakers for whom provocation may be an end in itself. (12)

    Yet even for deliberately provocative speakers, there is value in maintaining frameworks that require students to express disagreement with a speaker's views by means other than shouting over or otherwise disrupting a speaker who is in the midst of addressing an audience. (13) In part, there is educational benefit to students having to formulate questions or comments that express their points of disagreement, which is a different exercise from shouting or chanting with the intent to disrupt or end an event. (14) And in part, there are audience members seeking to hear the speakers' ideas, whether to learn, support or dispute. If protesters can shout over speakers without consequence, institutions find themselves in the awkward and infeasible position of having to determine which disruptions should be penalized and which not. (More on the challenges of this line-drawing in a moment.) Also, while protesting can be valuable training for post-graduation civic engagement, so too can posing hard questions to speakers who hold extreme views. If protest results in disruption, however, that opportunity may be foreclosed.

    Along these lines and as a practical matter, a strict content-neutral rule also poses fewer risks of misuse than a rule that authorizes an individual or group to exclude or disinvite speakers because of those speakers' views. To be sure, for someone like me who is concerned about the negative impact certain speakers can have on students and other community members, it might be desirable in theory to exclude speakers whose views rest on disproven data or long-rejected ideological preferences. At the same time, the response to this position is powerful--that it is not workable (also in my view) to draw those lines in a setting that is committed to questioning and debating ideas. To do so, one would need to determine which data and ideas should never be questioned or debated--and also to determine that it is better for the campus community to be protected from hearing challenges to those inviolable data and ideas than to be pressed to defend them and to gain in understanding from that challenging encounter. (15)

    There is also the related practical point that excluding or disinviting speakers almost inevitably draws more attention to those speakers than allowing them to speak. Instead of the debate focusing on the value of the speaker's ideas, the exclusion from campus can have the unintended effect of reinforcing those ideas by suggesting that the campus community will be unduly influenced by their power. (16) The excluded speaker can then amplify this point via social media channels, leaving the school to appear to have engaged in this line-drawing out of fear rather than for whatever good reasons the school might have had in mind. (17)

  2. INSTITUTIONAL CONSIDERATIONS AND RESPONSIBILITIES

    Having a clear commitment to free expression and exchange of ideas, including ideas that have been widely rebuffed or have offended some community members, is not the end of the conversation, however. When speakers come to campus, they can have a significant impact on those who attend and sometimes on others in and outside of the community as well. Indeed, the impact on campus community members, especially students, through the addition of new perspectives and ideas to the community's cultural and intellectual life is among the chief rationales for inviting outside speakers into higher-education settings.

    Consequently, a question arises as to what responsibilities colleges and universities have, if any, to address the costs to community members and others on and off campus that can arise from the presence and comments of outside speakers. I will explore these costs, along with potential responsive strategies, in the next section. For now, I note simply that by costs, I do not mean to include the anxieties that can result from having one's ideas challenged but I do mean to take seriously the sense of intimidation or alienation that some experience when a speaker condemns or demeans aspects of their identity. I also want to take seriously concerns expressed about speakers who advance ideas that, in some observers' views, promote genocide, endanger the planet, or heighten the risk of other grave dangers to students, their families or the world. (18)

    While it is beyond the scope here to explore the legal landscape in depth, this section will flag several sources of law and policy that may bear on schools' choices about responding to these costs.

    First, to be clear, there is no law--at least none I am aware of--that would require a college or university to ban a speaker based on the potential costs associated with the person's ideas. To the contrary, for public institutions and for private institutions committed to First Amendment values, constitutional doctrine would be a steadfast barrier to doing so. (19)

    1. Discretion in Fulfilling the Educational Mission

      Still, colleges and universities are entitled to substantial discretion in determining how to fulfill their educational mission. (20) Against that backdrop, courts have occasionally held that schools can impose certain...

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