Free Speech on Campus: Countering the Climate of Fear

• Author: John Hasnas
• Position: J.D., Ph.D., LL.M., Professor of Ethics, McDonough School of Business, Georgetown University and Professor of Law (by courtesy) at Georgetown Law Center
• Pages: 975-1008

Free Speech on Campus: Countering the Climate

of Fear

JOHN HASNAS*

ABSTRACT

Similar to the entertainment industry in the time of the blacklist, a climate of

fear has descended on the nation’s universities and colleges. It is the fear of

being punished, not for what one does, but for what one says. Today, students

and faculty frequently refrain from expressing unpopular or “offensive” posi-

tions—often conservative, libertarian, or traditional religious positions—for

fear of being labeled racist, sexist, homophobic, white supremacist, or of being

accused of engaging in hate speech. The fear comes in two forms: the fear of

being sanctioned by the university or college and the fear of being “cancelled”

by one’s fellow students or faculty members. In this article, I argue that these

fears arise from a set of perverse incentives on campuses. I suggest that the

only way to counter these fears is by changing the incentive structure. I then

show how coupling the addition of a “safe harbor” provision to a school’s

speech and expression policy with the creation of a pro bono legal organization

devoted to the preservation of freedom of speech on campus can effectuate such

a change.

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 976

II. FREEDOM FROM INSTITUTIONAL SANCTION . . . . . . . . . . . . . . . . . . . 979

A. The Abstract Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . 979

1. Private vs. Public Institutions . . . . . . . . . . . . . . . . . . . . . 979

a. The Current Understanding of the First

Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979

b. Application to Public Universities . . . . . . . . . . . . 981

2. Implications for Private Colleges and Universities . . . . . 982

* J.D., Ph.D., LL.M., Professor of Ethics, McDonough School of Business, Georgetown University

and Professor of Law (by courtesy) at Georgetown Law Center. The author wishes to thank George

Brenkert, Peter Jaworski, Jesse Spafford, Ben Bronner, Sahar Akhtar, his fellow participants in the

symposium on the Ethics of Freedom of Speech in November 2021, Annette Hasnas of Georgetown

University, and Ann C. Tunstall of Martin Pharmaceuticals for their insightful comments on a draft of

this article; Anna Colby, Augustin Horner, and Creigh Greensmith of Georgetown Law for their

invaluable research assistance; and Annette and Ava Hasnas for teaching him the importance of linking

freedom with responsibility. © 2022, John Hasnas.

975

B. The Problem of Incentives . . . . . . . . . . . . . . . . . . . . . . . . . . . 983

C. Solving the Problem of Incentives . . . . . . . . . . . . . . . . . . . . . 988

1. The Safe Harbor Provision . . . . . . . . . . . . . . . . . . . . . . . 988

a. The Litmus Test: Harassment Policy . . . . . . . . . . 990

i. What Is Harassment? . . . . . . . . . . . . . . . . . . 990

ii. Harassment Policy . . . . . . . . . . . . . . . . . . . . 993

b. Passing the Test . . . . . . . . . . . . . . . . . . . . . . . . . . 995

2. The Pro Bono Legal Group. . . . . . . . . . . . . . . . . . . . . . . 996

D. Defeating the First Fear . . . . . . . . . . . . . . . . . . . . . . . . . . . . 998

III. FREEDOM FROM INDIVIDUAL RETALIATION . . . . . . . . . . . . . . . . . . . 998

A. The Torts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001

1. The Dignitary Torts: Battery, Assault, and False

Imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001

2. Intentional Infliction of Emotional Distress. . . . . . . . . . . 1002

3. Defamation and False Light . . . . . . . . . . . . . . . . . . . . . . 1003

B. Transaction Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004

C. Defeating the Second Fear . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006

IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007

I. INTRODUCTION

Sixty-five years ago, a climate of fear gripped the entertainment industry in the

United States. It was the fear of being punished not for anything one did, but for

what one believed. Writers, actors, directors, and producers refrained from

expressing left-wing or socialist beliefs out of fear of being labeled a communist

or a communist sympathizer. This was the time of the blacklist, when such a label

would render one unemployable.

Today, a similar climate of fear has descended on universities and colleges

across the nation. It is the fear of being punished, not for what one does, but for

what one says. Today, students and faculty frequently refrain from expressing

unpopular or “offensive” positions—often conservative, libertarian, or traditional

religious positions—for fear of being labeled racist, sexist, homophobic, white

supremacist, or of being accused of engaging in hate speech. This is the time of

“cancel culture” when such labels can subject one to investigation, social oppro-

brium, and reduced academic or career prospects.

976 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:975

Today’s fear comes in two forms. The first is the fear of being sanctioned by

the university or college. The second is the fear of being cancelled by one’s fel-

low students or faculty members. The first fear is the fear of being condemned

1

or

threatened

2

A Yale law student who used the term “Trap House” in an e-mail invitation to a joint Native American

Law Students Association/Federalist Society event that would be serving Popeye’s chicken was threatened

by an associate dean and the school’s diversity director with damage to his reputation if he did not apologize.

See Aaron Sibarium, A Yale Law Student Sent a Lighthearted Email Inviting Classmates to His ‘Trap

House.’ The School Is Now Calling Him To Account., WASH. FREE BEACON (Oct. 13, 2021), https://

freebeacon.com/campus/a-yale-law-student-sent-a-lighthearted-email-inviting-classmates-to-his-trap-house-

the-school-is-now-calling-him-to-account/ [https://perma.cc/9QSQ-S8ZS].

or disinvited

3

A professor of geophysics scheduled to give a prestigious lecture on the climate of other planets

was disinvited due to his opposition to academic diversity, equity, and inclusion initiatives. See Colleen

Flaherty, A Canceled Talk, and Questions About Just Who Is Politicizing Science, INSIDE HIGHER ED

(Oct. 6, 2021), https://www.insidehighered.com/news/2021/10/06/mit-controversy-over-canceled-

lecture [https://perma.cc/4GQZ-YCJG].

or removed from classroom teaching

4

See Colleen Flaherty, Professor Who Said N-Word Twice Reinstated, INSIDE HIGHER ED (Mar. 13, 2020),

https://www.insidehighered.com/quicktakes/2020/03/13/professor-who-said-n-word-twice-reinstated

[https://perma.cc/899S-CGEG].

or defunded

5

Love Saxa, a Georgetown University student group whose constitution defined marriage as “a

monogamous and permanent union between a man and a woman,” faced a defunding hearing on the

ground that it fostered “hatred or intolerance of others because of their . . . sexual preference.” See Mary

Hui, Georgetown Students Have Filed a Discrimination Complaint Against a Campus Group Promoting

Heterosexual Marriage, WASH. POST (Oct. 25, 2017), https://www.washingtonpost.com/news/acts-of-

faith/wp/2017/10/25/georgetown-students-file-a-discrimination-complaint-against-a-campus-group-that-

promotes-heterosexual-marriage/ [https://perma.cc/FYE3-A6PQ].

or

fired

6

The dean of Georgetown Law School summarily fired an adjunct professor because she opined

that African-American students received a disproportionate share of the lower grades in her course and

suspended her co-teacher who failed to disagree. See Michael Levenson, Georgetown Law Fires

Professor for ‘Abhorrent’ Remarks About Black Students, N.Y. TIMES (Mar. 11, 2021), https://www.

nytimes.com/2021/03/11/us/georgetown-university-sandra-sellers.html [https://perma.cc/XW4N-6LFN].

or not renewed

7

Duke professor Evan Charney’s contract was not renewed after nineteen years of teaching at the

University because some students complained that his class created a hostile environment by rigorously

critiquing all viewpoints. See James Freeman, How to Get Fired at Duke, WALL ST. J. (Apr. 24, 2019),

https://www.wsj.com/articles/how-to-get-fired-at-duke-11556133633 [https://perma.cc/PEM6-TG5R].

because of the things that one says or writes. Perhaps more

significantly, it is the fear of having to defend oneself against the charge of violat-

ing Title IX

8

Laura Kipnis, a Northwestern University professor, was subject to a months-long Title IX

investigation for sexual harassment on the basis of an article that she published in The Chronicle of

Higher Education criticizing the University’s Title IX enforcement policies. See Jeannie Suk Gersen,

Laura Kipnis’s Endless Trial by Title IX, NEW YORKER (Sept. 20, 2017), https://www.newyorker.com/

news/news-desk/laura-kipniss-endless-trial-by-title-ix [https://perma.cc/4MSB-LUEV].

or the university’s harassment policy

9

Laurie Sheck, a professor at The New School, was investigated for discrimination for using the N-

word when discussing James Baldwin’s use of the N-word. See Colleen Flaherty, N-Word at the New

School, INSIDE HIGHER ED (Aug. 7, 2019), https://www.insidehighered.com/news/2019/08/07/another-

professor-under-fire-using-n-word-class-while-discussing-james-baldwin [https://perma.cc/A2UE-7VGU]. My use

of “the N-word” in this note is itself evidence of the fear being discussed.

or the university’s rules

1. A student at Georgetown University was condemned by the Georgetown University Student

Association for publishing a blog post critical of the Black Lives Matter movement and the Supreme

Court decision extending Title VII protections to transgender individuals. See Ethan Greer, GUSA

Senate Condemns Blog Post Written by a Georgetown Student, GEO. VOICE, July 8, 2020.

2.

3.

4.

5.

6.

7.

8.

9.

2022] FREE SPEECH ON CAMPUS 977