RETURN OF THE CAMPUS SPEECH WARS.

• Author: Healy, Thomas
• Position: Book review

FREE SPEECH ON CAMPUS. By Erwin Chemerinsky and Howard Gillman. New Haven and London: Yale University Press. 2017. Pp. xi, 159. $26.

INTRODUCTION

The campus speech wars are on again. They flare up every few decades, both symptom and symbol of some larger political and cultural battle. During the first and second Red Scares, they were marked by efforts to root out communist professors. In the 1960s, they revolved around student protests over racial inequality and the Vietnam War, and in the 1990s they were a response to the rise of political correctness. This time, the wars are being waged primarily over hateful and offensive speech. Some students and faculty have sought to eliminate such speech, or at least insulate students from its effects, arguing that colleges must work harder to create an inclusive environment for an increasingly diverse population. Critics have pushed back, labeling students today "snowflakes" and claiming that censorship and intimidation have replaced intellectual inquiry and reasoned discussion.

Venturing into this debate are Erwin Chemerinsky (1) and Howard Gillman, (2) two academics with dueling sympathies. On the one hand, both are constitutional scholars with a deep commitment to free speech and academic freedom. On the other hand, both are also university administrators with an equally strong commitment to diversity and the well-being of their students. They thus find themselves agreeing, and disagreeing, with both sides of the debate. As they put it in the preface to their book, Free Speech on Campus, "[W]e believe that both sides are right--and wrong. They are right in that both equality of educational opportunity and freedom of speech are essential for colleges and universities. But they are wrong in thinking that one of these objectives can be pursued to the exclusion of the other" (p. x). Their goal, the authors explain, is to show how both objectives can be fulfilled.

Based on this framing of their book, one might expect Chemerinsky and Gillman to stake out some middle ground on the issue of free speech, to reaffirm its importance but suggest ways in which it is, or should be, modified on college campuses. Instead, they adopt what might fairly be called a maximalist position, arguing that "all ideas and views should be able to be expressed on college campuses, no matter how offensive or how uncomfortable they make people feel" (p. 19). They also embrace the proposition that all members of the academic community must have the freedom "to use campus grounds for the broad expression of ideas, even if those ideas are expressed in ways that run contrary to the norms of professional conduct" (p. 76). And they disapprove of any attempt to block or disinvite controversial speakers, insisting that universities must display "a spirit of tolerance" (p. 70) and a "willingness ... to embrace and defend the unfettered exchange of ideas" (p. 69).

Such statements will gratify the campus critics, but Chemerinsky and Gillman also offer words of support for the so-called "snowflakes." For starters, they urge critics not to mock students for the compassion and empathy they show for vulnerable classmates (pp. 18-19). Doing so not only undermines the cause of free speech, they suggest, but ignores the extent to which the students' motivations are admirable (p. 18). The authors also emphasize various exceptions to the First Amendment, noting that universities can punish certain types of particularly harmful speech, such as true threats and harassment, and can impose content-neutral regulations of the time, place, and manner of speech (p. 20). Finally, Chemerinsky and Gillman argue that campus leaders can promote inclusiveness and a welcoming environment through their own words, "proclaiming the type of community they seek and condemning speech that is inconsistent with it" (p. 20).

It is a fine line the authors are attempting to walk, and they are sometimes more successful than others. But it is refreshing to read an analysis of the current situation that takes seriously the interests on both sides and attempts to reconcile them. It is also encouraging to think that the authors of this thoughtful book are in a position to implement the strategies they propose.

This Review has three parts. In Part I, I consider a preliminary question, which is whether free speech is really under attack on campus. Chemerinsky and Gillman believe that it is, but the evidence they offer to support this belief is underwhelming. In Part II, I analyze Chemerinsky and Gillman's argument that speech on campus should be protected to the same degree as elsewhere in society and contrast it with the position of Professor Robert Post, who argues that First Amendment principles have little application in the university setting. Finally, in Part III, I consider the strategies Chemerinsky and Gillman offer for promoting a supportive and inclusive environment without unduly restricting free speech rights.

1. A CRISIS ON CAMPUS?

   Anyone reading the news over the past few years would get the strong impression that free speech is under siege on college campuses. The Atlantic magazine has published a series of articles with headlines such as "The Coddling of the American Mind," (3) "The New Intolerance of Student Activism," (4) and "The Glaring Evidence that Free Speech Is Threatened on Campus." (5) New York Times columnist Frank Bruni has lamented what he sees as "a dangerous ideological conformity in too much of higher education," (6) and Yale Law Professor Stephen Carter has argued that "the true harbinger of an authoritarian future lives not in the White House but in the groves of academe." (7) Perhaps most damning, First Amendment lawyer Floyd Abrams has declared that the single greatest threat facing free speech today "come[s] from a minority of students, who strenuously--and, I think it fair to say, contemptuously--disapprove of the views of speakers whose view of the world is different from theirs and who seek to prevent those views from being heard." (8)

   Chemerinsky and Gillman largely accept this narrative. Their opening chapter is titled "The New Censorship," and they spend much of it describing recent incidents in which students or faculty members were disciplined for speech (pp. 1-9). They discuss the University of Tulsa student who was suspended because his husband posted personal attacks about two professors and another student on Facebook; (9) the two fraternity members at the University of Oklahoma who were expelled for leading their brothers in a racist chant on a bus (p. 3); the Colorado College student who was suspended for responding to the social media tag #blackwomenmatter with the comment, "They matter, they're just not hot" (p. 7); the University of Oregon law professor who was placed on administrative leave for wearing blackface at a Halloween party attended by faculty and students; (10) the UCLA fraternity and sorority that were suspended after cohosting a "Kanye Western" party where guests dressed as Kanye West and Kim Kardashian (p. 5); and the Texas Christian University student who was disciplined for posting racist and anti-Muslim messages on social media. (11)

   They also discuss several cases in which students and faculty members were targeted but not formally punished for their speech, including the investigation Northwestern University initiated against Professor Laura Kipnis after she wrote an article criticizing campus attitudes about sex (pp. 2-3); the backlash against a Yale University lecturer and residential master who sent an email to students defending offensive Halloween costumes (pp. 5-6); and the outcry expressed by students and administrators over pro-Trump messages (such as "Fuck Mexicans" and "Build that Wall") written in chalk on the sidewalks of several university campuses. (12)

   Many of the incidents Chemerinsky and Gillman describe are disturbing, but whether they add up to a free speech crisis is unclear. For one thing, seven of the thirteen incidents they recount occurred at private universities, where the First Amendment is inapplicable. And although Chemerinsky and Gillman argue that public and private universities should be equally committed to the principle of free speech (p. xi), the fact that private schools sometimes depart from rules that do not formally apply to them does not necessarily signal a crisis. In addition, several of the incidents they describe appear less egregious upon closer examination. For instance, the University of Tulsa student was disciplined under a school policy prohibiting harassment, (13) which Chemerinsky and Gillman agree is not protected on campus (pp. 118-23). The backlash against the Yale lecturer stemmed in part from the fact that she was a residential master whose job was to support students, not agitate them. (14) And the outcry over the pro-Trump messages did not lead to any action against the students who had written them. (15)

   Of course, the incidents Chemerinsky and Gillman describe are not the only examples of free speech being targeted on campus. There was the violent protest at Berkeley in anticipation of an appearance by Milo Yiannopoulos in 2017 and the student mob that shut down a talk by Charles Murray at Middlebury College the same year. (16) In addition, the Foundation for Individual Rights in Education has documented numerous allegations of censorship by students and faculty in recent years. (17) These allegations bolster the claim of a crisis on campus, but anecdotal evidence has its limits. Without fully investigating each case, it is impossible to know whether the allegations are true and, if they are, whether they constitute a violation of free speech rules. (18) There is also the problem of scale. A list of several dozen potential First Amendment violations is certainly troubling. But when one considers that there are approximately 4,700 colleges and over twenty million students in the country, it becomes...