The New Free Speech War on American Campuses

In the United States, a new generation of students is questioning the principle of absolute freedom of expression. To avoid offending minorities, they demand that the university become a “safe space,” a shelter from all hateful words. Are they at risk of fleeing debate and blinding youth to reality?

On Oct. 1, 1964, Jack Weinberg, a student activist engaged in the civil rights movement, was arrested at the University of California, Berkeley. Hundreds, and later thousands, of students, surrounded a police car that had picked him up, taking shifts for 32 hours until the university agreed to release him. Mocking speakers took turns on the hood of the vehicle, which became an improvised podium, just a few centimeters above Weinberg and the police.

Students demanded more freedom of political expression on campus; they had just been banned from the sidewalks, where they had been distributing leaflets. This was the birth of the Free Speech Movement in the United States and the launch of a protest movement that would inspire youth around the world, like the protest that took place in France in May of 1968.

Students occupied campus spaces and debated at all hours of the day and night, taking up the refrain sung by Joan Baez and her guitar against the helmeted police. Some 800 among them, led by Mario Savio, “the American Daniel Cohn-Bendit,” were arrested during a protest on Dec. 2, 1964, but the movement didn’t fizzle out. After several months of sometimes violent struggle, the university agreed to relax its rules. The steps of Sproul Hall, a place at the heart of the campus where people spoke out, thus became a true symbol of the Free Speech Movement, a small pilgrimage site for those who know their history.

A Fracture Line

Today, the situation seems to be reversed. It’s the administration that constantly brings to order students who too strongly disapprove of certain political personalities and demand that their talks be canceled. The police are called not to disperse students who have come to make speeches, but to protect speakers from an angry audience. The university has even been subjected to investigation for the potentially illegal restraint of free expression because last year, over the course of a few months, Berkeley canceled several talks citing security concerns, including appearances by Milo Yiannopoulos, David Horowitz and Ann Coulter, three speakers known for being conservative and provocative.

It’s not so much a matter of determining whether Berkeley is going against its own historical position as it is ensuring that it respects the pillars of the Constitution. Because unlike France and most European countries, the First Amendment guarantees U.S. citizens freedom of expression, regardless of content or point of view, even if it means protecting hate speech.

For the world of academics and students, there is a true schism, made more salient by recent political events. There are two opposing visions of the university and of education: Some seek to create a more inclusive and protective campus to foster learning, even if it means restraining freedom of expression. Others stay the course, whatever the cost, in support of free speech, persuaded that education is meant to expose students to differences and disagreements. The first group fears a jungle of ideas that hurts minorities and reduces them to silence. The others caution against the risk of universities becoming “filtering bubbles” that mollycoddle and blind younger generations.

Expecting the campus to be a safe space is a trend that seems to be rapidly growing in popularity among American students. A March 2016 poll by Gallup and the Knight Foundation showed that 78 percent of students surveyed preferred an “open” learning environment, in which all types of speech and points of view can be shared, including hateful speech. Some 22 percent of students were in favor of a “positive” learning environment, in which offensive speech is forbidden.

A new poll was conducted by UCLA scholar John Villasenor only a few days after the far-right rally in Charlottesville in August 2017. The question, posed in exactly the same words as in the first poll, received a very different response: 53 percent of students opted for “open” education, and 47 percent for “positive” education.

This development is even being seen by professors in the daily classroom setting. More and more students insist on being warned when the content of a course could shock them. Some go so far as to leave the classroom during group discussions in order to avoid hearing hurtful opinions. Universities are troubled in the face of student petitions, some of which go beyond the First Amendment debate to question the curriculum: Can we not read Harper Lee’s “To Kill a Mocking Bird” because the word “nigger” appears too often? Can we not show images during history classes on the Ku Klux Klan?

In 37 years of teaching, Erwin Chemerinsky, currently a law professor at Berkeley, has observed the transformation of the battlefield.* “This impulse to protect others against hateful and discriminatory speech stems from a well-intentioned, and often very altruistic, approach on the part of students,” he insists.** The gap between current and past generations is above all a question of history and heritage. “The student population is more diverse than before and is thus more sensitive to the vulnerability of minorities,” Chemerinsky explains. “Their views on speech are more influenced by experiences of internet cruelty than by memories of civil rights or protests against the Vietnam War. Back then, offending was necessary! The social value of free speech is a much more abstract argument for this generation than for that of the 60s,” he adds.**

A segment of the university world intends to preserve the American exception by continuing to defend unconditional free speech. After the incidents in Charlottesville, Carol Christ, chancellor of Berkeley – that is, the head of the prestigious university – characterizes the argument for freedom of expression as “not one of legal constraint…but of value.” She leans on the arguments of John Stuart Mill to persuade students that choosing free speech is in their best interests: According to the British philosopher, truth always prevails, and it is, at any rate, too risky to award just anyone the responsibility of determining what constitutes valid or harmful speech. The best rebuttal to hateful speech is not to stifle it but to speak against it, to speak better and more often. For Chemerinsky and Howard Gillman, authors of “Free Speech on Campus,” a simple glance at the past is enough to reveal good reasons to defend free expression in the name of progress: “History shows that it is not possible to define an unacceptable idea, worthy of punishment, without endangering innovation and the critique of society,” they write. They recall how the extremely polemic works of Richard J. Herrnstein and Charles Murray, who asserted, among other things, the intellectual superiority of whites over blacks, sparked an academic response in the 90s so brilliant that to censor them would have been a loss to society.

Harmeet Dhillon is a San Francisco lawyer currently leading an investigation into the First Amendment at the University of California, Berkeley. She does not envy the European laws that allow the sanctioning and censorship of hate speech. It seems ironic to her that by attempting to avoid discrimination, the law risks being discriminatory itself. “We have to protect unpopular speech, not based on its content, but because it is what needs protection,” she says.** For months, she has meticulously examined the smallest details related to the cancellation of conferences within the educational environment, because the location, the schedule, the number of seats, the mounting security costs and the advertising deadlines are, according to Dhillon, leverage that the university frequently uses to provide less visibility to certain speakers, often under student pressure. The opinions of the personalities that Dhillon and her firm are defending are not taken into account and don’t even have to be examined. “Censorship is an epidemic,” she says, unperturbed. A turning tide, a bad wind, all these metaphors are being employed to express the fact that “saving the First Amendment is a priority and an emergency,” Dhillon says. **

However, the other camp doubts that totally free expression will create an environment conducive to learning. In January, Richard Delgado and Jean Stefancic, both law professors, published the provocatively titled work, “Must We Defend Nazis?” They insist on the destructive potential of speech, especially in an age during which students’ minds are being shaped. “Hate speech, particularly when it is racist, can shock and hurt, leaving its victims banned, scared, silenced, less capable of participating in public debate,” they say.** They propose balancing the obsession with free expression against equality. “All sensible speech,” they state, “requires equal dignity, equal access and equal respect for all those participating in the discussion.”**

The most common slogan used in student protests demanding a safe space in fact echoes this concern. “Speech is violence, we will not be silenced,” students chant to drown out the voices of controversial invited speakers.** According to the students, it is time to completely rethink the exceptions to protected freedom of speech outlined in the law, because they offer insufficient protection. Speech that represents a “real threat” can be punished, but only if it threatens the physical safety of a person, and not if it inflicts emotional harm. Harassment is another exception to the First Amendment, but for speech to be classified as harassment, the discriminatory speech must be intrusive and the audience captive. A student cannot be prevented from wearing a swastika at a university. However, that student can be prevented from painting that symbol on the door of a dorm room. According to the same logic, a racist speech delivered in public is protected by the law, provided it does not target a particular person in the audience.

Legally, it is very difficult for American universities to establish their own rules on freedom of expression. Public universities, like Berkeley, are bound by the Constitution. Private universities, like those in California, may be compelled by the laws of their state. Some associations are even keeping watch over the First Amendment, including the Foundation for Individual Rights in Education, an organization mainly composed of legal experts who keep track of free and censorship-prone campuses, and which maintains a database of “disinvitations.” If a university tries to establish a “code of conduct” that restricts freedom of expression on campus, FIRE invalidates it under the law as being too vague or too narrow.

In the 90s, after serious incidents at the University of Michigan, nearly 350 institutions adopted internal regulations to punish racist speech, and they were sued one by one. The carnage was such that, rather than waiting their turn, the universities created their own ineffective regulations.

Today, FIRE is working to dismantle the “free speech zones” put in place on certain campuses to ensure that protests don’t disturb classes, this criterion being the only strategy at the universities’ disposal. According to a February article published by the magazine Inside Higher Education, these zones are already endangered; they are in turn accused of being too small, too isolated, too difficult to reserve, or even, like Hawaii, too dangerous because they are sometimes situated in flood zones.

The Price of Security

The academic world is concerned about seeing masters of provocation cohabiting, within the intellectual promiscuity of the college campus, with a thin-skinned student population, especially in a tense political context. The position of universities in the free speech debate is risky: they can lose applicants, students, professors and, sometimes, funding. Now, the security costs linked to freedom of expression are exploding and inflaming further controversy. In a single semester in 2017, Berkeley spent over $2 million on security. It’s difficult to determine whether this budget can be reduced. Villasenor’s poll, published in September, shows that in order to silence speech that they deem offensive, 19 percent of polled students approve the use of violence.

*Editor’s note: Erwin Chemerinsky is dean of Berkeley Law and a law professor.

**Editor’s note: Although these quoted remarks are accurately translated, they could not be independently verified.