The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, by a 7-2 vote, the University of Minnesota's top faculty committee voted to "provisionally support" a strong statement backing the freedom of speech on campus as the University's "paramount value"-more important than even the university's commitment to creating a "climate" conducive to equity and diversity. The resolution adopted by the Faculty Consultative Committee (of which I am a member) requests input on the statement from university President Eric Kaler, Provost Karen Hanson, the Student Senate, the university's committee on Academic Freedom & Tenure, and the university's Office of Equity & Diversity.
The move comes after several recent campus controversies over free speech-including two incidents where protestors attempted to shout down guest speakers (see here and here) and the investigation and recommended public censure of faculty members by the university's Office of Equal Opportunity and Affirmative Action for using an image of Mohammed from the cover of Charlie Hebdo magazine. Ironically, the image was used to promote a panel discussion on free speech and censorship after the terrorist massacre of the magazine's writers and editors.
The statement reads in full (footnotes omitted):
University of Minnesota Board of Regents policy guarantees the freedom "to speak or write as a public citizen without institutional restraint or discipline." The protection of free speech, like the related protection of academic freedom, is intended "to generate a setting in which free and vigorous inquiry is embraced in the pursuit of 'the advancement of learning and the search for truth,' in the words emblazoned on the front of Northrop Auditorium." Ideas are the lifeblood of a free society and universities are its beating heart. If freedom of speech is undermined on a university campus, it is not safe anywhere. The University of Minnesota resolves that the freedom of speech is, and will always be, safe at this institution.
Protecting free speech means embracing four core principles:
(1) A public university must be absolutely committed to protecting free speech, both for constitutional and academic reasons. As a public institution, the University of Minnesota has a constitutional obligation under the First Amendment to safeguard the freedom of speech. As an academic institution, the University must cultivate a community-wide norm of respect for free speech that goes beyond ensuring mere First Amendment compliance. The University must accordingly guarantee to every member of its community the liberty to express ideas regardless of viewpoint. University officials must neither implicitly nor explicitly suppress, punish, or regulate protected speech because of its content. Every member of the University community-including administrators, faculty, offices, staff, and students-must respect both the right of others to speak and the right of listeners to hear that speech. No member of the University community has the right to prevent or disrupt expression.
(2) Free speech includes protection for speech that some find offensive, uncivil, or even hateful. The University cherishes the many forms of its diversity, including diversity of opinion, which is one of its greatest strengths. At the same time, diversity of opinion means that students and others may hear ideas they strongly disagree with and find deeply offensive. Indeed, students at a well-functioning university should expect to encounter ideas that unsettle them. The University encourages all members of the community to speak with respect and understanding for the dignity and life experiences of others. The shock, hurt, and anger experienced by the targets of malevolent speech may undermine the maintenance of a campus climate that welcomes all and fosters equity and diversity. But at a public university, no word is so blasphemous or offensive it cannot be uttered; no belief is so sacred or widely held it cannot be criticized; no idea is so intolerant it cannot be tolerated. So long as the speech is constitutionally protected, and neither harasses nor threatens another person, it cannot be prohibited.
(3) Free speech cannot be regulated on the ground that some speakers are thought to have more power or more access to the mediums of speech than others. The University invites experts, faculty, students, and others to stimulate vigorous debate. The University should take all reasonable steps to ensure that diverse opinions across the intellectual spectrum are both spoken and heard on campus. The University may use its resources to ensure that community members have space and access to present differing viewpoints. But University officials, like government officials, cannot assume the authority to pick and choose who may speak or how much they may speak based on the perception that some speakers have "too much" or "too little" power in public debate.
(4) Even when protecting free speech conflicts with other important University values, free speech must be paramount. As the classic Woodward Report on free speech at academic institutions concluded in 1974:
"Without sacrificing its central purpose, [a university] cannot make its primary and dominant value the fostering of friendship, solidarity, harmony, civility, or mutual respect. To be sure, these are important values; other institutions may properly assign them the highest, and not merely a subordinate priority; and a good university will seek and may in some significant measure attain these ends. But it will never let these values, important as they are, override its central purpose. We value freedom of expression precisely because it provides a forum for the new, the provocative, the disturbing, and the unorthodox."
Ordinarily, protecting free expression and enhancing human dignity go hand in hand. Speech has been a powerful tool for dismantling unjust hierarchies of discrimination and marginalization. The most effective response to offensive ideas is to rebut them with better ideas. Speakers are themselves subject to criticism from within the community for the substance of their ideas and the tone of their words. The University does not condone speech that is uncivil or hateful, and University officials should make this clear. Nevertheless, on those rare occasions when protecting expression conflicts with other values, like maintaining a climate of mutual respect on campus, the right to speak must prevail.