The Volokh Conspiracy
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Last week the University of Minnesota Senate began to take up the issue of free speech on campus. No action was taken, but several students showed up to speak against a proposed "core principles" statement provisionally approved by the university's top faculty committee. The statement condemns efforts to shout down controversial speakers and declares free speech paramount to other values like maintaining a positive campus "climate." During the meeting, one faculty member also called for "discursive affirmative action" to correct perceived imbalances of power and influence among speakers, a concept explicitly rejected by the core principles draft. The Senate will likely consider the matter again this fall.
An article published this morning in Inside Higher Ed contains the most complete overview yet of the effort to protect free speech at the University of Minnesota and of the resistance it's encountering-mostly from some student groups. (Readers should be aware that I've been directly involved in the efforts to protect free speech at Minnesota.) From the article:
The University of Minnesota at Twin Cities is considering a set of statements on free speech that, if passed, could be the strongest such affirmation seen on any campus. Yet the statements' future is uncertain, given concerns—especially those from students—about free speech being "paramount" to other values. At the same time, it's unclear whether free expression can truly be protected without declaring it paramount.
"Ideas are the lifeblood of a free society and universities are its beating heart," reads a statement passed by a majority of members of the powerful Faculty Consultative Committee and now under debate before the Faculty Senate. "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."
The statement says that embracing free speech involves four core principles, including that a public university "must be absolutely committed to protecting free speech, both for constitutional and academic reasons." The university must accordingly guarantee every member of its community "liberty to express ideas regardless of viewpoint," and officials "must neither implicitly nor explicitly suppress, punish or regulate protected speech because of its content. … No member of the university community has the right to prevent or disrupt expression."
Free speech includes protections for speech that some find "offensive, uncivil or even hateful," according to the statement, and it can't be regulated "on the ground that some speakers are thought to have more power or more access to the mediums of speech than others." And while the university encourages respectful dialogue and understands that 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," it says, "no word is so blasphemous or offensive it cannot be uttered" at a public university.
The article notes several pending proposals for reform to protect speech on campus, including the appointment of a free speech advocate to review proposed disciplinary action involving speech:
In addition to those principles, the consultative committee late last month unanimously approved for further consideration a series of proposed actions. "It is painfully obvious that many members of the university community do not understand or appreciate the freedom of expression," that document says, recommending that the proposed core principles be widely published, including in orientation materials. The university also should encourage a "climate of respectful debate," such as by intensifying efforts to sponsor structured debates about controversial topics.
Relatedly, the university must "vigorously protect" when disruption is anticipated or occurs, according to the document. It defines "serious disruption" as chanting, persistent heckling or other noisy demonstrations that make it difficult or impossible for an audience to hear what a speaker is saying. It notes that disruption does not include peaceful protest outside an event, holding signs or wearing armbands in opposition of an event or speaker, or asking "critical questions" during a planned question-and-answer period.
Most notably, the actions document proposes the creation of a free speech "advocate" or watchdog charged with "ensuring freedom of expression is respected and protected during any investigation" involving free speech issues on campus. That role could be assigned to an independent officer or a person or committee within the existing faculty governance structure.
The problem, according to the document, is that investigations by various university offices, including equal opportunity and human resources, sometimes involve free speech. Yet such offices focus on "cleansing public discussion so that it is inoffensive" and promoting inclusivity, rather than affirming free speech. The unfortunate effect, the proposed policy says, "is to create an imbalance by which protected speech is subordinated to other values. But speech may not be curtailed simply because it is offensive."
The proposal to create a free-speech advocate is partly a response to the investigation of faculty members by the university's office of Equal Opportunity and Affirmative Action. The investigation was launched after the EOAA received complaints that the faculty members used an image of Mohammed from the cover of Charlie Hebdo magazine in order to promote, ironically, a discussion of free speech. The office recommended the faculty members be publicly condemned by their dean even though the flyer was constitutionally protected and had violated no university policy. The dean ultimately rejected EOAA's recommendation.
The statement of core principles also rejects arguments to "equalize" speech in order to address "structural inequalities" that purportedly allow some voices to be heard too much while others are not heard enough. An addendum, summarized by Inside Higher Ed, explains some of the reasoning.
It notes that there always have been challenges to First Amendment rights on campus. But current calls to limit speech stem from concerns about creating a welcoming climate and fostering diversity, as well as those about structural inequalities or attempts to "level the playing field" in terms of access to speech platforms.
"While such imbalances exist, they also do not justify speech regulation," the document says. "The Constitution forbids restricting expression on the basis of a speaker's identity or relative power. Who is unequal? What are the criteria by which inequality is judged?" In any case, it says, government and university officials aren't the ones to answer such questions.
Regarding concerns about climate, the addendum says, "There are many steps the university may appropriately and lawfully take to create a welcoming climate, including by fostering diversity in its faculty and staff. But no person or group, merely by claiming offense, may bring down the disciplinary machinery of the university to prohibit or punish speech on that account."
Inside Higher Ed places the Minnesota effort in the larger context of similar discussions across the country:
Together, the [three] proposed Minnesota documents [the statement of Core Principles, the Addendum, and the Recommendations] operate as a reminder that First Amendment rights remain a priority alongside other legal concerns that have come into focus on college campuses in recent years, such as those about inclusion and sex discrimination. In that sense, they echo a recent reportby the American Association of University Professors arguing that Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education, has been in many cases misapplied and threatened or stifled free speech and academic freedom. (It should be noted that report was met with criticism that it unfairly and in some cases inaccurately pitted campus safety concerns against faculty interests.)
The Foundation for Individual Rights in Education has long made similar arguments similar to AAUP's, condemning student calls to disinvite controversial speakers from campus or otherwise censor speech in the interest of students' emotional interests. FIRE gave a nod to Minnesota's proposed free speech core principles in March, calling them an "opportunity to commit to protecting free expression on campus."
Minnesota is not the first campus to attempt to reaffirm free speech in the last few years. The University of Chicago adopted a statement saying that "Except insofar as limitations on that freedom are necessary to the functioning of the university, the [university] fully respects and supports the freedom of all members of the university community 'to discuss any problem that presents itself.'"
The Chicago statement says that while ideas on college campuses will "naturally conflict," it is "not the proper role of the university to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable or even deeply offensive." And although Chicago "greatly values civility, and although all members of the university community share in the responsibility for maintaining a climate of mutual respect," it says, "concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas."
Princeton and Purdue Universities, among a number of other institutions, have adopted portions of that statement. But Minnesota's proposals, including the notion of a faculty watchdog for campus-based investigations involving matters of free expression, are the most comprehensive to date.
There has been resistance to the speech-protection effort, especially from some students. "Much of the criticism centers on free speech being a "paramount" value," notes Inside Higher Ed, "and detractors point to its potential to conflict with various other laws and concerns about educational access, campus safety and protecting students. In their own discussions of the document, some members of the Student Senate have asked whether its protections for 'hateful' speech condone hate speech, whether such a document is needed at all, and whether a definition of harassment should be included."
The Core Principles statement explicitly affirms that when it conflicts with other University values, "free speech must be paramount." Free speech is a term of art that does not include expression-like incitement, defamation or threats-falling outside constitutional protection. A problem for critics of the proposed core principles is that they have not identified any circumstances in which other values (like protecting people from hateful speech) should prevail over constitutionally protected free speech. If they do identify such circumstances, then by definition they are urging a public university to do something that's legally forbidden. If they can't identify any such circumstances, then free speech must be paramount. The classic Woodward Report on free speech issued by Yale in 1974 reached a similar conclusion:
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.
University of Minnesota President Eric Kaler is reviewing the proposals. During his State of the University address in March, he expressed support for robust speech protection. "We encourage all to speak with respect and understanding of others," he said, "but we should not forbid speech that shocks, hurts or angers." Counter-speech is the best antidote to bad ideas, he affirmed. "If there is any space in society for that, it's the university."