The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This is the third in a series of five guest posts we are publishing this week as the co-authors of a new book published by Oxford University Press titled "Unassailable Ideas: How Unwritten Rules and Social Media Shape Discourse in American Higher Education." The previous guest posts from this series can be found here and here.
Is there an academic freedom problem on campuses? It could be argued that the answer is no, because each year college instructors and researchers publish thousands of papers, teach thousands of classes, and issue thousands of social media posts that generate no controversy at all. But the scope of a freedom is defined by its boundaries. As we wrote:
By analogy, consider the scope of a different freedom: freedom of expression under the First Amendment … [I]t is precisely when the boundaries are tested that the protective power of [a freedom] springs into action. We wouldn't need a First Amendment to protect the right to make completely uncontroversial statements such as "I like ice cream." Rather, the power of the First Amendment is that it protects people's right to say and write things that they might otherwise be prohibited from (or punished for) expressing.
This provides a useful framing for considering the scope of academic freedom at universities. By analogy, the scope of that freedom is only truly clarified when it is tested. If we want to understand where the boundaries lie, the fact that the overwhelming majority of academic research and publications raise no academic freedom issue doesn't give us useful information…..
We need those protections for the tiny minority of cases where a college teacher or researcher says or publishes something that has potential value in academic discourse, but that also generates controversy, opposition, and pressures on the institution (and often from within the institution as well) to engage in censorship. If academic freedom can't provide protection in those cases, then it becomes a hollow concept devoid of any real meaning…..
The problem with an approach to academic freedom that gives what amounts to veto power to social media mobs is that it presumes that the social norms underlying the backlash always set the right parameters around permissibility. History teaches us what a risky assumption that is.
To see why, consider a thought experiment. Imagine that it is the 1950s, but with the modification that the same social media technology we have today is in place. Now imagine that a professor in that environment makes a highly visible public statement arguing that same-sex marriage should be permitted and be on equal footing with marriage between a man and a woman.
Today a rapidly growing majority of Americans, and an even higher fraction of people in campus communities (and the Supreme Court in Obergefell v. Hodges), agree with that position. But given the social climate that was in place in the 1950s, it's easy to see that this would have been immediately met with a storm of social media opposition. Within days, the professor's university would likely have issued a statement saying that the professor's views do not reflect the values of the university. It's likely that no mainstream academic journal would have allowed the professor to publish a paper expounding this view, and his or her future career prospects would have been imperiled.
As this and many other examples that could be constructed illustrate, historically speaking, when it comes to opinions that might generate backlash, the particular set of assumptions that were in place in any particular era don't always stand the test of time. Unless we believe that we have, against all historical precedent, arrived at a moment when the worldview that predominates on campuses is one that has all the right answers on all sociopolitical issues, we should be cautious about using that worldview as a source of authority on the limits of academic freedom.
A far better approach is to let university teachers and researchers freely voice and publish their opinions and research assertions, including those that people on social media might find offensive. Social media criticism, when it comes, should be part of the dialog, but it shouldn't be given the power to stop the dialog.