The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

"Enforcing the First Amendment on Campus Won't, by Itself, Address the Problem of Academic Freedom"

"We also need to improve university culture."


I had a conversation with Prof. Anup Malani (University of Chicago Law School) about this at a conference, and asked him if he could write up his thoughts on the subject; he kindly agreed, so I'm passing them along:

A common view among those who worry about academic freedom (which includes this author) is that what we need is more universities to follow the University of Chicago's lead and adopt the so-called "Chicago Principles." This approach is roughly the equivalent of a decision by schools functionally to enforce the First Amendment on campus. This policy reform practically includes both not censoring viewpoints and prohibiting people from shouting down and thus shutting out others' speech.

These reforms are necessary, but not sufficient to address the challenge to academic freedom on campus or freedom of speech in society. The reason is that it fails to understand what colleges produce and how that affects academic freedom and civil society.

The conventional (economic) view of the university is that it produces a basket of goods: specific human capital (in your major), general human capital (learning to learn), signaling quality (from the admission itself), a network (your colleagues in your class). But omitted in common accounts is that a university also produces a "culture" that materially impacts life on campus and amongst graduates after graduation.

Culture is a hard-to-define concept. Let me use an analogy to game theory to flesh out what I mean by it. We think of a game as being defined by, among other things, (a) the set of permitted actions or strategies and (b) a set of payoffs from different combinations of actions. (I omit from the elements of a well-specified model (c) who the players are and (d) the equilibrium concept used to deduce the possible outcomes of the game.) Many games permit multiple equilibria. Which equilibrium is observed depends on players' beliefs about what they believe others will do in response to their actions, what they believe others believe, what others believe about what they believe, and so on.

Often the payoffs, which map player's actions to utility, are said to be the rules of the game. And we analogize institutions, in economic or political science parlance, to the organizations setting and enforcing the rules or conflate institutions and laws with the rules themselves.

Culture, by contrast, is the recursive beliefs of players. It is what identifies which of the multiple equilibria will be the actual outcome of the game. Thus, the same institution in two different locations with different cultures can produce different equilibrium outcomes. Think of Red and Blue states living under the same federal system. Or Harvard and MIT—similar rules (and location!), but different cultures.

When I say a university produces a culture, I mean the university (a combination of the faculty, administrators and the students, all as players) generate beliefs about how people will respond to different behaviors one might exhibit. So, what might be a reasonable form of signaling group fidelity at U. of Missouri will be different than what those behaviors are at Harvard, likewise at St. Olaf's versus U. Alabama. This culture affects how students behave not just in their school network, but also at jobs after graduation. It is a complement to the network in the sense that if you went to U. Chicago and your employer is dominated by a Columbia network, you can still do very well if Columbia and U. Chicago "taught" similar cultures.

Why is this important to the discussion of academic freedom? The narrow libertarian-like perspective that universities should let anyone way what they want on campus does not create a culture where it is ok to have free speech. It simply permits free speech given the pre-existing culture. To actually generate appreciation for free speech rights and respect for differing views, a university may have to do more than adopt the Chicago Principles. It may have to actively encourage thinking about both sides, civic dialogue, not closing yourself off from hearing disagreement, etc. Think of the difference between having a Title IX program versus educating new students and hires about what makes a hostile workplace. Now apply that to free speech. You need to go beyond not censoring and bullying, to educating community members about the importance of policy discussion and open-mindedness via activities and classes.

Even this may not be enough. I think there is a good argument for better representative of different views from society on campus, so people can understand what the range of views are in society. Otherwise, they may end up tolerant of the subset of views frequently seen on campus, but not the remaining views that are frequently seen off campus but not on it.

For example, if I am at a typical campus, I may learn that it's ok to be open to progressive and capital L centrist Liberal thought, but not learn that I may have to be respectful of the free speech rights of people who are conservative Christians, Muslims, or Hindus. The same is true at Pepperdine or West Point. Without a broader representation of views on campus, a Yale student would learn that the probability that someone smart would play "I am pro-life" or "have guns to hunt" in real life is zero, and that someone at West Point will learn that someone brave would play "I am transgender" or "think that the US is too antagonistic towards China" in real life is zero. While students learn to believe that the equilibrium response is to play "tolerate speech" in response to speech observed on campus, they may not learn that the equilibrium response is to play tolerance for speech not observed on campus. That means Yale graduates may react with intolerance to speech by religious conservatives and West Point graduates to speech by transgender persons or advocates when they leave campus.

The result would be college graduates who both pride themselves as tolerant of (a lot of) speech but also intolerant of a lot of common speech. From the perspective of the large swatch of society who did not go to college, these graduates primarily come across as non-tolerant.


It is important to note that none of this means that academic community members cannot judge one view to be better than another. Respectfully hearing someone out is not incompatible with judging right and wrong, better and worse.

What would happen if universities went beyond merely enforcing an academic version of the First Amendment to (a) encouraging a culture of respectful dialogue and (b) admit not just conservatives but people with disparate views from across the globe?

First, there would be more academic freedom for students and faculty on campus. Practicing free speech changes peoples' beliefs about other peoples' likely response—and thus their own response—when people say something one judges to be unpopular. Admitting a wider array of views helps people see (and believe) that a wider array of views are held in society than what is typically seen on American campuses. The resulting culture will help students see the distance between the Progressive left and the center right is really small relative to the distance between the views of those in urban Atlanta, the Cuban community in Miami, rural Oregon, Booklyn, rural Connecticut, and Orange County. This freedom will trickle up to faculty, who will feel less social pressure to temper their research so as to search for truth rather than the socially acceptable.

Second, building a culture of tolerance for differing views will influence the behavior of America's elites, who almost entirely made up of college graduates. Ensuring the US government does not restrict your speech is not the same as saying you will not face social sanctions in your local community for endorsing views that a non-trivial number of Americans hold. Such social sanctions might change peoples' preference, often in a positive direction. But they also lead to segregation of people by views, and thereby to polarization. To minimize such segregation and polarization, it would be useful to have a culture of respectful disagreement. If elites lead by example, then infusing newly minted elites with a substantive respect for polite discourse may help change the tone of American politics. Further, if future elites see the full range of American views when they are on campus, they may be less appalled by the view of the voting populace when they graduate, and less likely to trigger a reactionary response by non-elites with different views.

Once we recognize that colleges build (elite) culture, we will begin to appreciate why we should take college culture seriously. Those who believe strongly in free speech should realize that formal protections are not sufficient. We need universities to help people practice civil disagreement and perhaps expose them to fuller range of views held in American or global society.