The Volokh Conspiracy

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

Free Speech

Journal of Free Speech Law: "Campus Speech Should Not Be Free," by Prof. Sarah Conly (Bowdoin)


Just published as part of the "Non-Governmental Restrictions on Free Speech" symposium; here's the start of the Introduction and the Conclusion (the article is here):

A lot of people praise free speech, but no one really wants it. We don't want people to be able to follow us down the street at night yelling death threats. We don't want vital military secrets being revealed to our enemies. We don't want newspapers to write long articles about our private lives that are false, or even print pictures of us naked in the bathroom that are painfully accurate. We want certain kinds of speech, and not others. We want some free speech—but as soon as we say "some," that means we want speech that isn't really free, but rather that conforms to certain standards that we as a society have set. The question, then, is not whether speech should be truly free, but in what ways we think it should be controlled.

In what follows I will be addressing the morality of restricting certain forms of speech in educational institutions. There are different values at play in the university than in the state, and different goods that come from allowing or disallowing speech. But just as governments can rightly set guidelines as to what is permissible, so too can educational institutions. My argument is simple. Colleges and universities have one goal: education. That is what they are for, and that is just what it is to be a college or university—what could be termed their essence, their defining feature. So as long as we are acting qua members of an educational institution, enhancing education is the only goal that should guide us in this case.

Given that education is the goal, what should be learned and how should those things be learned? There have been many different ideas as to the pragmatic goals of education—whether it should focus on religious doctrine, which used to be a popular goal, or teach whatever would promote democracy, a more contemporary goal, or whether it should simply promote knowledge for its own sake. However, I would suggest two things that we typically want to get out of education, whatever the specific pragmatic goals. For one thing, we want to learn facts. However, there are many facts out there and we obviously cannot learn all of them, so naturally we must select what we want to know about, whether in the area of biochemistry, the history of the Reformation, or constitutional law. While this allows a wide variety of choice in what to learn, our learning goals in these disparate fields all share one relatively modest criterion for what we want to learn, and that is that we want what we learn to be correct. No doubt there are occasions when we don't want to know the truth (How do you like my new haircut?) but generally people go to school to gain true beliefs, not false ones. Knowing the truth typically allows us to better reach our goals, and that is what we want.

Second, we want to learn the methods we may best use for ascertaining what beliefs are correct. We know that what is believed quite reasonably to be true at one point in time may come to be revealed as false later in time. Given this, we want to learn sound methodologies for discovering what is true, whether that's the correct way to go about historical research, how to do extraction in the chemistry lab, or calculate Bayesian probability. That is the way we can check our beliefs and see whether we are justified in our beliefs. We improve our methods through experience, when, for example, what a science predicts will happen doesn't happen and we re-evaluate our methodology. We use our best methods to expand our knowledge, so learning effective methodologies is probably even more important than learning specific facts, since these methodologies provide a way of checking those facts….

Colleges and universities have a telos, an end, which defines them as what they are. That end is education. Education requires selection as to what is said. Complete freedom of speech is incompatible with education, and thus with the point of colleges and universities.