Campus Free Speech, 2024

For free speech on campus, Brandeis and Holmes should guide colleges and universities.

I did not expect to write a book on free speech on campus. If you had asked me in 2020, 2021, 2022, or 2023, whether I might ever produce such a book, I would have said, "Are you kidding? Definitely not!"

But as they say, life is full of surprises. The on-campus disputes of 2024, spurred by protests connected with events in Israel and Palestine, led me to write a kind of extended "note to self," on my travel laptop—and here we are.

There's an issue that did not make it into the book, but that has haunted me for the last months. In thinking about freedom of speech on campus, we could use a lodestar. Two of the canonical First Amendment opinions—perhaps the most canonical, and perhaps the greatest—come from Justices Louis Brandeis and Oliver Wendell Holmes. Though they're grouped together, they're very different.

Brandeis' opinion is more elevated and soaring. It is almost a poem.

In Whitney v. California (1927), he wrote, "Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary." He added (and this is where he soared),

They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.

Let's pause over that passage. Law review editors would have a field day with it; Brandeis offered no citations for his claims, and it would not be so easy to demonstrate that Brandeis was really speaking for the founders. Still, it is reasonable to connect the protection of free speech with the civic republican tradition that the founders embraced (at least to some extent). For Brandeis, "an inert people" is the "greatest menace to freedom," and citizens are duty-bound to engage in political discussion.

Brandeis is prizing freedom from government, to be sure, with his emphasis on the importance of "counterspeech." Discussion, rather than censorship, is "ordinarily adequate protection against dissemination of noxious doctrine." (University censors, on both the right and the left—in New York, Florida, California, or Washington DC—please take note?) But Brandeis is also prizing participation in public affairs, and seeing it as a duty.

That's civic republicanism. It is also a kind of free speech libertarianism. But its libertarianism is derivative of its republicanism.

Holmes' defining opinion was his dissent in Abrams v. United States (1919). It is much darker than Brandeis, and more cynical, and it soars at a lower altitude and in a different way. It shows the influence of American pragmatism (William James, Charles Pierce, and John Dewey), not civic republicanism. Its libertarianism is derivative of its pragmatism.

Unlike Brandeis, Holmes nods, with some appreciation, at the impulse toward censorship: "Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition."

He adds, in a way that speaks directly to our era (again, left and right, please take note), that if you allow opposition by speech, you might seem to show "that you do not care wholeheartedly for the result."

In response, Holmes argues for epistemic humility.  "But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out." In Holmes' view, "That, at any rate, is the theory of our Constitution."

Thus Holmes' somewhat shocking conclusion:  "I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."

That's staggeringly eloquent, even if here again, law review editors would have a field day. ("That, at any rate, is the theory of our Constitution." Citation?)

Note, if you would, that while both Brandeis and Holmes are fiercely protective of free speech, the foundations of their commitment could not be more different. Brandeis, unlike Holmes, focuses on democratic self-government and public participation. Holmes, unlike Brandeis, emphasizes the limits of existing knowledge ("time has upset many fighting faiths") and "the competition of the market."

Also note, if you would, that neither Brandeis nor Holmes is an originalist. Neither of them claims that his approach is a product of the original public meaning of the First Amendment. Neither of them investigates history. They are seeking to understand free speech as a broad and general commitment, not limited to specific understandings of the late eighteenth century.

How does all this bear on free speech on campus? As they say, general propositions do not decide concrete cases.

Still, those inspired by Brandeis would begin with a kind of presumptive celebration of student engagement, seeing it as something to be welcomed and applauded rather than to be deplored. After all, the greatest menace to freedom is an inert people. And if some of what has been and is being said is noxious doctrine (and it sure is), it is nonetheless part of a process that is "indispensable to the discovery and spread of political truth."

Those inspired by Holmes would go in a different direction. They would urge that "the ultimate good desired is better reached by free trade in ideas." They would broaden the viewscreen and insist (and this is the kicker, as relevant now as in 1919) that "we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death."

I admire Holmes' opinion, but I don't love it. It's great, but it isn't lovable, not really. (It's brilliant, but it's kind of harsh.) I admire Brandeis' opinion, and I also love it. It's great, and it's really lovable. (It's brilliant, and it's kind of sweet.)

But in 2024, colleges and universities need both. And if they are looking for a single lodestar, right here and right now, there is a good argument that Holmes is their man.