Note: This article was originally submitted to The Economist by the author as part of the Open Future essay contest.
BY: JAMES HAN, MANAGING EDITOR
The 2016 presidential election revealed deep political divides in the United States. While the chasm between the right and left had been growing for years, the election of Donald Trump emboldened many far right radical conservatives while enraging liberals and moderates. This political clash spread to some university campuses and turned violent in February of 2017 when a peaceful protest against right-wing speaker Milo Yiannopoulos at the University of California Berkeley escalated into riots that caused thousands of dollars of damage. Subsequently, UC Berkeley cancelled Yiannopoulos’ speech, a move that drew the ire of conservatives claiming it was an attack on free speech. Later that year, conservative Ann Coulter cancelled an event at UC Berkeley after threats of violent protest that much of the right considered a silencing of conservative thought and much of the left considered a justifiable exercise of their First Amendment rights. This contentious climate within campuses like UC Berkeley has complicated universities’ protection of speech. A commitment to free speech on campus should entail a protection of all speech that is not hateful or deliberately harmful, and those determinations should be made on a case-by-case basis by a student and faculty collective.
A university’s core function is to prepare its students for the world, a mission that includes teaching them how to engage with conflicting viewpoints. However, the line between speech that challenges thought and speech that creates debilitating environments of bigotry can be incredibly hard to define. Students have a right to feel safe on campus, but that does not mean students should be immune to ideas that challenge their worldview. Failing to challenge a student’s preconceived ideas constitutes a failure to prepare that student for the many opposing opinions they will interact with off campus. Universities have a responsibility to provide a comprehensive education, which necessitates discussions about controversial issues and political stances, and therefore requires free speech.
The definition of hate speech must be expanded beyond the Supreme Court’s definition to work on campus. On several occasions, the Court protected what most would call hate speech. In the 1968 case Brandenburg v. Ohio, the Court created the incitement standard, which holds that the government cannot punish offensive speech unless it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action”. Speech that is racist, misogynistic, homophobic, or otherwise bigoted is protected under the Court’s definition of free speech as long as it does not meet the incitement standard. Campuses, however, have no legal obligation to give intentionally hateful speech a free pass. Intentionally hateful speech lacks constructive value; moreover, it harms students emotionally and strengthens ideas of oppression and bigotry.
Each campus must define free speech before they can determine policy to protect it. Colleges and universities have the right to place constraints on free speech, and legal precedent shows that free speech can and must exist within certain limits. The Supreme Court defined such limits in the 1973 case Miller v. California. Marvin Miller had circulated adult materials in a mass mailing campaign, violating a California statute prohibiting the distribution of obscene materials. The Supreme Court not only upheld this statute, but also created the Miller test for determining obscene speech. Part of this test asks whether “the average person, applying contemporary community standards”, feels material is obscene. By including “contemporary community standards”, the Court made a flexible definition of obscenity. While obscene speech is not necessarily hate speech, the establishment of the Miller test shows that reasonable limits can be placed on free speech.
A commitment to free speech on campus while also fostering a safe and educational environment requires warding off hateful and dangerous speech while not censoring speech that is unintentionally offensive. The Miller approach—evaluating speech based on community standards—should be applied to the campus setting. This is best done by creating an elected student and faculty forum that settles disputes over controversial speech. An elected group should accurately represent the racial and political makeup of the university, and having faculty involved allows for more experienced people to help guide decisions and maintain impartiality. Any questionable speech can be brought to the forum to be reviewed and debated to determine whether is constitutes hate speech. Such proceedings should be public so that any member of the student body, faculty, or staff can hear arguments about certain speech. This group can refer students for disciplinary action if they spout hate speech and dismiss allegations of hate speech that are false or do not constitute hate speech based on a majority vote. This essentially amounts to a court within a university. Like a court, it can evolve as society evolves while providing a space for open and thoughtful discussion about speech.
There is the possibility that like any group, a free speech assembly could become an echo chamber or abuse its power. On campuses that heavily lean liberal or conservative, it is likely that an elected forum will reflect that political makeup, potentially crowding out the voices of the minorities. This is a reality that must be accepted because there is no way a university can balance out political leanings and campuses should not be doing so anyway. In the case of an abusive speech forum that irrationally discriminates against particular ideologies, the university administration needs to step in. If necessary, the administration must be able to remove all forum members and call for new elections. Vocal and engaged students will also help prevent an abusive forum, because they can point out abusive action and better hold them accountable while voicing their own opinions for people to consider. The ultimate safeguard of free speech rests in the students and faculty as a collective, and any commitment to free speech requires their involvement, even with the risks that may entail.
Of course, no policy is perfect, but the creation of elected forums to identify hate speech is the best option. Enshrining free speech without boundaries allows the intolerant to spread hate unrestricted. Philosopher Karl Popper argues in his paradox of tolerance that a society with unlimited tolerance will eventually succumb to the intolerant. Allowing divides to fester at the university level, a time when students should be developing complex worldviews, would only create a breeding ground for hate to grow unchecked. Furthermore, the free expression of hate puts marginalized students at risk of harassment or even violence, and all universities have a responsibility to protect their students on campus.
The opposite approach—namely, censoring specific topics or stances —would only create a similar problem. De facto censorship of speech doesn’t eliminate hate; it forces hate out of common discourse, but not necessarily from minds or voting booths. Even if a campus were to prohibit any speech that is offensive, it would be impossible to enforce that policy across the entire campus. There is no way to avoid controversial ideas and opinions entirely, and such avoidance is antithetical to the mission of any university. A commitment to free speech requires universities to confront those who are radical and unafraid to share their opinions with the rest of the world, no matter how many people they offend in the process.
The creation of an elected forum that rules on controversial speech builds a place where student observers gain exposure to hateful ideas without being personally responsible for addressing them. Ultimately, the violence at UC Berkeley came from a campus unable to navigate the nuances of a world governed by free speech. Therefore, any campus that commits to free speech must create a institutional space that encourages discourse without hate, teaching students how to have difficult but constructive discussions about complex topics. The fallacious rhetoric of the hateful will not be as convincing in a place where facts and reason hold the most sway. Some people will stubbornly hold on to their ideas irrationally, but responding to offensive speech with more measured and logical speech is the only way to effectively to convince others and preserve a tolerant world. Free speech entails a clash of ideas. Therefore, the values of an academic institution cannot be protected by authoritarian regulation of speech or by boundless freedom that lets hate grow unchecked, but by a space where free argumentation holds the deliberately hateful accountable.
The responsibility of any university to properly educate its students forces it to commit to free speech on campus. As unique settings not completely bound by legal precedent or laws, colleges and universities must employ their power to regulate free speech in a way that encourages learning. Only by creating a space that facilitates meaningful discourse can universities teach students how to respond to hatred and bigotry. A truly democratic society needs its academic institutions to ensure an open future by equipping students with the ability to navigate a complex world, a task that requires a campus with a commitment to free speech.
Image Credits: https://medium.com/@rchen8/the-purpose-of-free-speech-304507f55c54