Michael S. Roth—
Advocates for unfettered speech are often following the “free market” approach: just as more competition in the economic marketplace makes it more likely that goods and services improve, so more competition in the “marketplace of ideas” makes it more likely that better theories and practices are developed. According to this way of thinking, the cure for offensive, hurtful talk should be “more speech,” not the regulation of speech. It is through more speech that avenues for social change and scientific advances are created. It is through more speech that bigoted attitudes about minority groups are changed. More speech means both more inquiry and more debate, the combination of which should help dispel bad ideas and solidify better ones. Free speech, in this view, is the fuel for progress, bending the arc of history toward prosperity, understanding, and justice.
As a teacher and president of a university, I find much to agree with in the free market approach to campus speech. In the words of Hanna Holborn Gray, former president of the University of Chicago:
Education should not be intended to make people comfortable, it is meant to make them think. Universities should be expected to provide the conditions within which hard thought, and therefore strong disagreement, independent judgment, and the questioning of stubborn assumptions, can flourish in an environment of the greatest freedom.
Gray’s statement is quoted in the University of Chicago’s Report of the Committee on Freedom of Expression, a report that has led to the “Chicago Statement,” a free speech manifesto embraced by the Foundation for Individual Rights in Education and by many colleges and universities across the country. The report was released in 2015, a time when many campuses were perceived as having experienced a chilling effect on discourse; together with the published “Chicago principles,” it has served to identify this specific university with an embrace of free speech that plays well in the higher education marketplace.11
I share the concern that many college students today are too open to restrictions on discourse; they fail to recognize that such restrictions have often been used by those in authority to censor those who are trying to create social change. They are too quick to ask an institutional authority to step in to curtail certain forms of speech they find hurtful; they are too ready to demand that community members be trained to use only certain kinds of language. I’ve experienced all this firsthand as a university president. A few years ago, an anti-affirmative-action group on campus followed a national template in orchestrating an “Affirmative Action Bake Sale” at the university center. The political theater was to sell cupcakes to white people at a higher price than to members of under-represented groups. Some students of color came to my office to demand that the bake sale be closed down and the students punished. I told them that, in my judgment, however offended they were by the bake sale, the university center wasn’t any less safe for them because of it. There is a difference between being made uncomfortable by obnoxious analogies and being made unsafe by intimidating threats. I also emphasized that it wasn’t the job of administrators to make their political arguments for them. The students were not pleased, but they figured out how to make their own arguments heard.
Some argue that universities should never restrict the expression of ideas. Stone has long defended this view from his Chicago perch, as have Erwin Chemerinsky and Howard Gillman, administrators at the University of California and authors of Free Speech on Campus (2017). These academic leaders at UC Berkeley note their own “instinctive distrust of efforts by authorities to suppress speech” and glorify the first years of the Free Speech Movement a half-century ago on their campus. There is a touch of self-righteousness in their proclamation that “if you value social order and conformity more highly than you value liberty and democracy, then you will not support free speech no matter what else we say.”12
The free market approach to speech embraces content neutrality, but its commitment to pure principle can itself be a form of dogmatism. To find justifications for this fundamentalist approach to freedom of expression, Chemerinsky and Gillman look to the past. “History demonstrates,” they write with abandon, “that there is no way to define an unacceptable, punishment-worthy idea without putting genuinely important new thinking and societal critique at risk.”13 Stone has much the same view: “History shows that suppression of speech breeds suppression of speech. If today I am permitted to silence those whose views I find distasteful, I have then opened the door to allow others down the road to silence me.”14 Most defenders of the free market approach rely on these kinds of “slippery slope” arguments: if any idea is regulated, all ideas are at risk for future regulation. The poet John Milton, who famously argued that individual opinions must be allowed to flourish if we are to pursue truth, is often appealed to in this regard (including on multiple occasions by the Supreme Court). But as Stanley Fish has devilishly pointed out, Milton defended diversity of opinion—among Protestants. Not among Catholics: “them we extirpate,” Milton wrote.15
If there is a slippery slope, we are always already on it. Fish and others have underscored that defenses of free speech always exclude something. For Milton, it was Catholics. For us today, it might be child pornography or incitements to violence. Usually, the exclusions can be enforced informally by social or professional pressure (appeals to civility, ostracism), but borders for acceptable speech also get codified in rules and regulations. And there are always borders.
Even the most fervent advocates for the individual liberty approach to speech recognize that the marketplace of ideas on campus needs some regulation. Harassing speech can be punished, they aver, but only if true harassment is taking place. The Foundation for Individual Rights in Education’s version of the Chicago principles, for example, reads like this:
The freedom to debate and discuss the merits of competing ideas does not, of course, mean that individuals may say whatever they wish, wherever they wish. [INSTITUTION] may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of [INSTITUTION].16
But judgments about defamation, harassment, and “genuine threats” are also political judgments about discrimination, history, and power. Chemerinsky and Gillman write that “speech should be subject to punishment if it causes a reasonable person to fear for his or her safety,” but they insist that only physical safety counts.17 This judgment about what really counts as harm is also political. Making judgments about harassment (behaviors intended to disturb or upset) is something professors and administrators have to do on a regular basis, and they don’t always conclude that when it comes to protection from harm, only physical safety counts. Does this mean they are sliding down the slippery slope leading to conformism or to authoritarian control of expression?
Like most advocates for unfettered freedom of expression on campus, Chemerinsky and Gillman assume that their fervent commitment is compatible with trying to “protect the learning experience of all students.” Stone, for his part, acknowledges that “the costs of free speech will fall most heavily on those who feel the most marginalized and unwelcome,” adding with almost startling tone deafness, “all of us feel that way sometimes.”18 But the University of Chicago leader is adamant that civility, not censorship, be the path forward. Universities should help minorities and the disenfranchised “learn how to speak up, how to respond effectively, how to challenge those whose attitudes, whose words, and whose beliefs offend and appall them.” In other words, if universities, rather than creating filters for particular ideas and speakers, encourage everyone to speak up, everyone will benefit. This is reminiscent of the view that the Citizens United decision protects American democracy for all citizens. In both cases, the suffering of particular groups due to the unequal distribution of power and resources is acknowledged, but the acknowledgment is followed by expressions of faith that this inequality is best dealt with through the uncensored mechanisms of the marketplace of ideas.
It is not usually the subtleties of First Amendment jurisprudence that lead university officials to appeal to core principles of free speech; usually it’s the need to respond to highly publicized disinvitations or disruptions of speakers on campus. When sociologist Charles Murray was prevented from speaking (and was subsequently attacked) at Middlebury College in 2017, the incident received national coverage. The undergraduate protestors who thought they were on the front lines of struggle in attacking Milquetoast Murray played into the hands of hypocritical handwringers who chose to see the threat to free speech coming from the shouts of students rather than, say, the efforts by powerful interests at the national level to intimidate journalists, undermine factual integrity, and reduce access to information. Granted, targeting undergraduates is a lot easier (and safer) than trying to wrestle with government officials who refer to the press as the “enemy of the people” and news they don’t like as “fake.”
Naturally, although Murray also spoke at many other schools that year without incident, it was the Middlebury story that grabbed headlines and ran in hundreds of media outlets across the country. Around the same time, Franklin and Marshall College invited its own controversial speaker, Flemming Rose, to deliver a talk about the lessons learned when he published cartoons of the prophet Muhammed in a Danish newspaper. Here, too, students were angry that their school was sponsoring a talk by someone who not only had ideas with which they disagreed, but also, they felt, was attacking a core dimension of their personal identities. There were protests at F&M, as well, but thanks to good pre-event discussions, the protestors waited for the speech to end, then posed their questions and made their own statements. This protest got some coverage, to be sure, but only a fraction of the national attention that the protestors at Middlebury received. The F&M story didn’t get the attention because it didn’t fit the “young people are so politically correct” narrative. Those who invest in that narrative reap political dividends when they respond to student protests of speakers by calling for stricter adherence to core principles of free speech, by which they mean that anybody who wants to say something on a college campus should be able to say it without being interrupted.
In fact, regulated speech is part and parcel of the academic enterprise. In “Free Speech Is Not an Academic Value,” Stanley Fish observes that universities place a number of filters on free speech: you must be certified in order to teach; you must be reviewed by peers and editors in order to publish; when you make bad arguments, you are shut down. The classroom has never been an unregulated market, and neither are scientific laboratories or academic journals. They all have procedures to ensure that tools of inquiry are used in a legitimate way to advance work in a particular area, and there are judgments to be made by those with qualifications about what counts as legitimate.19
When university liberals try to shore up support for free speech on campus, they are far more likely to talk about Berkeley in the 1960s than they are to discuss either the Citizens United ruling or the importance of equity and inclusion. When they wax eloquent about the Free Speech movement and People’s Park, they rarely repeat the powerful words of its leader, the man of that moment, Mario Salvo: “There is a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can’t take part. You can’t even passively take part! And you’ve got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus, and you’ve got to make it stop!”20 It wasn’t civility this leftist icon of free speech was calling for; it was passionate disruption.
Those who wave the flag for “free speech on campus” are generally convinced that the regulation of content, even when the intention is to protect the vulnerable, puts us on a path to authoritarian censorship. But the call for the free exchange of ideas no matter what the cost to “some people” doesn’t resonate with most college students who recognize that not all ideas make it to the market and that when one claims to be tolerant of all kinds of discourse, certain groups of people tend to get hurt again and again. As legal theorist Jeremy Waldron and others have noted, hate speech tends to find targets among groups that have long suffered from discrimination and worse.21 When markets are unregulated, real pollution, real harm, occurs—and it tends to wound groups that historically have been vulnerable. Over the past several years, the pollution has often come from right-wing provocateurs who come to speak at institutions of higher learning to add credence and energy to racist, homophobic, and sexist attitudes and practices. This dynamic increases in intensity as harmful effects are repeated. When those in positions of authority insist that this is not real harm because it’s not physical violence, or when First Amendment fundamentalists opine that “all of us” sometimes feel marginalized, it is no wonder that many students see the ideology of market deregulation at the heart of free speech dogmatism. They have learned, because they have experienced, that power matters in regard to speech as well as other things.
From Safe Enough Spaces: A Pragmatist’s Approach to Inclusion, Free Speech, and Political Correctness on College Campuses by Michael S. Roth. Published by Yale University Press in 2019. Reproduced with permission.
Michael S. Roth is president of Wesleyan University. His books include Beyond the University: Why Liberal Education Matters and The Student: A Short History. He lives in Middletown, CT.
11. See Report of the Committee on Freedom of Expression, University of Chicago, https://provost.uchicago.edu/sites/default/files/documents/reports /FOECommitteeReport.pdf. See also Whittington, Speak Freely, 55–56, and Osita Nwanevu, “When ‘Free Speech’ Is a Marketing Ploy,” Slate, March 23, 2018, https://slate.com/news-and-politics/2018/03/when-campus-free-speech -is-a-marketing-ploy.html.
12. Erwin Chemerinsky and Howard Gillman, Free Speech on Campus (New Haven: Yale University Press, 2017), 11, 27.
13. Ibid., 63.
14. Stone, “Free Expression in Peril.”
15. Stanley Fish, There’s No Such Thing as Free Speech, and It’s a Good Thing, Too (Oxford, UK: Oxford University Press, 1994), 104.
16. The foundation’s model resolution can be found at https://www.the fire.org/model-freedom-of-expression-resolution-based-on-university-of-chicago-statement.
17. Chemerinsky and Gillman, Free Speech on Campus, 116.
18. Stone, “Free Expression in Peril.”
19. Stanley Fish, “Free Speech Is Not an Academic Value,” Chronicle of Higher Education, March 20, 2017, https://www.chronicle.com/article/Free -Speech-Is-Not-an-Academic/239536.
20. Mario Salvo, “Sit-in Address on the Steps of Sproul Hall,” University of California, Berkeley, December 2, 1964, https://www.americanrhetoric .com/speeches/mariosaviosproulhallsitin.htm.
21. See Jeremy Waldron, The Harm in Hate Speech (Cambridge, MA: Harvard University Press, 2012) and his response to recent books in this area: Waldron, “Brave Spaces,” New York Review of Books (June 28, 2018), https://www.nybooks.com/articles/2018/06/28/brave-spaces-campus-free -speech. On harm, speech, and “inclusive freedom,” see Sigal R. Ben-Porath, Free Speech on Campus (Philadelphia: University of Pennsylvania Press, 2017).
Writing a History of Ignorance