Chemerinsky, E., & Gillman, H. (2017). Free speech on campus. New Haven: Yale
Administrators in higher education walk a tightrope between protecting the right of individuals to freely express themselves while ensuring their campuses are safe environments. In past generations students fought for the right to speak freely and protest. Today, administrators are more often articulating the importance of free speech as students perceive "arguments about the social value of freedom of speech ... very abstract..., because they did not grow up at a time when the act of punishing speech was associated with undermining other worthwhile values" (p. 10). Educational leaders are experiencing challenges due to this shifting construct, the increased polarization of opinion, and a general reluctance to hold competing thoughts.
Erwin Chemerinsky serves as the dean and Jesse H. Choper Distinguished Professor of Law at University of California, Berkeley School of Law. Howard Gillman is chancellor and professor of law; political science; history; and criminology, law and society at the University of California, Irvine. In their book Free Speech on Campus, Chemerinsky and Gillman are clear in their thesis "all ideas and views should be able to be expressed on college campuses, no matter how offensive or how uncomfortable they make people feel" (p.19); however, they do not make this statement in a vacuum of campus ethos. The authors outline steps administrators can take to create inclusive communities that provide safety to all students.
The authors provide history context and philosophical importance freedom of expression. While this background information may be a reminder for some, it can expose a new generation to the previous generation’s fight to find their voice and overcome limited inquiry and expression in press or speech. Many current students have no sense of the challenges experienced by predecessors who faced many hardships in their struggle to provide a voice for social justice. Chemerinsky and Gillman walk the reader through the importance of the first amendment in the development of the United States after laying a philosophical framework of historical events in Europe that were shaped by the desire for free speech and a free press. Freedom of expression has been central to the growth of the United States and can be traced through historical events and court decisions. The authors make it clear to readers that, through these decisions, the courts advise that the proper response to hate speech is more speech with a purpose of countering the offensive ideals or false narratives.
While free speech holds an important place within the fabric of society, Chemerinsky and Gillman make the point that it is also central to the mission of higher education. Academic freedom is inseparable from most conversations about advanced education today but higher education's earliest roots were grounded in indoctrination. Conversations in the early academy were limited to those topics and opinions viewed as acceptable to the church and the state. In their chapter Nullius In Verna: Free Speech at Colleges and Universities, the authors expand the importance of free speech protected by the first amendment to conversations inside and outside the classroom should be protected by scholarly inquiry. Administrators must balance regulating appropriate speech in a professional setting within a "culture of unfettered inquiry".
Within a framework that stresses the importance of and continues the culture of free speech and open inquiry, the authors are clear speech acts, "which attack and demean people for ugly, hateful reasons" do not belong in the mission of higher education (p.81). While administrators search for concrete or absolute language to guide their policies, the Supreme Court has not issued a ruling on whether colleges and universities can prohibit expressions of hate. This text provides four areas that have been interpreted by the court: group libel, fighting words, laws prohibiting cross burnings, and laws imposing greater penalties for hate-motivated crimes. In each of these scenarios, the narrow interpretation is a “true threat”. Would a reasonable person determine the action to threaten the safety of an individual. The decisions on these matters do offer limited guidelines but they are narrow and provide little support to the hate speech codes published by many institutions in the last twenty years. Hate speech codes from the University of Michigan, Stanford, and the University of Wisconsin have all been viewed as too broad to maintain the protection of individuals' rights to free expression.
What then, should colleges and universities do as they attempt to protect free expression while establishing a culture and community receptive to all scholars? Chemerinsky and Gillman provide a number of practical principles for administrators. These principles address harassment, true threats, property destruction, and disruptions of classes and campus activities. In addition, the authors provide a list of actions administrators can take to promote student safety and a welcoming environment.
Free Speech on Campus provides a balance of historical and legal background with suggestions of practical actions for administrators. The authors are clear in their view institutions must protect the right to uncomfortable and unpopular speech on campuses. This protection should not only take the form of opportunity, but also freedom from disturbances in the form of disruption. The prescription for uncomfortable speech is more speech supports academic and thoughtful discourse. If speech is limited based on content or ideals, is there is a slippery slope to only allowing speech by the majority or those in political power? At the same time, Chemerinsky and Gillman argue administrators should take steps to prevent speech that clearly oversteps established legal boundaries by identifying true threats or actions that disrupt mission-central activities. The conversation related to the topic may seem intense and volatile, but it is not new. Free Speech on Campus provides administrators with both the background information needed for educational conversations and actionable suggestions to implement on their campuses.
Dr. S. Bryan Rush currently serves as Dean of Students at the University of Southern Indiana.