January 27, 2020

On Freedom of Speech and Academic Freedom

January 27, 2020

Welcome back to a new semester! For me, the start of a new year is a good time to refresh our thinking on things around us. Given that we are entering a year of presidential election, I have been reflecting on what makes our democracy work. As an immigrant, what strikes me as the most distinctive American value is the First Amendment, and I have been fascinated by its wisdom and foresight:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

                                                                        -First Amendment, U.S. Constitution

The First Amendment represents basic freedoms and rights that are fiercely guarded by this country’s citizens as they embody the uniqueness of the American spirit. These protected freedoms – religion, speech, press, assembly, and the right to petition the government – provide Americans with extraordinary opportunities to live, believe, and behave in such a way that is free from fear and punishment. Of course, there are limits to these freedoms and I would like to focus on freedom of speech at public universities and how it connects with academic freedom.

The First Amendment protects speech from censorship by federal government entities and under the incorporation doctrine, also protects restrictions on speech by state and local government which includes lawmakers and elected officials, public schools and universities, courts, and police officers. It is interesting to note that this applies to public but not private universities, and restrictions on speech by public universities amount to government censorship. Over the years, legal scholars have debated the limitation of free speech on different grounds and numerous court cases have been established. The First Amendment Center of the Freedom Institute summarizes unprotected speech this way: “the First Amendment protects any speech no matter how offensive so long as it does not incite child pornography; blackmail; defamation; incitement of imminent lawless action; obscenity; perjury; plagiarism; solicitations to commit crimes; and true threats.” Concerning speech on university campuses, the American Civil Liberties Union (ACLU) offers a clear opinion: “the First Amendment does not protect behavior on campus that crosses the line into targeted harassment or threats… But merely offensive or bigoted speech does not rise to that level… Restricting such speech may be attractive to college administrators as a quick fix to address campus tensions. But real social change comes from hard work to address the underlying causes of inequality and bigotry, not from purified discourse.”

Free speech on university campuses remains a complex, and sometimes confusing, issue for students and other members of the university community. In his book Free Speech on Campus, Erwin Chemerinsky, Dean of the UC Berkeley Law School, notes that today’s students are the first generation where bullying was not tolerated and are “deeply sensitized to the psychological harm associated with hateful or intolerant speech” and “ambivalent, or even hostile, to the idea of free speech on campus.” They want to make campuses inclusive for all and know that hate speech causes great harm, especially among those who have been traditionally underrepresented in higher education. A March 2018 Gallup/Knight Foundation survey found that nearly two-thirds of college students believe the First Amendment should not protect hate speech and favor some restrictions on free speech rights to foster an environment where diverse perspectives are respected. But response to hate speech can’t be to prohibit and punish it. As former President Barack Obama said to the United Nations General Assembly in 2012: “The strongest weapon against hateful speech is not repression; it is more speech—the voices of tolerance that rally against bigotry.”

Some might ask why allow such speech on campus at all. While certain speech may offend our senses or be hostile to our values, it warrants the same constitutional protection as other speech because the right of free speech is indivisible—it protects the freedom of expression in whatever form that expression takes. As an entity of the government, public universities may establish general principles of protocol in choosing the time, fashion, and manner how certain speech is conducted. However, any restrictions on the contents of speech is a violation of the Constitution. Just because the presence of controversial individuals on campus is tolerated does not imply what they say is accepted—any member of the university community can and should exercise their own right to debate speech with which they disagree, and protest speech they find bigoted, unfactual, or offensive.

Now let’s consider academic freedom, which is distinct but closely linked to freedom of speech. Since their inception over 900 years ago, universities have been places where people voice controversial ideas, competing ideas are welcome, and ideas can be fearlessly debated, defended, and rejected. It is of fundamental importance that society acts to protect the rights of faculty members to speak out, study, research, and publish matters of public concern even when their views are controversial or unpopular. Faculty must feel confident in knowing that academic freedom gives them the right to study, profess, publish, and discuss controversial topics without fear of retribution.

The American Association of University Professors (AAUP) notes in its 1940 Statement  that “[Academic] Freedom in research is fundamental to the advancement of truth. Academic freedom in its teaching aspect is fundamental for the protection of the rights of the teacher in teaching and of the student to freedom in learning. The common good depends upon the free search for truth and its free exposition.” It is important to know that U.S. courts have made clear linkages between academic freedom and the freedom of speech. While academic freedom covers the freedom to research, teach and learn, it is also central to the proper functioning and purpose of higher education institutions. These rights were enforced by U.S. Supreme Court Justice William Brennan in the majority ruling of Keyishian v. Board of Regents (1967) which said: “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment.” The decision went on to solidify the importance of faculty’s ability to ask difficult questions, search for answers, and share research results as Justice Brennan included a quote from a U.S. district court decision in United States v. Associated Press (1943) which said, “The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection’.” In short, academic freedom is the foundation of a pluralistic society that embraces a multitude of ideas and the confidence that truth emerges by encouraging open debate and inquiry, rather than any forms of suppression.

In many aspects, the scope of academic freedom goes beyond the First Amendment—it extends beyond the speech rights to include the right to determine the curriculum of the classroom, institutional rules and regulations, faculty recruiting decisions, and other academic decision making that protect broader concerns of academic freedom. And unlike the First Amendment, academic freedom applies to both public and private universities.

I would argue that academic freedom, like free speech, is the foundation of our democracy and it must be protected as it manifests itself in consequential ways throughout the academy. I will be leading a discussion on this same topic at the January 29 General Faculty Meeting (3:00 – 4:30 p.m. in the Johnson Center Cinema). I hope you will participate in whatever way you can so these ideas can contribute to the richness of the conversation.

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