Free Speech on Campus

Abstract

The First Amendment to the United States Constitution protects the right to free speech. However, speech that is protected within society may not be protected on a college campus. Contemporary college campuses are increasingly characterized by ongoing conflict generated by the mission of education—that is, the free exchange of ideas. Institutions are charged with ensuring free speech rights while discouraging or forbidding speech that might be objectionable, uncivil, or harmful to some students. The conflict is further complicated by the responsibility of colleges and universities to ensure campus safety.

Overview

Examples of the conflict between free speech and the need to protect against hateful and harmful speech are numerous. For campus administrators, drawing the line between allowable and punishable speech can be difficult, as many expressions of offensive or even appalling thought are forms of constitutionally protected speech. Personal animus, cultural or language misunderstanding, and context are factors that can contribute to making clear distinctions challenging for policymakers. Yet making fair judgments is essential to preserving both the right of all students to an education and preserving the free exchange of ideas. The free speech movement on college campuses began at the University of California, Berkeley, in the 1960s; in the 2010s, changes in campus demographics and national politics posed new questions about the role of universities in fostering free expression while squelching abusive, antisocial, and even dangerous hate speech. Trigger warnings, political correctness, and hostile environments are all subjects of contention.

In Europe, colleges were established, beginning in the fifth century, for the purpose of preparing clerics for service in the Catholic Church. By the twelfth century, universities had expanded their educational mission, and the Constitutio Habita (c. 1155), adopted by the University of Bologna, laid the foundation for the enduring principle of academic freedom. During the seventeenth and eighteenth centuries, the Enlightenment spread throughout Europe, and humanist views and respect for the individual were influential in reshaping higher education and establishing the notion that colleges and universities were responsible for encouraging free inquiry. In 1859 in On Liberty, British philosopher John Stuart Mill summed up the need to protect the free exchange of ideas: “If all mankind, minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.” In 1643 and 1662, the British Parliament became engaged in the first free speech debates when they passed Licensing Acts that required publishers to attest that material printed was not anti-Christian or anti-government. In 1644 in Areapagitica, as England became involved in a civil war, poet and polemicist John Milton objected to censorship, insisting that restricting access to information limited the search for truth. Milton wrote that truth “needs no policies, nor stratagems, nor licensings to make her victorious.” Milton’s compatriot John Locke, who advocated the classical liberal thought on which the United States was founded, argued that freedom of speech and conscience were integral to democratic government.

The 1960s and 1970s were two of the most radical decades in American history. The civil rights and women’s movements were gaining momentum, and protests against the war in Vietnam were becoming more common. The free speech movement was launched at the University of California, Berkeley, where students revolted against a campus ban on political activities and loyalty oaths that had been instituted during the Red Scare of the 1950s and fought for the right of free speech. The movement spread to Columbia in 1968, to Harvard and Cornell in 1969, and to Yale and Kent State in 1970. As it spread, the goals expanded to encompass attacks on other issues, including racism, sexism, the draft, the Vietnam War, and college curricula that was largely seen as irrelevant to students’ lives. Some students also took on causes related to local concerns. Columbia University, which is located in Upper Manhattan, adopted the cause of neighborhood deterioration. Cornell University in Ithaca, New York, focused on the rights of African American students. Before it was over, three hundred colleges and universities in the United States had witnessed protests, sit-ins, building takeovers, strikes, and riots. While protesters insisted their actions were protected by the First Amendment rights of free speech and public assembly, local authorities did not always accept that argument, and they used such tactics as tear gas and student arrests to limit student rebellion. That exercise of authority turned lethal on May 4, 1970, when four students at Kent State were killed by National Guardsmen.

Frederick M. Lawrence (2017) argues that hate speech may be defined differently, according to national and cultural dictates. In Denmark, speech is defined on the basis of whether others are being threatened, derided, or disgraced. In Germany, hate speech encompasses any speech that poses a threat to human dignity. Threats may include insults, malicious, malignant, or defamatory speech. In the United Kingdom, the definition includes any speech that seeks to stir up hatred.

In the 1980s, colleges and universities began adopting policies, termed “speech codes,” that prohibited hate speech on campus, justifying the action through the need to respect the human dignity of all, regardless of race, color, gender, religion, ethnicity, national origin, physical limitations, or sexual orientation. Such restrictions were sometimes overturned by the courts. Nevertheless, campuses seeking to promote an environment of mutual respect and civility made efforts to eliminate sexist, racist, and other forms of hate speech. As college professors were increasingly required to monitor their speech and behavior, not only for overtly prejudiced language but also for inadvertent microaggressions, resentment erupted and gave rise to the term “political correctness,” or “PC.” Seen as administrative interference and an unnecessary curb on free expression, PC was also used to describe changes to pedagogy, curricula, and canons made in deference to the interests, concerns, or sensibilities of non-White and/or non-heterosexual male students. Many faculty came to feel oppressed, asserting that they were being forced to monitor each word and action out of the fear that their words might offend students’ sensibilities. In fact, students, keenly interested in advancing social justice, did demand dramatic concessions that greatly altered campus culture, challenging academic practices and assumptions. Even articles published in academic journals led students to file suits against professors.

Throughout American history, the courts have struggled with defining the line between protected and unprotected speech. Overall, the tendency has been to uphold the First Amendment unless speech turns into actions such as destroying property, inciting riots, and seditious speech that is intended to inflame others to attempt to overthrow the government. In Schenck v. United States (1919), as a way of determining the imminence of a threat, Justice Oliver Wendell Holmes established the “clear and present danger test.” While hate speech may be considered inflammatory, it may be protected by the First Amendment. As recently as 1992 in R.A.V. v. City of St. Paul, the Supreme Court overturned a Minnesota law that specifically banned bigoted speech.

Lawrence cites two 2014 incidents that called into question the line between free speech and hate speech. At Williams College, a Jewish student returned to her dorm to find a notice on her door, informing her that she was ordered to vacate her room by the following day or risk destruction of the room and all property therein at her own expense. Investigation into the incident revealed that the notice had been posted on every door in the dorm in imitation of notices placed on the door of Palestinian homes in Israel, and it was determined that the action was a political statement rather than an attempt at individual intimidation. In December 2014, following the murder of two police officers in the aftermath of the police-shooting deaths of Eric Garner and Michael Brown, a Brandeis University student caused an uproar on campus when she posted a message on her Twitter account saying that she had no sympathy for the officers. After the message was sent to sixty followers, it appeared on an extremist website, and other students began demanding that the original poster be expelled and her financial aid taken away. Ultimately, the student was deemed to be exercising her right of free speech.

Applications

In March 2015, at the University of Oklahoma, two leaders of the Sigma Alpha Epsilon fraternity were expelled for chanting racial slurs and promoting racial violence, and the fraternity was banned from campus. In April of that year, at Youngstown State University in Ohio, individuals removed all posters promoting “Straight Pride Week” from campus. In July, a student at Texas Christian University was suspended for expressing his racist views in rants on Facebook and Twitter. He was banned from the campus when not attending class, evicted from his dorm, sentenced to sixty hours of community service, and required to attend an “Issues in Diversity” class. These are fairly straightforward examples of intended harassment that cause harm to students by making them fearful of their fellow students—unaddressed by campus administration, such harassment is implicitly condoned and creates a hostile and potentially dangerous environment.

Some incidents of provocation and punishment are more controversial. In February 2015, George “Trey” Barnett, a student at the University of Tulsa, was suspended after his husband posted comments on Facebook, calling a student “morbidly obese” and two faculty “immoral.” Barnett, because the post appeared on his Facebook wall, was charged by the school with harassment, and he was suspended for one year. He was also banned from re-enrolling in his major program. He later filed a lawsuit, claiming that he had been denied due process and that the school had violated its own harassment policy, which it had used to penalize him for remarks made by another. That same month, Laura Kipnis, a professor at Northwestern, published an article in the Chronicle of Higher Education in which she attacked the university’s prohibition on teacher-student relationships, attributing it to a “politics of sexual paranoia.” Two female students filed harassment charges, stating that the article contributed to a “hostile environment” under Title IX of the Education Amendments of 1972 that prohibited sexual discrimination in education. Ultimately, no action was taken.

In addressing areas where offensive expression inevitably occurs as a result of traditional cultural symbols and motifs, colleges and universities face controversy. In October 2015, at Yale University, the Intercultural Office sent out an email warning students not to wear Halloween costumes that might be offensive to others. Erika Christakis, a lecturer in early childhood education, and her husband Nicolas, a professor, shared dorm master duties at Yale’s Silliman College. Erika Christakis responded to the email with an email of her own, expressing her views that students should wear what they wanted. Outraged students demanded that the couple resign. As a tenured professor, Nicolas Christakis kept his job, but his wife was forced to resign. The potential for costumes to be deliberately offensive, however, is well documented. In October 2017, a professor at the University of Oregon was forced to resign after she appeared at a Halloween party in her home in blackface. She said she had been trying to encourage open discussion of race issues.

Free speech controversies on college campuses heightened during and after the 2016 election. In March and April of 2017, some college students, including students at Tulane and the University of California, San Diego, posted messages in chalk. Known as “the chalkening,” messages expressed such pro-Trump sentiments as “Build that Wall,” along with racial and ethnic slurs. In August, a dean at the University of Chicago sent out a letter to incoming students warning that the university did not support “trigger warnings” (the practice of forewarning students of subject matter that might trigger post-traumatic stress disorder or other uncomfortable feelings), cancel controversial speakers, or assign safe speech areas. More than 150 faculty members protested the letter.

Issues

Since the populations of college campuses may be made up of liberals, conservatives, and radicals at either end of the political spectrum, conflicts are bound to emerge. In the 2010s, professional pundits indulged in increasing levels of vituperation in support of ideas generally considered “fringe” by those of the opposite opinion. Campus groups found that invitations to speakers whose views were abhorred by other groups drew criticism, controversy, and sometimes violence. In the divisive environment that emerged following the presidential election of 2016 between Donald Trump and Hillary Rodham Clinton, conflicts between students with opposing viewpoints became particularly intense. Many campuses designated areas where free speech rallies or protests were permitted.

Tensions arose again in 2024, when pro-Palestinian protests erupted on many college campuses across the US following the outbreak of the Israel-Hamas War the prior year. College administrators struggled to strike a compromise between their legal rights to restrict disruptive antiwar rallies and their commitments to allow free speech on campus. While some schools, such as Columbia University, called in local and state police to break up protests, governors in other states ordered public universities to revamp campus policies to place tighter restrictions on free speech. In Texas, for example, Governor Greg Abbott issued an executive order directing public universities to update their speech codes in light of rising antisemitism on campuses.

College administrators, who must walk a fine line between free speech rights and their responsibility for campus safety, sometimes uninvite or reschedule speakers instead of risking a riot, as happened in 2017 on the Berkeley campus, the birthplace of the free speech movement. In 1969 in Vietnam Moratorium Committee v. Clemson University, the US Supreme Court held that in the absence of proof that violence and disruption will occur during a student protest or rally, administrators cannot prohibit the exercise of free speech on campus. After several high-profile conservative pundits had scheduled appearances at liberal-leaning colleges canceled in response to threats of violence by primarily off-campus groups, such institutions were charged with political bias. Legislatures in Illinois, Arizona, Tennessee, and Colorado introduced bills designed to ban colleges in those states from disinviting speakers. Others have found various ways of dealing with protests while protecting the speaker. At Middlebury College, for instance, administrators live-streamed the speech of libertarian Charles Murray out of fear that violence would occur when students protested his presence on campus. Others have turned controversial speeches into panel discussions where various viewpoints are addressed.

In the interest of promoting the free exchange of ideas, college professors have the right to make statements and express opinions without fearing retribution. In 1958 as McCarthyism was losing steam, two Columbia University sociologists, Paul F. Lazarsfeld and Wagner Thielens, Jr., surveyed 2,400 social scientists, discovering that more than one in five believed that academic freedom was under serious threat. Neil Gross of Harvard and Solon Simmons of George Mason University reexamined the issue of academic freedom on college campuses, learning that 28 percent believed that academic freedom was being threatened “a lot” or “some.” In an effort to identify the social and political views of college professors, Gross and Simmons subsequently surveyed 1,610 full-time Columbia University faculty. Three-fourths had voted for liberal Barack Obama in 2008, and only 3 percent had voted for conservative John McCain. Members of the group who answered the question were heavily Democratic (203) as opposed to Independent (50) or Republican (7). Only eighteen respondents identified themselves as being pro-life, and only sixteen favored the death penalty.

Critics express concern that some efforts to protect vulnerable and historically marginalized or persecuted groups go too far, punishing constitutionally protected forms of speech and closing off the free exchange of ideas. In Georgia, to pre-empt the posting of hate speech, both Emory University and Wesleyan College attempted to block Yik Yak, a smartphone app that allowed posts to be made anonymously. Greg Lukianoff and Jonathan Haidt (2018) identify the tendency to limit speech in such a fashion as the “coddling of the American mind.” They cite the example of students at Harvard who, in December 2014, asked a law professor to omit teaching the class about rape laws. Some professors protest students’ demand for trigger warnings—for example, giving prior notice that Chinua Achebe’s Things Fall Apart (1958) is about racial violence or that F. Scott Fitzgerald’s The Great Gatsby (1925) is about misogyny and physical violence. They object to treating students with past trauma with “kid gloves” and find such sensitivities to be either highly suspect or too difficult to negotiate. In an anonymous article in a professional journal, one professor wrote that he was afraid to teach because of the tendency of liberal students to pounce on every utterance. Some comedians, including Chris Rock, refuse to appear on college campuses because of restrictions on what they can say. Lukianoff and Haidt note that student speech has also been stifled.

Terms & Concepts

Humanism: Enlightenment belief that reinstated the philosophies of ancient Greece and Rome and emphasized the natural goodness and rational thought of humans.

Libel and slander: Knowingly printing or verbalizing falsehoods with reckless regard for the truth. The courts have consistently held that public figures have less protection than private individuals from either libel or slander.

Microaggression: Term coined in the 1970s by psychiatrist Chester Pierce and adapted to the twenty-first century environment to describe subtle, often unintentional, remarks and behaviors that demonstrate prejudicial preconceptions.

Schenck v. United States (1919): Case that occurred within the context of World War I when the government was particularly sensitive to issues of sedition, espionage, and sabotage. Congress passed the Espionage Act of 1917 to deal with these issues, and Charles Schenck and Elizabeth Baer were accused of violating the act by passing out leaflets that claimed the military draft was a violation of the Thirteenth Amendment’s protection against involuntary servitude. The Supreme Court upheld the act, and Justice Oliver Wendell Holmes issued his famous dictum on the line between free and restricted speech when he compared the leaflet to shouting “Fire!” in a crowded theater when there was no fire.

Sedition: The attempt to overthrow the government or the Constitution through speech, written material, or inflammatory action. The Supreme Court has held that sedition is never protected under the First Amendment. However, the Court has determined that the government has no authority to limit speech just because it is critical of the government or a particular politician.

Texas v. Johnson (1989): Responding to Texas’ attempt to punish Gregory Lee Johnson for burning an American flag in response to detrimental practices of the Reagan administration, the Court upheld Johnson’s action as free speech, proclaiming, “[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Trigger warnings: A statement made by a professor at the beginning of a class that lecture material could contain information or ideas that might be problematic for sensitive individuals. Trigger warnings are often erroneously interpreted to be prohibitions on teaching books that make people uncomfortable.

Bibliography

Chemerinsky, E., & Gillman, H. (2017). Free speech on campus. Yale University Press.

Cole, J. R., Cole, S., & Weiss, C. (2015). Academic freedom: A pilot study of faculty views. In J. Cole and A. Bilgrami, A. (Eds.), Who’s Afraid of Academic Freedom?(pp. 343–394). New York: Columbia University Press.

Combs, L. (2018). Importance of free speech on public campuses and the restriction of free speech on university campuses due to safety concerns. Journal of Law and Education, 47(1), 169–175. Retrieved September 25, 2018, from EBSCO Online Database Education Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=eue&AN=128646504&site=ehost-live

Gross, N., & Simmons, S. (2014). Professors and their politics. Johns Hopkins University Press.

Lawrence, F. M. (2017). The contours of free expression on campus: Free speech, academic freedom, and civility. Liberal Education, 103(2), 14–21. Retrieved September 25, 2018, from EBSCO Online Database Education Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=eue&AN=123748549&site=ehost-live

Lukianoff, G., & Haidt, J. (2018). The coddling of the American mind: How good intentions and bad ideas are setting up a generation for failure. New York: Penguin Random House.

Perez Jr., Juan. (2024). Campus free speech is getting murky for Republican governors. Politico. Retrieved May 3, 2024, from www.politico.com/news/2024/04/27/republican-states-colleges-free-speech-israel-gaza-complicated-00154702

Scruton, R. (2017). The threat of free speech in the university. Modern Age, 59(3), 7–15. Retrieved September 25. 2018, from EBSCO Online Database Education Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=eue&AN=124327116&site=ehost-live

Steinmetz, K., Alter, C., Begley, S., Reilly, K., & Rhodan, M. (2017). The campus culture wars. Time, 190(16/17), 48–55.

Whittington, K. E. (2018). Why universities must defend free speech. Princeton University Press.

Suggested Reading

Ben-Porath, S. R. (2017). Free speech on campus. Philadelphia: University of Pennsylvania Press.

Campus free-speech legislation: History, progress, and problems. (2018). Academe, 104, 38–47. Retrieved January 1, 2019 from EBSCO Online Database Education Source. http://search.ebscohost.com/login.aspx?direct=true&db=eue&AN=131332910&site=ehost-live

The importance of free speech on public campuses and the restriction of free speech on university campuses due to safety concerns. (2018). Journal of Law & Education, 47(1), 169–175. Retrieved January 1, 2019 from EBSCO Online Database Education Source. http://search.ebscohost.com/login.aspx?direct=true&db=eue&AN=128646504&site=ehost-live

Miller, R. A., Guida, T., Smith, S., Ferguson, S. K., & Medina, E. (2018). Free speech tensions: Responding to bias on college and university campuses. Journal of Student Affairs Research & Practice, 55(1), 27–39. Retrieved January 1, 2019 from EBSCO Online Database Education Source. http://search.ebscohost.com/login.aspx?direct=true&db=eue&AN=127643585&site=ehost-live

Reichman, H. (2018). Free speech on campus/free speech on campus. Academe, 104(3), 45–49. Retrieved January 1, 2019 from EBSCO Online Database Education Source. http://search.ebscohost.com/login.aspx?direct=true&db=eue&AN=130033532&site=ehost-live

Waldron, J. (2012). The harm in hate speech. Harvard University Press.