The issue of free speech is at the forefront of controversy on American campuses today. We are constantly confronted with the question of how best to engage in robust academic discussion while at the same time guarding our students against language that is viewed as excessive, inflammatory, or even bordering on harassment.
Schools across the country have taken a range of positions in attempting to strike a balance for the benefit of their students. In many instances, schools reflect these positions in speech codes, sets of rules designed to curtail speech or stifle expression that some might view as hurtful.
In spite of their best intentions, speech codes are a direct impediment to a full education, in the classical sense. Unfortunately, the “closing of the American mind” is an educational fad largely imposed by those who claim to embrace human diversity but who react with horror upon encountering an actual diversity of ideas. The speech police have imposed a “feelings over thought” hierarchy with consequences that are frequently laughable but also potentially disastrous. Speech codes are a political tool and should been seen as such. Moreover, for those who do not wish to be infringed upon, resistance to these codes is the only rational response.
Drawing the Line on Free Speech
Today, countless colleges are guilty of putting the feelings of their students ahead of the priorities of academia. For instance, many schools only invite outside speakers who meet the ideological terms and conditions set forth by their students. At times, this approach includes declining to welcome certain speakers on campus altogether. The consequence is the creation of restrictions around speech not just from outsiders but from those within the school community whose mode of expression might be viewed as uncivil or obnoxious.
As with any difficult issue, there are two sides to the matter. While some colleges and universities are bending over backwards to protect their students against unpopular ideas, other schools take a more expansive view of what speech should be on their campuses and among their students and faculty. These campuses set their policies accordingly, putting forth the simple idea that if a lecture, speech or rally is not to one's liking, there is no obligation to attend. Any potential exposure to hurtful speech or language may be avoided by those who simply wish to opt out.
Before assessing any speech code, it should be kept in mind that the legal obligations of schools will vary dramatically depending on whether they are private or public institutions. The former have much greater latitude in fashioning codes that create boundaries around "acceptable speech." The latter often do not have this authority because the First Amendment requires a more encompassing understanding of free speech.
Challenging Speech Codes at the University of Chicago
As it happens, it was a private school that most recently placed itself on the side of free speech, setting a positive example for others that favor unfettered educational pursuit. In 2015, the University of Chicago formalized its speech code and set a marker on one end of the spectrum, enshrining an expansive view on the kinds of speech that should and should not be allowed on campus. The University said it came to its conclusion after lengthy discussions and consideration of the differing views on this contentious issue.
Last year, the University of Chicago issued a policy statement that guaranteed “all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn.” In early 2016, the school officially reformed all of its speech codes to be in conformity with this policy statement.
Officials explained that “it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.” Here, Chicago departs almost wholly from those schools that would engage in a balancing test of competing interests, an approach which acknowledges and reflects the desire of students to prevent hate speech or expressions of bigotry.
Importantly, the University of Chicago's maximalist position does not deprive other community members of their right to object and protest. This allowance is crucial to any properly functioning, law-based society as well as to any healthy educational environment. The University openly acknowledged the importance of balance, stating that “[M]embers of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus.”
The University, though, draws the line at protests that might intervene with a speaker or event, consequently depriving others of their right to expression. This seems reasonable on its face. Otherwise, a school's conception of free speech risks being narrowed and hollowed out through what is called the “heckler's veto.” The University of Chicago's policy approach protects any speaker or event whether politically progressive or conservative, and regardless of stance on any given issue.
The Balancing Test
While having cast its lot with the most expansive version of free speech on campus, the University of Chicago points out that their newly revised speech code is not an “anything goes” approach. It noted:
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. The University 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 the University. In addition, the University may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the University.”
These are classic and appropriate limitations on speech and they are nothing new in the legal context. Americans value their rights. However, left unchecked, one form of freedom may threaten to infringe on another. This is why courts routinely engage in “balancing tests” when deciding competing Constitutional issues. The classic formulation of speech limitations is the well-known prohibition against fraudulently shouting "Fire!" in a crowded theater. The limitations that the University of Chicago imposes on its students are modest and in keeping with what the school sees as striking the right balance.
Other colleges and universities will continue to craft their own—at times very different—speech codes in their various attempts to strike what they see as a good balance for their own students. Many schools, of course, will simply keep in place the policies that they have now.
No one knows how much influence the University of Chicago will have on other institutions of higher learning when it comes to speech codes. Some may be moved to, like Chicago, reinforce their commitment free speech. Others may resist this approach by formulating their own, more protective and restrictive speech codes. The issue is certainly at the front of the agenda for many campuses.
In light of this, aspiring college students weighing their options should consider campus speech codes the same way they consider factors like course offerings and academic reputation. This discussion is now a part of campus life. The issue is obviously ongoing and changing. In thinking about it, students will need to apply their own balancing test. If, as a student, you prize free speech and the right to express yourself in a dynamic educational environment, consider a school that embraces and respects these rights.