Over the last six months, the freedom of speech guaranteed by the First Amendment has emerged as an extraordinarily contentious issue on many university campuses. Last spring, several speakers at commencements across the nation (e.g., former Secretary of State and Stanford Provost Condoleezza Rice at Rutgers University, former UC Berkeley Chancellor Bob Birgeneau at Haverford College) decided not to speak following protests. This fall, significant controversies arose when a hiring decision at one university may have been influenced by a prospective professor’s tweets and when several university leaders articulated views on the relationship between free speech and civil discourse. Given these circumstances, it is a fitting moment to review our traditions of freedom of expression at San Diego State and in the American academy, more generally. They provide important context for understanding these controversies and appropriate responses to them.
Our policy on free expression articulates two essential principles. First, it emphasizes (section 1.1) that freedom of expression is not only protected by the First Amendment, it is essential to our educational and research missions. It is critical to present a range of perspectives so students can understand issues and develop frameworks for thinking about these issues. Likewise, researchers and creative artists must be able to consider a range of possible approaches in highlighting and addressing challenges and problems. In short, freedom of expression has privileged status on a university campus. It is “integral to the mission of the university” and an “inviolate freedom.” This view is consistent with judicial interpretations of the U.S. Constitution (e.g., Brandenburg v. Ohio) that provide extensive protections for free expression.
Second, our policy indicates (sections 2.0 and 3.0) that even though freedom of expression is not an absolute right (e.g., “Reasonable regulations may be designed to avoid disruption of the mission of the university.”), any regulation should “maximize opportunities, in terms of time, place and manner, for free expression.” Our policy emphasizes that regulation should be “content neutral” and “all legal speech, even offensive speech, is permitted.” This second principle is consistent with a long judicial tradition in which speech and expression may be restricted (e.g., restrictions on speech that incites imminent violence), but such restrictions should be limited and narrow.
These principles provide an important framework for understanding regulation of free expression on campus. For example, consider the case of proposed speakers and those who wish to protest those speakers. In our tradition, speakers have a right to speak, even if they present controversial materials, and protesters have a right to protest, even if the motivation for their protest is controversial.
The principles also clarify how the university should respond to protesters who ask that the university ban invited speakers – which happens in highly publicized cases like spring commencement and in a myriad of lesser-known instances. While many protesters claim that a speaker’s appearance implies that the university endorses the speaker’s views, this is not the case. We endorse the speaker’s right to express his or her views and the audience’s right to hear these views. Under the “endorsement” framework, we could never invite speakers the university does not specifically endorse, and this approach would severely restrict potential speakers and our academic discourse. The claim that we endorse the views of all who speak at the university and its corollary that we should rescind invitations to those whose views the university does not endorse are an immediate threat to our core missions of education, research and service.
There are, of course, many complications. For example, if a controversial speaker comes to campus, can a group of protesters “shout down” the speaker? While one might claim that one is simply expressing a viewpoint, shouting down a speaker restricts the speaker’s right to free expression and is addressed in the SDSU student code of conduct. Protesters can ask questions, hold up signs, present alternative speakers and express their own views. They might even shout out a phrase or two during a speaker’s presentation, but completely preventing an invited speaker from speaking at our university is not within our traditions or policies.
A related question concerns whether a group who invites a controversial speaker can be forced to invite another speaker who presents a contrasting view. This is often requested and presented as a compromise position designed to foster open discussion. Forcing someone to invite someone to campus that they do not wish to invite is a restriction of their free expression and inconsistent with our traditions – even if the invitation might accomplish other beneficial objectives.
Important considerations also arise when one considers the relationship between freedom of expression and civil discourse or politeness. This topic is frequently raised by university leaders concerned with campus climate. While there is no question that civility or politeness is very important, it is equally important to recognize that, in our American tradition, the right to freedom of expression is unrelated to civility or politeness. Our university’s protections of expression are “content neutral” and “even offensive speech is permitted.” There are, as discussed above, regulations and constraints on expression, but a requirement for politeness is not one of them.
Even if one grants that impolite speech cannot be a basis for restricting expression, questions regarding when one person’s expression creates an immediate or pervasive threat to another person (e.g., when speech incites imminent violence) are likely to be continuing sources of disagreement on our campuses. In adjudicating such circumstances, we should follow the principle that, if any restriction of expression is necessary, restrictions should be as limited and narrow in scope as possible.
It is likely that some of what I have said will make some happy and anger others. Similarly, it may clarify some issues but not others. In all of these cases, it will continue our powerful tradition of free expression – one that we must protect and nurture so our academic community can continue its important work.