Regulating Freedom of Expression on Campus

For several years now, the news has been saturated with coverage of protests against invited speakers, debates over the wisdom of "safe spaces" and "trigger warnings" in the classroom, demands that universities punish those who make offensive comments, and calls to rename university buildings. No segment of the ideological spectrum has been silent. Mockery of millennial student "snow-flakes" is routine in right-wing media, and right-wing personalities like Milo Yiannopoulos and Ben Shapiro have seemed to relish the outrage generated by their mere appearance on campuses. Some more liberal writers like Jonathan Chait have also worried that militant political correctness is compromising intellectual inquiry.¹ Others, however, have called these concerns misdirected.²

Three new books provide comprehensive socio-legal analysis of recent campus speech controversies. The books share the general premise that the treatment of freedom of expression in educational institutions has special significance in a democratic society, and they each provide useful guidelines for how university communities can think through the conflicts named above. In fact, the books display a striking level of consensus regarding the dynamics of these conflicts. At the same time, each author describes the priorities of educational institutions in somewhat different terms.

Erwin Chemerinsky and Howard Gillman contend that "however important free speech principles are in society as a whole, they require even stronger protections in academic settings" (19). They argue that academic institutions must be places where all ideas can and should be debated (51). As a result, their "central thesis is that all ideas and views should be able to be expressed on college campuses, no matter how offensive or how uncomfortable they make people feel" (19).

John Palfrey and Sigal Ben-Porath likewise see academic environments as critical fora for the exchange of the widest range of possible ideas, but they are not true microcosms of society. As Ben-Porath reminds us, their "aims . . . go well beyond the general goals of a democratic republic and it makes sense for them to be organized and managed based on additional principles" (10). Her "inclusive freedom" framework for campus speech is thus a fundamental attempt to balance "the necessity of protecting free speech" while "making sure that all are included in the ensuing conversation" (12). Palfrey's framework is more literally described in terms of diversity concerns, but the conceptual contention is similar. He draws attention to the complementary, rather than contradictory, goals of diversity and free speech, calling diversity "an essential element of freedom of expression" (62).

Overall, the books share the broad goal of defending the ideals of free speech in the campus context while working to reconcile them with the mandate to create more inclusive and equitable campuses. Such a fundamental goal is laudable. At the same time, they reaffirm the soundness of the liberal free speech tradition—a tradition that critics have long contended benefits some speakers at the expense of others. Such defenses of the status quo can feel unduly sanguine in today's fraught political climate. Perhaps the times call for more imaginative solutions when alt-right (or "alt-lite") figures can routinely target campuses for provocations that sometimes turn violent,³ yet faculty (especially those with little job security) are harassed or pressured to resign for otherwise protected speech.⁴

Though it likely was not their choice, Chemerinsky and Gillman's book cover depicts a brick wall on which the title is (rather neatly) spray-painted. This image can be read as a kind of metaphor for how these books address the contemporary debate about campus speech regulation. For all of their insight into recent conflicts, perhaps the books are still operating as if the controversy today is over graffiti on a wall. A critical American studies scholar could thus...