Vol. 28 No. 4 (July 2018) pp. 39-41FREE SPEECH ON CAMPUS, by Erwin Chemerinsky and Howard Gillman. New Haven, CT: Yale University Press, 2017. 216 pp. Cloth $26.00. ISBN: 978-0-300-22656-0.
Reviewed by Eric T. Kasper, Department of Political Science, University of Wisconsin-Eau Claire. Email: kasperet@uwec.edu.
Today there are frequent news stories about free speech conflicts on college campuses. Indeed, whether it is a faculty member who is disciplined for making controversial comments online, students who are reprimanded for protesting on campus, or the additional security measures universities must take to accommodate a provocative speaker, issues of free speech conflicts on college campuses seem to arise on a regular basis. How to protect the freedom of expression while also safeguarding the learning environment and other university functions is something that needs to be addressed by every college and university, public or private.
Given these facts, Chemerinsky and Gillman’s FREE SPEECH ON CAMPUS is a welcome book. Although they begin by reminding us that these free speech battles are nothing new – “controversies over freedom of speech on college campuses have existed as long as there have been college campuses” (p. ix) – they address the unique challenges that this issue presents in the contemporary age.
The book recognizes that disputes over these issues often polarize into two camps: those who think college students today are being “coddled” by a politically correct culture and those who appear to devalue the freedom of expression. Chemerinsky and Gillman think both poles of this debate are misplaced, and they offer a middle ground to simultaneously protect freedom of expression and the learning experiences of students from marginalized groups. 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. But there are steps that campuses can and should take to create inclusive communities where all students feel protected” (p. 19). Although the authors acknowledge that the First Amendment applies solely to public colleges and universities, they also advocate that private campuses should adhere to the same standards (p. xi).
Chemerinsky and Gillman wrote the book after their experiences teaching a freshman seminar on the freedom of speech. They found that between the students in their class and a 2015 Yale survey of college students, students today do not support the freedom of expression fully because they fail to make the connection with this right historically protecting vulnerable populations (pp. 9-10). While this may be true, this premise of their book could be supported by more data than one survey and anecdotes from their class. Nevertheless, assuming that there are students, faculty, and administrators who have less zeal for the freedom of expression than the authors – who classify themselves as “strong free speech advocates” (p. 12) – they lay out the case for vigorously protecting this right, even if it includes protecting some forms of hate speech.
Chapter two explains the importance of the freedom of speech, including how it relates to ensuring the freedom of thought, its relation to democratic self-government, and the problems of censorship. The authors make the point that historically, “censorship has always been on the side of authoritarianism, conformity, ignorance, and the status quo, and advocates for free speech have always been on the side of making societies more democratic, more diverse, more tolerant, more educated, and more open to progress” (p. 27). They then go on to trace the troubled earlier history of the freedom of speech in the U.S., showing how it was not until the last half century that the right received the level of the protection it has now. They provide a comprehensive history of this progression in American politics and in the U.S. Supreme Court, although this background concludes in the early 1970s.
Chapter three is devoted to a history of academic freedom. Chemerinsky and Gillman start by [*40] sketching how historically, higher education was founded much more on indoctrination than free thought. They then explore how this slowly changed, due to organizations such as the Royal Society of London for Improving Knowledge and the American Association of University Professors, and they discuss the important role of the Berkeley Free Speech Movement. Likewise, they describe how the U.S. Supreme Court, in cases like KEYISHIAN V. BOARD OF REGENTS (1967), enshrined academic freedom into the First Amendment’s protections. Where they could go a step farther here, though, is in exploring more recent Court decisions that have largely characterized academic freedom as an institutional right rather than as an individual right.
One of the authors’ most important contributions is also located in chapter three. They draw a distinction on campus between a professional zone (where expression is protected for faculty but requirements can be imposed for responsible discourse and scholarship) and a free speech zone (which deals with expression outside of scholarly and administrative settings where the same free speech rights exist as for society at large) (p. 77). This is an important reminder that universities have an educational mission to fulfill, which requires adherence to certain criteria. Although freedom of expression must still be permitted in the professional zone, it also means that the university may choose what is taught in the curriculum, instructors may impose grading rubrics on students, and departments may make requirements for faculty scholarship. While all of this necessitates privileging some expression over others, it is permissible as long as professional standards are observed. Outside of this context, however, Chemerinsky and Gillman argue that the same freedom of speech for everyone else should apply to members of the campus community. Their next two chapters make clear why this position is constitutionally required on public campuses and why it is a position to be favored on private campuses.
Chapter four explains to the reader the problems of hate speech. Chemerinsky and Gillman are not dismissive of the harms of hate speech, including, for instance, how it can lead to psychological and physical harm, and how it is an affront to human dignity. However, they also point out that every court to consider campus speech codes has found them to violate the First Amendment (p. 82). They correctly explore BEAUHARNAIS V. ILLINOIS (1952), a case that found group libel was not protected by the First Amendment, and CHAPLINSKY V. NEW HAMPSHIRE (1942), which held that fighting words have no free speech protection. Chemerinsky and Gillman then go on to explain that while these cases have never been overruled, they have been ignored or distinguished by the justices to the point that they provide no rationales for the regulation of offensive or hate speech on campus in the modern day. As the authors explain, the Supreme Court has frequently proclaimed in more recent years that offensive and hate speech is constitutionally protected expression (e.g.: TEXAS V. JOHNSON, 1989; SNYDER V. PHELPS, 2011) in the absence of personal defamation or today’s narrower class of fighting words. Chemerinsky and Gillman inform us instead that “protecting hate speech is necessary because the alternative – granting governments the power to punish speakers they don’t like – creates even more harm” (p. 108).
Chapter five, however, explains that college campuses can still do quite a bit to protect both the freedom of speech and those who would be targets of hate speech. Chemerinsky and Gillman describe how the First Amendment does not protect true threats (VIRGINIA V. BLACK, 2003), harassment, destruction of property, or disruption of classes and campus activities. This is followed by a series of what colleges and universities “can” and “can’t” do regarding the restriction of expression. For instance, “a campus can’t prevent protestors from having a meaningful opportunity to get their views across in an effective way,” but “a campus can impose time, place, and manner restrictions on protests for the purpose of preventing protestors from disrupting the normal work of the campus” (p. 123). Likewise, “campuses can create ‘safe spaces’ in educational settings that ensure that individuals feel free to express the widest array of viewpoints, and can support student efforts to [*41] self-organize in ways that reflect shared interests and experiences,” but “campuses can’t use the concept of ‘safe spaces’ to censor the expression of ideas considered too offensive for students to hear” (p. 138). In addition to providing advice, the authors explain the logic and legal reasoning behind their prescriptions.
The multiple recommendations in chapter five provide a self-described roadmap for administrators, faculty, and students alike in navigating what is protected expression and what is not. Chemerinsky and Gillman focus on what campuses need to do to safeguard these rights as they directly relate to people in these groups, and rightfully so, as most of the issues that arise will involve them. A bit more focus, though, on how to handle issues related to speakers from off-campus – including controversial speakers – would be helpful. Likewise, readers would benefit from more discussion on which parts of the campus constitute non-public forums. Nevertheless, the book covers most of the relevant issues in a comprehensive way that should be useful to all members of the campus community.
All told, FREE SPEECH ON CAMPUS is a well-written, valuable, and timely book which meaningfully addresses complex and difficult issues. Chemerinsky and Gillman intersperse their arguments with relevant data and rulings from the U.S. Supreme Court. They provide ways to balance the functioning of the university and the protection of the freedom of expression. It is a worthy read for faculty, students, campus administrators, and anyone who wants to understand the freedom of expression better.
CASES CITED:
BEAUHARNAIS V. ILLINOIS, 343 U.S. 250 (1952).
KEYISHIAN V. BOARD OF REGENTS, 385 U.S. 589 (1967).
SNYDER V. PHELPS, 562 U.S. 443 (2011).
TEXAS V. JOHNSON, 491 U.S. 397 (1989).
VIRGINIA V. BLACK, 538 U.S. 343 (2003).
© Copyright 2018 by author, Eric T. Kasper.
