Reinventing the First Amendment in the University

By: Randy E. Barnett

 An Ethical Education: Community and Morality in the Multicultural University, M.N.S. Sellers ed.

Introduction

                  Speech can hurt and hurt badly. For this reason, discussions of offensive speech put defenders of free speech in the difficult position of seeming to favor a kind of conduct that they personally find morally objectionable and even disgusting. Such was the position of those who, for example, defended the constitutional right of American Nazis to march in the predominantly Jewish town of Skokie, Illinois a few years ago.

                 Defending free speech in the setting of a private university is made more difficult by the fact that the First Amendment protects free speech only against governmental interference. Private actors and institutions are free to restrict speech. You are not violating a person's constitutional rights when you ask him to leave your home after he has made an offensive remark. For this reason, no constitutional barrier prevents a private university from regulating and punishing speech deemed to be offensive.

                 For some, the fact that the First Amendment is limited to state action makes the issue easier because it means that private institutions are unencumbered in their ability to root out speech that deeply offends most members of the university community. However, removing the protective legal barrier of the First Amendment poses a most difficult challenge, by putting the persons governing a private university in the position of those who framed the United States Constitution. They must decide whether the regulation of speech by a private university more closely resembles censorship by the government, with all its dangers, or the free exercise of the private rights of individuals to shape their own community free of governmental interference. In other words, in the absence of First Amendment protection, we cannot avoid the theoretical question of why speech deserves protection from the state. Only by answering this question will we be able to conclude that something like a First Amendment should or should not exist within a private university.

                 I will offer examples of two different kinds of arguments concerning the dangers of restrictions on speech. The first kind of argument explains why free speech is a good thing - even when the ideas being expressed arc wrong and even when they are offensive. The second kind of argument explains why coercive regulation of speech is a bad thing - why it is dangerous to create an institutionalized and hierarchical power to control speech. I will then discuss how this analysis may apply to the problem of offensive speech in the university.

I. Arguments for Free Speech

                 A powerful argument in favor of the right of free speech was presented by John Stuart Mill in his nineteenth-century work, On Liberty, but it is a mistake to think that this argument originated with Mill. It can be traced to the fight against religious persecution and in favor of tolerance - a long and bloody struggle in England and Europe that greatly influenced the framers of the United States Constitution. The argument is that the general good is served by protecting the freedom to express one s religious and other convictions, whether these convictions are true and therefore good, or false and therefore evil.

                 The argument begins by stressing the undeniable fact of human fallibility. The erroneous suppression of an unpopular but true idea may deprive society of the benefits of knowing the truth. This is no mere theoretical possibility. Authorities charged with policing ideas as well as the general public can be and often are mistaken - even when they are very certain in their convictions - and great harm is done to the members of any society in which truth is suppressed. Mill offered two examples of what he believed were such errors: the execution of Socrates for the crime of teaching immorality and corrupting youth, and the crucifixion of Jesus.

                 Even when an expressed idea is false, Mill maintains, society pays a high price for its suppression. Although a person can believe the right things, he argues, persons cannot fully understand and appreciate their own beliefs unless confronted with those who persuasively express disagreement. Only when they are effectively challenged will most people examine the views they unthinkingly hold and strive to fully comprehend why their beliefs are true. Thomas Aquinas, for example, defended the right of the clergy to read heretical writings on the grounds that only by confronting these untrue arguments can their own reason and faith be improved.

                 Moreover, dispassionate or polite "academic" disagreement is not enough to make people come to grips with their most basic beliefs. Most people need to be emotionally as well as intellectually provoked before they are willing to set aside their day-to-day pursuits in order to consider the basic truths they have been raised to accept. In this way dissent - even hateful dissent - serves to temper and strengthen the received wisdom and the resolve of people to continue accepting this wisdom as true.

                 Paradoxically, then, the open expression of hateful ideas can play a more constructive role in improving the general moral climate than when such sentiments are driven underground only to fester in secret as well as be ignored by those who complacently believe the surface appearance of moral behavior. Perhaps it is no coincidence that hateful speech becomes an acute problem when the hard-won moral truths of one generation have become mere bloodless pieties to the next. In this regard, hate speech can be viewed as a vaccine that can provoke an immune response from the social body in which it is injected. We inject polio viruses into an otherwise health body precisely to strengthen it - because we want to prevent, not contract, polio.

II. Arguments Against Regulation

                 Let me now turn my attention to arguments against the regulation of speech. These arguments begin with the assumption of human fallibility and add to it the increased harm created by institutionalized coercion. In particular, they focus on the twin problems of enforcement error and enforcement abuse.

                 By drastically increasing the severity of a sanction, the use of coercion increases the harm done to the innocent by mistake. This is the problem of enforcement error. The existence of this serious problem provides a powerful argument against the death penalty and, at a minimum, favors elaborate procedures to protect the innocent from wrongful punishment. The problem of enforcement error is one reason why we place the burden of proof on the government and require prosecutors to prove a defendant guilty beyond a reasonable doubt.

                 The problem of enforcement error is acute in the area of speech. If history demonstrates nothing else, it shows that mistakes are likely to be made when authorities are given the power to regulate speech and their use of coercion will drastically increase the harm inflicted upon the innocent by these mistakes.

The problem of enforcement error assumes that those charged with doing the enforcing are acting in good faith although mistakenly. Unfortunately, we know all too well that those entrusted with the powers to coerce are susceptible to abusing these powers and persecuting dissenters merely for disagreeing with the prevailing view or even for other more self-interested reasons. This is the problem of enforcement abuse.

                 The political philosophy known as Liberalism has attempted to address the twin problems of enforcement error and abuse incident to legal coercion by adopting procedural and formal standards associated with what is called the Rule of Law. The use of coercion by government is to be regulated by law - meaning, at a minimum, publicized general standards of conduct that people are able to understand and adhere to before they act. This formal requirement of "legality" serves at least two purposes: first, understandable rules announced in advance enable people to avoid punishment by following the rules. Second, general rules that are publicized in advance of a dispute permit outsiders to judge whether those doing the enforcement are either mistaken or abusing their powers.

III. Free Speech in the University

                 With this analysis in mind, we must now ask whether a private university is subject to the same dangers when it attempts to regulate speech that have long been recognized as attaching to government. Or is the university more like the family or a private association where the mother and father can regulate the conduct - including the speech - of the children in their charger I don't think there is a simple answer to this question. In my view, the university shares aspects of both types of institutions and therein lies the seeds of the current controversies over the regulation of so-called hate speech.

                 Universities are inherently different from government in that the cost of exit is quite low. The university does not claim a monopoly jurisdiction over large tracts of land as does the government of the United States. Choosing one's university or transferring out of one is a much lower cost transaction than leaving one's country. Private universities also lack the power to tax. These differences argue against extending the reach of the actual First Amendment to protect speakers on campus from regulation from the private university. Moreover, the dangers of permitting government intrusions into the operation of the university are manifest. Indeed, because the integrity of the university is easily threatened by the state, the First Amendment has been interpreted, properly in my view, as protecting the rights of the university from interference by government.

                 On the other hand, there are several important similarities between the university and the state - similarities that argue in favor of reinventing the First Amendment within the university. First, a university is unavoidably bureaucratic and hierarchical. Those responsible for its administration are necessarily distanced from those who are subject to its regulation. Like a legal system and unlike a parent, an administration lacks any direct knowledge of the actions of its constituents and for this reason is vulnerable to making mistakes. Second, the university can be as political as any state institution. This makes it vulnerable to enormous temptations to abuse its powers in pursuit of a political agenda. Third, the sanctions imposed by a university can be extremely painful. The stigma of being expelled from a university often exceeds that of being convicted of a criminal misdemeanor and, perhaps, even some felonies. For this reason, the injuries imposed by enforcement error and abuse are great.

                 Moreover, the university's two-fold mission of education and research places a tremendous premium on the value of free speech. Its educational mission means that people must be exposed to erroneous beliefs in order to be better able to appreciate correct beliefs. The university is the paradigm of a community that benefits from the robust debate about ideas that Mill so eloquently defended. Hateful ideas cannot be cither ignored or simply condemned. They must be forcefully presented to challenge and provoke students into not merely understanding that they are wrong, but why they are wrong. Moreover, the research mission of those in the university is to pursue truth, especially truths that run counter to the common opinion of both intellectuals and the general public. Many of the ideas pursued by academics might seem hateful to a majority who believe otherwise.

                 Finally, I am highly skeptical that we can effectively combat the dangers of regulating speech by resorting to procedural protections of the sort associated with the rule of law for at least two reasons. First, it has proven impossible to define offensive speech with sufficient precision to put people on notice that they are acting illegally and to enable us to detect enforcement error and abuse. In the absence of clear-cut guidelines, the robust exchange of opinion inside and outside of the classroom is certain to be jeopardized.

Second, procedural protections are most effective when there is an overwhelming consensus that a certain type of conduct - such as murder or rape - is wrong, and when we must determine whether or not a particular person has performed the wrongful act. With speech, however, in addition to the problem of ascertaining the facts, there is the problem of determining whether the type of conduct engaged in is or is not the sort of action that ought to be regulated.

IV. Alternatives to Regulation

                 These then are some reasons why a private university ought to reinvent its own version of the First Amendment. If we reject the formal and bureaucratic regulation of offensive speech, is a community powerless to respond to incidents of hate speech? I think not. If the university community is truly a community, then it has other means at its disposal. People who engage in offensive conduct can and should be publicly condemned as well as shunned. Where a consensus exists that a person has acted in a grossly immoral manner, there arc many ways to make such a person's life miserable.

                 But this requires that people take it upon themselves to act as a community. Forcing people to take personal responsibility for sanctioning offensive conduct - rather than simply letting an administrative bureaucracy do the dirty work - is essential for the development of a true community. Where an institution is so large or so heterogeneous that a bottom-up approach is impractical, there is reason to doubt that such an institution can be a true community, and in these cases the top-down regulation of speech will usually lead to the sorts of error and abuse that only the right of free speech can prevent.

                 Moreover, when hate speech takes the form of conduct that is generally prohibited by the university regardless of content, such as the defacement of property or the disruption of classes or meetings, such conduct can be formally sanctioned by university procedures without many of the risks associated with policing speech for offensiveness. Personal harassment, such as abusive or threatening phone calls and notes, may also fall into this category.

                 Finally, I wish to mention one further danger of regulating speech in the university. A general acceptance of such regulation in this sort of private but still impersonal, hierarchical, and bureaucratic setting, is quite likely to lead to acceptance of regulating speech in the public sphere. There is, in short, both a "legality" and a "morality" of free speech. We may well find that preserving the legality of free speech against abuses by government requires the preservation of an underlying morality of free speech in such private institutions as the university. For once the morality of free speech is sufficiently eroded there, the legality of free speech will not last long elsewhere.

                 Eroding the morality of free speech in, of all places, the institution where free speech is central to intellectual inquiry poses a grave risk to the legality of free speech outside the university. By underestimating the connection between legal and moral norms, the assumption that free speech in the university - and especially in a law school - is completely unrelated to the First Amendment protection of free speech is perhaps too simple after all.