Free Speech on Campus

In a recent Vox article, law professor Robert Post makes the striking claim that “There is no 1st Amendment right to speak on a college campus.” His argument strikes me as spectacularly wrong. Take this paragraph:

“But here we are talking about public discourse: the free flow of ideas in newspapers, in public squares, on debate stages, on theatrical stages, in art galleries and concert halls. Outside of the sphere of public discourse, equality is not so obviously desirable. Consider, for example, doctors and their patients. The law properly does not treat doctors and their patients as equals. We do not apply to doctors sued for malpractice the core First Amendment doctrine that “there is no such thing as false idea.” We hold doctors accountable for their expertise.”

Are newspapers and stages public spaces in a way that campuses are not? Hardly. Both are likely to be privately owned and to restrict access in a range of ways (say, by charging admission). Indeed, up until the 20th Century, American newspapers were partisan propaganda organs loath to give space to rival political views. And today, the dominant trend in all fields of expertise is toward greater status equality. An oncologist will no longer recommend a course of cancer treatment; she will lay out the available options and leave the decision to the patient—a decision for which she will not be held accountable, despite her far greater expertise, even if it is not in the patient’s best interest.

Meanwhile, most universities in the US are by definition and mandate public institutions, with a more explicit mission to function as forums for political debate than virtually any other non-state institution.

But, Post objects,

“universities can and must engage in content discrimination all the time. I subject my students to constant content discrimination. If I am teaching a course on constitutional law, my students had better discuss constitutional law and not the World Series.

Professors are also subject to continual content discrimination in their teaching and their research. If I am hired to teach mathematics, I had better spend my class time talking about my equations and not the behavior of President Donald Trump. If I am being considered for tenure or for a grant, my research will be evaluated for its quality and its potential impact on my discipline. Universities, public or private, could not function if they could not make judgments based on content.”

For a law professor, this is peculiarly fallacious, if not disingenuous. After all, these are professional settings within the university. And of course the discrimination in question is predicated on the airing of ideas to be evaluated. If anything, it reaffirms the right to air those ideas, which of course is formally recognized under the rubric of academic freedom.

Finally, his conclusion is largely unconnected to his precipitous claim that there is *no 1st Amendment right to free speech on campus. He simply counsels that colleges should permit but regulate campus speeches. No kidding. All public forums are regulated; that is what makes them forums. But this has no bearing on whether there is a right of free speech arrogated to speakers who are invited in accordance with such regulations. Surely once this happens, the administration cannot suddenly insist that the speaker say particular things, anymore than they can insist she wear a dress rather than jeans. The rules must be applied consistently, but that is not a 1st Amendment issue. So that discussion is a red herring. Colleges already have rules and procedures for hosting invited speakers; the question is simply whether these rules are adequate and fairly applied. But the presumption behind them is that campuses are precisely the sorts of places where free speech is of utmost importance.

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