Recent protests at colleges and universities have exposed the fractured foundation of the prevailing framework for campus speech.
When protesters form a human chain to prevent a student with opposing views from entering their “liberated zone,” is that a violation of campus speech policy? When they plant a large protest flag in the center of the main campus quad, is that protected speech? Why or why not?
Such questions, which have nothing to do with the substance of the protest, beg more fundamental questions: What is the primary purpose of free speech at a university? What role should universities play in the broader free-speech ecosystem?
The prevailing framework for campus speech — exemplified by the Chicago Principles and the Foundation for Individual Rights and Expression (FIRE) — isn’t equipped to answer such questions, largely because it fails to appreciate that freedom of speech is not one right, but two. First, the right to unbridled speech addresses what people are permitted to say when holding the microphone (literally or figuratively); it captures the license to speak one’s mind candidly, even when doing so is likely to offend others. Second, the right to inclusive speech addresses who is able and willing to hold the microphone in the first place; it captures the equal opportunity to contribute to public discourse.
Although both unbridled and inclusive speech are essential for achieving a robust public discourse, it’s impossible to maximize both at once because certain forms of unbridled speech, including slurs, render the public sphere less inclusive. Consequently, universities that fully appreciate only the first of these two freedoms undermine the very goal they seek to promote.
To clarify the problem, here’s a parable that weaves in excerpts from the Chicago Principles to illustrate how a disproportionate emphasis on unbridled speech can impair campus discourse.
The parable of Utopia University
Once upon a time, there was a school called Utopia University, which adopted the core principle of “complete freedom of speech on all subjects.” Utopia’s leadership sought to foster a campus culture in which “concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.”
And things were good. Utopians disagreed about which ideas were true or righteous, of course, but they recognized that all community members must be allowed to speak with candor (within the constraints established by law or for the university to perform its core functions.)
Then, during a global crisis, a feud erupted between two factions at Utopia. These factions increasingly dominated the public discourse, which curdled into a toxic sludge of personal invective and denial of legitimacy to those afflicted by wrongthink.
The number and diversity of Utopians opting into the public discourse dwindled. They were, as always, allowed to speak up, but many — especially those with conflict-averse personalities or who occupied precarious social positions — found the price of engagement too high. The public sphere was reduced to two remnants, each consisting of fierce zealots who policed entry so the purity of their space wouldn’t be tainted by infidels.
And so it was that an institution dedicated to “a lively and fearless freedom of debate and deliberation” inadvertently cultivated a community of self-silencers scurrying stealthily past the central quad, which they rechristened as “the thunderdome” (but only under their breath).
New paradigm for campus speech
The Chicago Principles have been enthusiastically endorsed by FIRE and adopted by more than 100 academic institutions. They dominate the prevailing orthodoxy among campus free-speech advocates, drawing criticism primarily from those who believe that the principles permit too much speech and more must be done to curtail offensive speech.
But what if the core problem with the Chicago Principles is not that they permit too much speech, but that they foster too little? In their laser focus on protecting the rights of the person holding the microphone, the principles fail to protect the public sphere as a communal resource. They insufficiently appreciate that, independent of the substance of public speech, the style of that speech affects others’ willingness to enter the fray.
This distinction between the substance and the style of speech — between what one says and how one says it — forms the bedrock of a new paradigm for campus speech. It pushes toward policies that adopt strong protections vis-a-vis substance while enforcing strong restrictions vis-a-vis style. In this paradigm, community members are permitted to express even controversial or offensive ideas, but, insofar as is feasible, they must do so in a manner that welcomes others to the public discourse.
Why is this nuanced approach necessary? Because just as freedom of speech consists of two distinct rights, it confronts two distinct threats. The first is silencing, which undermines unbridled speech through actions, such as hecklers’ vetoes, that interfere with the rights of individuals holding the microphone. The second is polluting, which undermines inclusive speech through actions, such as ad hominem attacks, that befoul the public sphere. Silencing and polluting compromise (what should be) the primary function of the campus free-speech movement: to foster an inclusive culture for the unbridled exchange of ideas.
Regarding substantive speech, strong protections are required, even for controversial views on third-rail topics such as medical intervention for trans teens, vaccine misinformation and, yes, Israel and Palestine. Unbridled speech is a necessary counterweight to entrenched hierarchies, prevailing dogmas and moral panics — and a primary means through which multicultural societies foster a robust marketplace of ideas. It allows a Galileo to challenge geocentric science and a Gandhi to challenge colonialist ideology.
Strong policies for protecting substantive speech are necessary in part because silencing is so tempting. Moral fervor makes us experience our beliefs as facts. We don’t feel like people on the other side disagree with us on some debatable political issue; it feels like they’re being deliberately obtuse about self-evident truths. Consequently, we support exertions of power — from a formal authority or an influential group — that selectively deny substantive speech rights to people whose views don’t align with our own. We experience such support not as silencing, but as a vital intervention for the true and the good to prevail over the false and the vile.
The pivot from substance to style brings a different calculus: Clear regulations are necessary to ensure that the most aggressive voices can’t drown out other viewpoints. This is where my perspective diverges most sharply from the prevailing orthodoxy in the free speech movement. FIRE President Greg Lukianoff and political commentator Rikki Schlott distilled this orthodoxy last October in “The Canceling of the American Mind,” which offers guidance to people who have been personally insulted or denied equal standing because they are, say, an “anti-Trump libtard” or a “cishetero white woman.” The book advises such individuals to respond with: “Noted, now let’s get back to the actual issue.”
But is that really the campus culture we seek? Is there any compelling moral or civic reason why we should require that the “libtard” in question — say, a supporter of abortion rights — endure personal invective as the price of admission to the public sphere? If sanctions against such polluting styles of speech produced a more inclusive marketplace of ideas, wouldn’t that a be worthwhile tradeoff?
It certainly has evidence to recommend it. The decision to opt out of political discourse has much more to do with the tone of the debate than with its content, and people who are less hostile and more conflict-averse are likelier to opt out. The tendency for women to engage in political debate less than men is linked to women’s greater aversion to uncivil discourse. Consequently, if the public sphere is like the “the thunderdome” in the parable, public discourse will be disproportionately hostile and male.
In short, when considering default policies on campus, the political foundation for substantive speech should be rights, whereas the political foundation for the style of speech should be responsibilities. This framework mitigates the tension in the Chicago Principles between “discussion of ideas” and “civility and mutual respect,” as the former is an issue of substance, whereas the latter is largely an issue of style.
My goal in emphasizing responsibilities isn’t necessarily to make people polite or deferential; if we find certain beliefs or behaviors abhorrent, we’re welcome to say so forcefully. Rather, my goal is to counter the flawed assumption that policies permitting the largest amount of speech will actually produce the most robust public sphere. In reality, the prevailing orthodoxy’s stronger emphasis on unbridled speech than on inclusive speech is self-undermining — it fails at the very goal of bolstering free speech. Maximizing freedom vis-a-vis substance requires restrictions vis-a-vis style.
This rights-and-responsibilities approach should serve as the campuswide default. But campuses also require First Amendment zones — clearly demarcated times and places in which the rules regarding the style of speech are loosened to match those regarding substance. In these opt-in zones, which are separated from the core of campus, people are welcome to speak with a style that dominates or excludes others.
But although such policies may be sensible for the National Mall, they fail as a default for universities — for institutions whose core mission is to create, adjudicate and disseminate knowledge. In service to that mission, universities must set default policies against polluting styles of speech, including not only personal invective (“libtard”) and denial of equal standing (“cishetero”), but also the refusal to share the microphone and the display of controversial symbols without avenues for discussion. From this perspective, the free speech problem with the recent protests is not that the protesters said potentially offensive things, but rather that they brooked no dissent. The campus default must prioritize dialogue.
At a time when America’s legislators are making a mockery of the phrase “the world’s greatest deliberative body,” the proposed rights-and-responsibilities framework can help universities model how a fractured society can cultivate a public discourse that is not only fierce and adversarial, but also inclusive and constructive.
Eli J. Finkel is a professor at Northwestern University, where he is the Morton O. Schapiro Faculty Fellow in the Institute for Policy Research. He is the founding co-director of the Center for Enlightened Disagreement and he author of “The All-Or-Nothing Marriage: How the Best Marriages Work.”
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