Free Speech, Civility, and Censorship in Education
Free Speech, Civility, and Censorship in Education
- Josh CorngoldJosh CorngoldThe University of Tulsa
Besides being protected by the First Amendment, the right of students and faculty to express different ideas and opinions—even discomfiting ideas and opinions—is central to the academic mission of schools, colleges, and universities. Two familiar arguments articulated by John Stuart Mill underscore this point: First, the dynamic clash of contrary ideas offers the best prospect we have of arriving at the “whole truth” about any complex subject. Second, unless it is subject to periodic questioning and critique, any established and received bit of wisdom “will be held in the manner of a prejudice with little comprehension or feeling of its rational grounds.”
These arguments notwithstanding, heated debates persist as to the proper bounds of free speech in educational institutions dedicated to open inquiry and the examination of multiple viewpoints. Two distinct positions provide us with a useful framework for analyzing many of these debates. The libertarian position rejects regulation of campus speech—except in extreme cases of speech that invade the rights of individuals or small specific groups of people—while instead championing a maximally free marketplace of ideas. The liberal democratic position, however, proposes that, in the interest of scholarly objectivity and rational autonomy, verbal interaction that denigrates or stigmatizes others on account of ascriptive characteristics such as gender, race, ethnicity, religion, or sexual orientation should be constrained in higher education. Adherents to the libertarian position oppose the implementation of campus hate speech codes on the grounds that such codes violate First Amendment principles and are not an effective bulwark against prejudice, discrimination, and inequality. Adherents to the liberal democratic position support narrowly tailored speech codes that formally sanction slurs, “fighting words,” and the like, but they generally believe that most of the work of regulating abusive speech should occur through the informal enforcement of new “norms of civility” on campus.
Although these two positions constitute a major fault line in debates over campus speech, they do not capture the range of standpoints taken by participants in the debates. To cite one noteworthy example, some scholars, in the name of what they refer to as “an affirmative action pedagogy,” call for broader restrictions on speech (particularly classroom speech) than either the libertarian or liberal democratic positions endorse.
- Curriculum and Pedagogy
- Educational Politics and Policy
- Educational Purposes and Ideals
- Educational Theories and Philosophies
- Education and Society
Point of Departure: J. S. Mill’s “On Liberty”
What are the proper bounds of free speech in educational institutions dedicated to open inquiry and the examination of multiple viewpoints? To this day, many scholarly analyses of this question take their point of departure from John Stuart Mill’s 1859 essay, “On Liberty.” In Chapter II of the essay, Mill defends, from a few different angles, the freedom of individuals to express their ideas and convictions openly. To paraphrase:
An opinion that is silenced may, for all we know, turn out to be true.
Even if the silenced opinion is not completely true, it still may contain “a portion of the truth”; and since the “prevailing opinion” rarely constitutes the “whole truth,” it is only through the “collision of adverse opinions” that the rest of the truth will emerge.
Even if the prevailing opinion constitutes the whole truth, unless it is periodically subject to spirited questioning and critique, it will “be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds.”
Relatedly, absent such questioning and critique the meaning of a doctrine will be “lost or enfeebled”; the doctrine itself will become mere “dogma,” asserted without conviction and without reason by its adherents. (Mill, 1859/2002, p. 54)
For Mill, freedom of expression and the collision of diverse ideas and perspectives drive the pursuit of knowledge. Both lead to new insights, guard against complacent attachment to conventional wisdom, and help to uncover the rational grounds for and meaning of doctrines that are already well established, but in danger of losing their vitality. So valuable is the expression of contrary beliefs, according to Mill (1859/2002), that in cases where “opponents of . . . important truths do not exist, it is indispensable to imagine them, and supply them with the strongest arguments which the most skillful devil’s advocate can conjure up” (p. 39).
Mill’s arguments on behalf of “liberty of thought and discussion” underlie the principle of academic freedom—one of the guiding principles of higher education in liberal democratic societies (see Colby et al., 2007, pp. 62–65). In the interest of furthering the pursuit of knowledge, academic freedom affords faculty and students extensive latitude to explore, pursue, develop, and express ideas, including contentious ideas. Yet this is not to suggest that faculty and students enjoy limitless freedom. In their scholarly activity, faculty and students are accountable to the standards of particular disciplines and to general principles of academic integrity that govern the practice of scholarship. With regard to the content of their courses, faculty are further bound by the curricular needs of their departments and institutions. And with regard to their methods of teaching, faculty have an obligation to provide evidence for their own assertions, to give serious consideration to other points of view, and to otherwise respect the intellectual autonomy of their students. That said, within such limits, faculty and students still have substantial freedom to pursue various lines of inquiry and express their ideas and opinions openly. Such freedom is considered vital to the research and educational mission of the university.
Mill (1859/2002) himself set limits on free speech—and other civil liberties—with his “one very simple principle” (what has come to be called “the harm principle”), which states: “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” (p. 11). Mill’s one simple principle provides a rough sketch of boundaries of freedom in a society that places great emphasis on personal autonomy. It tells us that there are very strict limits to state interference in the lives of individuals, and the range of conduct that is to be tolerated by the state is very broad. The limit to such toleration is reached when the actions of any individual present a credible threat to another individual or a group of people, transgressing their own rights and freedoms in some way. This way of drawing the limits of freedom brings with it difficulties and complications. In practice, the harm principle is not nearly as “simple” as Mill suggests. While it outlines, in a crude way, certain limits on individual liberties, it also raises a number of questions and potential objections. In particular cases, it is sometimes far from clear whether an individual’s actions are harmful, or harmful enough to warrant governmental coercion. Under conditions of pluralism, there are, almost by definition, a lot of different ideas as to what exactly constitutes harm. To be sure, there will also be areas of wide agreement in society about particularly egregious harms—cases of physical and sexual abuse, as well as the distribution of visual material depicting such abuse—immediately come to mind here. Yet in other cases—certain cases of conduct alleged to cause psychological harm, or harm to people’s dignity or social standing, for instance—the assessment of harm will vary widely among individuals and groups.
For his part, Mill defined harmful actions, very narrowly, as actions that pose a direct and immediate threat to the rights of others. Few speech acts would seem to qualify as harmful by this definition. To clarify by way of example, Mill explains that an individual should be allowed to write an editorial claiming that corn dealers starve the poor. However, that individual should not be allowed to express the same view orally, to an angry and excitable mob, which is assembled outside the corn dealer’s house.1 The difference, here, is that the latter expression is likely to inspire “a positive instigation to some mischievous act” (Mill, 1859/2002, p. 57). It poses a direct and immediate threat to the rights, and indeed the life, of the corn dealer. Mill’s example indicates that he intended the harm principle to be invoked under very limited circumstances.
As will become clear in the discussion that follows, some contemporary scholars and commentators also define the limits of permissible speech—both in higher education and in other social settings—very narrowly, if not quite as narrowly as Mill. Others call for more significant constraints on expression, particularly in the academy. Before examining these different views, a brief contextual note is in order. While a number of the issues outlined below broadly apply to colleges and universities internationally, the discussion of hate speech restrictions focuses narrowly on American campuses. Unlike in most liberal democracies, where hate speech is prohibited by law, such speech is legally protected in the United States, except in narrowly defined cases involving immediate incitement to violence or lawless action, or “true threats” to others’ safety. This has prompted some scholars and commentators to call for concerted efforts to regulate hate speech through informal, non-legalistic means.
A Framework for Understanding Debates Over Campus Speech
The Libertarian Position
Elizabeth Anderson (1995), in an influential essay, contrasted the libertarian position and liberal democratic position in debates over the proper extent of free expression in the academy. Her distinction provided a useful framework for understanding these ongoing debates and is worth examining at some length. The fallback stance of the libertarian position is to reject regulation of campus speech and instead to champion a maximally free marketplace of ideas. This position relies chiefly upon two lines of argument. The first, echoing Mill, is that knowledge and truth thrive best in a social environment characterized by the unencumbered and unfiltered exchange of thoughts, beliefs, and perspectives. Ostensibly, in such a milieu, false statements crumble under the weight of withering criticism. Unsubstantiated beliefs face rigorous challenges, either to be discounted or to emerge on firmer evidentiary ground. Unexamined assumptions are brought into the open, raising new doubts about conventional understandings. Promising ideas are put to the dialogic test, strengthened, and tested again and again in a continuous process of refinement. Even firmly established conclusions are subject to periodic challenges to ensure they remain sound and their rational bases continue to be well understood and appreciated by each successive community of inquirers.
The second line of argument upon which the libertarian position relies has roots in Kantian ethics: respect for the rational autonomy of persons requires the unfiltered exchange of thoughts and ideas. Rationally autonomous individuals, by definition, think for themselves. They form and revise their own beliefs in light of wide-ranging considerations, divergent viewpoints, and evolving knowledge. They consistently rely upon their own critical faculties, understanding, and judgment rather than unreflectively accepting the conclusions of others. By contrast, when authorities compel individuals to accept certain beliefs on threat of punishment, or persuade them to do so in ways that circumvent their own critical faculties, this constitutes a violation of their rational autonomy. Censoring speech is one way authorities seek to exert such illegitimate persuasion. (Issuing propaganda, less germane to this article, is another.) Censorship is frequently defended on paternalistic grounds (e.g., it is necessary to counter the spread of dangerous ideas and dark forces in society). Yet in any community that commits to respecting the rational autonomy of its members this and other justifications for censorship will founder. Restricting a person’s access to information, perspectives, or ideas that they may, upon critical reflection, find compelling undermines their rational autonomy. It supplants the independent judgment of the individual with the preferences of the censoring authority.
Armed with these two arguments, the libertarian position champions freewheeling discussion in the academy, while decrying content and viewpoint restrictions and denouncing efforts to enforce civility norms. To the extent that it exists at all, regulation of campus speech should be confined to speech that invades the rights of individuals or small specific groups of people—such as real threats of bodily harm; incitations to violence that are likely to provoke an attack (recall Mill’s corn dealers example); severe, pervasive, and targeted harassment that inhibits the recipient(s) from fully participating in the university community; libel; and blackmail. Hate speech that denigrates some broader class of persons—including misogynistic, racist, xenophobic, homophobic, and transphobic speech—should be allowed, however grudgingly. Distressing and offensive as it may be, the effort to curb such speech through sanctions either formal (e.g., campus speech codes) or informal (e.g., interrupting bigoted speakers) runs afoul of the two lines of argument outlined. What is called for here is not censorship, but further discussion and debate that exposes the flaws of the speech in question. Those who feel aggrieved by another’s words must toughen up, steel their resolve, and (re)enter the discursive fray with the most powerful responses they can muster. In sum, the libertarian position maintains that combativeness, incivility, and rancor are part and parcel of any free and open campus speech environment. This rough and tumble state of affairs makes fertile ground for the rigorous exchange of thoughts and ideas, which in turn advances knowledge. Policing campus speech, for any reason other than protecting individuals or small specific groups from imminent bodily harm, subverts these ends.
Libertarian Opposition to Speech Codes
In the United States, the libertarian position has found voice in statements issued by some leading academic and legal organizations. The century-old American Association for University Professors2 (AAUP, 1994) adopted its communique, “On Freedom of Expression and Campus Speech Codes,” at a time when formal codes prohibiting bigoted speech were proliferating on American college and university campuses. Written in a nuanced, dialogical manner, the AAUP statement at points appears to diverge from the libertarian orthodoxy on free expression. After describing gains in inclusiveness and diversity in academia as “recent, modest, and tenuous,” the statement acknowledges that hateful speech threatens to undo these gains by contributing to a climate of hostility, fear, and intimidation that is “inimical to learning” (AAUP, 1994). Yet, in true libertarian fashion, the statement forcefully denies that colleges and universities should attempt to regulate speech in response. “On a campus that is free and open,” it declares, “no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed” (AAUP, 1994). From the AAUP’s standpoint, trying to demarcate the boundary between acceptable and unacceptable speech is a perilous endeavor, one that is altogether inconsistent with academic inquiry and the examination, transmission, and expansion of knowledge. Other, less blunt tools exist for combatting intolerance, hostility, and prejudice on campus. College and university personnel should enforce rules proscribing various forms of misconduct including “defacing property, physical intimidation or harassment, or disrupting activities” (AAUP, 1994, emphasis added). They should offer curricular and cocurricular programs that increase awareness of diversity and that promote respect across lines of difference. They should serve as exemplars of understanding, tolerance, and ethical behavior. And they should forcefully speak out against “serious breaches of civility” (AAUP, 1994). Yet, in deference to the core academic mission of colleges and universities, they should not seek to limit the expression of ideas, however repugnant those ideas may be.
Like the AAUP, the American Civil Liberties Union (ACLU)3 has been a mouthpiece for the libertarian position on free speech. In the late 1970s, the ACLU gained notoriety for defending, on First Amendment grounds, the right of a Nazi group to march through Skokie, Illinois, a Chicago area suburb inhabited by many Jews and Holocaust survivors. More recently, in 2017 the organization attracted condemnation after it filed a lawsuit against the city of Charlottesville, Virginia, to allow far-right White nationalists to hold a demonstration downtown. The subsequent “Unite the Right” rally erupted into chaos and violence, culminating in the death of 32-year-old anti-racist activist Heather Heyer at the hands of a 20-year-old White supremacist who rammed his car into a crowd of counterprotesters. Although the tragedy in Charlottesville prompted discussion within the ACLU (2018) about how its free speech advocacy may conflict with its work to advance equality, pursue racial justice, protect reproductive freedom, and so on, the organization ultimately reaffirmed its commitment to defend the First Amendment rights of “even the most repugnant speakers—including White supremacists.”
The ACLU’s unyielding defense of freedom of expression is also evident in its decades-long effort to oppose the implementation of anti-hate speech codes on college and university campuses throughout the United States. In the late 1980s, it filed a successful lawsuit against the University of Michigan, one of the first schools to adopt such a code. The “Policy on Discrimination and Discriminatory Harassment of Students in the University Environment”—the name given to the Michigan speech code—was enacted in the wake of a series of inflammatory racist incidents on campus. These included the distribution of a flier announcing “open season” on African Americans (who were referred to as “saucer lips,” “porch monkeys,” and “jigaboos”), the distribution of another flier proclaiming “Niggers get off campus” and “Darkies don’t belong in classrooms—they belong hanging from trees,” the broadcasting of racist jokes on the campus radio station, and the display of a Ku Klux Klan uniform from a dorm room window during a student-led anti-hate demonstration (Doe v. University of Michigan, 1989; see also Chemerinksy & Gillman, 2017). The policy that this paroxysm of campus racism gave rise to was sweeping: it applied in a wide range of settings (from dorms and dining halls to academic spaces and recreation facilities), and it subjected persons to discipline for “any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status” (Doe v. University of Michigan, 1989). Among those who felt aggrieved by the policy was John Doe, a graduate student and instructor in biopsychology and the anonymous plaintiff in the lawsuit that the ACLU filed against the University. The lawsuit argued that since some of the more controversial theories in biopsychology—particularly those proposing biologically-based gender and racial differences—might be deemed “sexist” or “racist” by some members of the university community, the policy effectively chilled Doe’s right to freely and openly discuss various lines of research pertinent to his field of study. The district judge in the case ruled in Doe’s favor—finding the policy to be unconstitutional on grounds of its vagueness (i.e., it failed to specify with any precision what is prohibited and what is allowed), overbreadth (i.e., it prohibited and chilled constitutionally protected speech and conduct), and embrace of viewpoint discrimination (i.e., it punished the expression of certain opinions, ideas, or perspectives that disagreed with the favored messages university officials sought to convey).
Nadine Strossen (1997), Professor of Law, Emerita at New York Law School and the first woman to serve as president of the ACLU (from 1991 to 2008), contended that the ACLU’s ongoing opposition to the enactment of speech codes at the University of Michigan and several other campuses should not be read as a sign that the organization is less committed to rights of equality and nondiscrimination than to free speech rights. Strossen emphasized that after sustained analysis, the ACLU concluded—for reasons both principled and pragmatic—that speech codes are not an effective means of protecting any of these rights. Speech codes, she asserts, violate two core First Amendment principles, enshrined in the extensive history of free speech jurisprudence in the United States. The first of these principles is that so long as it does not invade the rights of individuals—for instance, by subjecting them to harassment, intimidation, privacy invasion, or real threats of physical violence—even deeply offensive speech must be protected. The second principle, which came to the fore in the Doe v. University of Michigan decision, is captured in the phrase “viewpoint neutrality.” It stresses that speech cannot be suppressed on the basis that it expresses a viewpoint disfavored by the majority. Both of these principles cohere seamlessly with the libertarian position on free expression in the academy.
Besides being incompatible with First Amendment principles, Strossen (1997) contended, campus hate speech codes are not an effective bulwark against prejudice, discrimination, and inequality. On her account, suppressing hate speech leads to a number of deleterious consequences. It gives unnecessary ammunition to bigots, who come to be viewed in some circles as free speech crusaders righteously resisting tyrannical authorities. It spurs the more enterprising among them to sugarcoat their blatant prejudices, in hopes that subtle forms of bigotry prove more palatable to the masses. It pushes patently intolerant ideas underground where they are less likely to be challenged and more likely to take on increasingly extreme forms. It tends to penalize members of vulnerable groups. (As Strossen noted, speech by and in support of African American, Jewish, and Asian American students was disproportionately punished under the University of Michigan policy during the eighteen or so months it was enforced from 1988 to 1989.) In addition, according to Strossen (1997), censoring hate speech feeds into insidious “paternalistic stereotypes” (p. 37) that minority communities need protection from offensive statements because they otherwise lack what it takes to persevere through such adversity. Such censorship also deprives civil rights organizations of an important advocacy tool, since speech that is intended to advance the interests of marginalized groups tends to be disproportionately targeted for censorship. And it hampers frank discussion, thereby exacerbating tensions among different groups.
In sum, Strossen (1997) suggested, speech codes offer a band-aid solution to the problems of prejudice, discrimination, and inequality. They do little to address the attitudes, behaviors, and social practices that lie at the root of these problems. Consistent with this conclusion, the ACLU like the AAUP recommends that higher education institutions implement a range of non-censorial measures to promote diversity, equity, and inclusion on campus. These include communicating through multiple channels the institution’s intention to root out bigotry and bias in all of its forms; recruiting a diverse student body, faculty, and administrative staff to alleviate social isolation and promote integration; requiring courses and co-curricular programs in prejudice reduction; revising the curriculum and co-curriculum to better represent the contributions and perspectives of different groups; tackling de facto segregation in residence halls and elsewhere on campus; and taking other steps, as needed, to ensure all members of the university community have an opportunity to participate fully and equally in the life of the institution. As for how to handle hate speech when it surfaces on campus, the ACLU like the AAUP considers counterspeech to be the appropriate response.
Speech Code Proponents
Due in no small part to the ACLU’s participation in successful legal action against the University of Michigan and other institutions of higher education (see, for example, UWM Post, Inc v. Board of Regents, 1991; Wu v. University of Conn., 1989), policies proscribing hate speech are rarely enforced by litigation- and publicity-averse university authorities. Yet, as Jon B. Gould (2005) noted in his empirical study of hate speech regulation, the number of campuses that have adopted speech codes—including what Gould deemed “constitutionally suspect” codes forbidding “offensive speech”—has grown considerably in the time since the Doe v. University of Michigan decision. By the late 1990s, he estimates, nearly one half of all colleges and universities in the United States had enacted speech codes, in spite of a series of unfavorable court rulings. This untrammeled growth has had a pronounced impact on what Gould referred to as the “informal law,” or the social norms and ethical beliefs that guide individuals’ behavior, with respect to hate speech in higher education and civil society more broadly. Even without enforcement of punitive measures, speech codes have been very effective in establishing a new standard for acceptable conduct—what many administrators label a “culture of civility”—both on and off campus. As evidence, Gould pointed to a slew of public opinion surveys, which show upwards of 60% of respondents approve of hate speech prohibitions on campus, online, and in other venues and outlets. In sum, as Gould (2005) wrote, “without a court case won or a statute passed, the bounds of free speech have been reinterpreted and a new norm spread in civil society” (p. 175).
What Gould identified as a popular preference for regulating hate speech both on and off campus has been helped along by a growing scholarly literature in support of such regulation. The most thought-provoking arguments from this literature generally fall under two types: those repudiating claims for the discursive value of hate speech and those attesting to the significant harms it inflicts on marginalized and vulnerable members of society. Notable versions of both types of argument can be found in Jeremy Waldron (2012). Waldron took up Mill’s justifications for expansive freedom of expression, ultimately concluding that these justifications fail to make a convincing case for toleration of hate speech. With respect to Mill’s notion that the expression and clash of diverse viewpoints enriches the marketplace of ideas, thereby enabling the pursuit of truth, Waldron responded that when it comes to extremist bigotry and prejudice, this notion falls flat. Many of the “ideas” expressed in hate speech—such as that “non-Aryans” belong to inferior, subhuman races—are so thoroughly and decisively debunked that debating these ideas is simply “no longer necessary to ascertain the truth” (Waldron, 2012, p. 193). Of course, for Mill (1859/2002), freedom to express unpopular, even discredited opinions is not just necessary to enable the pursuit of truth; it is also necessary to secure the “intelligent and living apprehension of . . . truth” into the future (p. 45). Mill insisted that even those settled doctrines that are no longer open to serious dispute should be exposed to periodic challenges, for when people are pressed to explain and defend those doctrines in the face of such challenges, it invigorates their understanding. On this point, Waldron takes his departure from Mill as well. If society ever needed recurring doses of hate speech to enliven people’s egalitarian convictions, Waldron (2012) suggested, it should be well past that point in the 21st century, especially considering the injuries hate speech inflicts on vulnerable minorities.
Chief among those injuries, according to Waldron, is the damage done to the dignity of the targets of hate speech. Human dignity refers to one’s basic status as a person of equal worth in society, who is just as entitled to security and the protection of one’s rights as any other person. To have dignity is to have some assurance that one can go about one’s affairs without being subjected to animosity, violence, discrimination, and marginalization. Hate speech, by design, seeks to degrade the dignity of its targets, “both in their own eyes and in the eyes of other members of society” (Waldron, 2012, p. 5). It broadcasts the message that members of particular minority communities are inferior and unwelcome. It aims to diminish their reputation, social standing, and sense of belonging in a society of supposed equals.
In highlighting the significance of the dignitarian harm inflicted by hate speech, Waldron distinguished this harm from what is generally understood by the phrase “being offended.” Being offended is an affective and subjective state. It involves experiencing feelings of shock, anguish, indignation, and distress. However deeply felt and justified these feelings may be, preventing offense is not an appropriate matter of legal attention or regulation in a free society according to Waldron (2012). Of course, as he duly acknowledged, hate speech typically has the effect of deeply offending—in this sense of eliciting intense feelings of outrage and distress among—its targets and their allies. Yet, by Waldron’s account, considerably more is at stake than the arousal of these feelings. As Waldron (2012) wrote, “A person’s dignity . . . has to do with how things are with respect to them in society, not with how things feel to them” (p. 106, emphasis added). The dignitary harm inflicted by hate speech amounts to an objective diminution of its victims’ reputation and status as coequal citizens. Their basic standing in society is attenuated, and along with it, the assurance they once had of being treated decently and respectfully by others. This nefarious impact on the dignity of vulnerable minorities—rather than any injury to their feelings—is what makes formal sanctions against hate speech appropriate, according to Waldron.
Other proponents of regulation, including legal scholars specializing in critical race theory, draw attention to different harms associated with hate speech. For Mari J. Matsuda (1993) and Richard Delgado (1993), the emotional distress that it produces, in and of itself, is severe and debilitating enough to make hate speech intolerable. Delgado (1993) outlined the dire psychological and physical consequences on members of targeted groups. Hate speech, Delgado (1993) pointed out, elicits “feelings of humiliation, isolation, and self-hatred” as well as a prevailing sense of ambivalence about their “self-worth and identity” (p. 91). It magnifies individuals’ experiences with stigmatization from the past, thereby inflicting deep and lasting emotional wounds. It also contributes to a range of maladies including chronic stress, mental illness, drug and alcohol abuse, elevated blood pressure, and increased risk of stroke. Matsuda (1993) added that hate speech is connected to other afflictions such as “fear in the gut, rapid pulse rate and difficulty in breathing, nightmares, post-traumatic stress disorder, hypertension, psychosis, and suicide” (p. 24). In making the case for legal restrictions on hate speech, she emphasized its disparate impact on the most vulnerable members of society. Matsuda (1993) wrote, “Tolerance of hate speech is not tolerance borne by the community at large. Rather, it is a psychic tax imposed on those least able to pay” (p. 18).
Charles R. Lawrence III (1993) pointed out how inadequate and hollow calls for counterspeech are given the disabling effects of hate speech on members of vulnerable groups. Slurs, epithets, and other derogatory language, he said, are assaultive—the functional equivalent of “a slap in the face” (Lawrence, 1993, p. 68). Such verbal abuse effectively stuns its targets into silence, making further dialogue in any real sense of the term impossible. This is precisely what purveyors of hate speech intend: their aim, first and foremost, is to harm their victims, not contribute to the marketplace of ideas. Lawrence stipulated that hate speech should be viewed not just as a virulent form of expression, but also as an act of subordination that restricts people’s pursuit of education, employment, and life opportunities. The distinction between speech and conduct made by apologists of hate speech protections is a false one, he argued. Hate speech is a form of discrimination, and as such, is “both 100% speech and 100% conduct” (Lawrence, 1993, p. 62). It creates and sustains a “social reality” in which vulnerable minorities are not able to interact and participate in daily life on an equal footing with others.
The Liberal Democratic Position
These various arguments (particularly in Waldron, 2012) in favor of hate speech regulations take us some way towards understanding what Elizabeth Anderson (1995) called the liberal democratic position in debates over free expression in the academy, a position which she herself defended as a justifiable alternative to the libertarian position. Anderson’s advocacy for the former stemmed from her conviction that in the academic setting, the libertarian position fails to deliver on the promises of its most ardent supporters. The libertarian position, she asserted, does not secure the social conditions necessary for the objective assessment of truth claims and for the rational autonomy of inquirers. Drawing from the work of social epistemologists such as Helen Longino (1993) and Miriam Solomon (1994), Anderson noted that all of us—even the most highly trained and accomplished scholars, theorists, researchers, and scientists—are subject to cognitive biases that color our perspectives, shape (and sometimes cloud) our thinking, and limit our understanding in more or less significant ways. None of us has the capacity to overcome these biases on our own. Collectively, however, we can limit their influence over the production and dissemination of knowledge “provided our social practices of inquiry stand us in relations of cognitive authority that enable us to correct or balance our individual biases” (Anderson, 1995, p. 191). Traditionally, in higher education as in other spheres of social life, cognitive authority has been concentrated among middle and upper class, White males. Academic rigor and objectivity has suffered to the extent that their assumptions and biases have escaped critical scrutiny from those whose life experiences and perspectives differ in significant ways. Financial aid, affirmative action in admissions and faculty hiring, and other programs designed to promote greater inclusiveness and equity on campus are steps in the right direction, according to Anderson (1995). Such programs help to make higher learning and research opportunities more accessible to women, racial and ethnic minorities, students from working-class and poor backgrounds, and other members of marginalized groups. However, simply giving these individuals a seat at the academic table is not enough. As long as their contributions to the exchange of ideas are systematically ignored, misrepresented, and invalidated, scholarly objectivity and the rational autonomy of all inquirers will continue to suffer as a result.
A major problem with the libertarian position, by Anderson’s account, is that it reinforces, rather than helps to dismantle prevailing discursive norms and practices in the university that keep members of marginalized groups in a subordinate position. By way of illustration, Anderson described a variety of virulently racist, sexist, and anti-Semitic speech acts that have occurred during her tenure at the University of Michigan, including the distribution of flyers advocating the lynching of African Americans as well as classroom comments made by a statistics professor about the shape of a student’s breasts. Considered individually, she suggested, each of these acts might be dismissed as the offensive ravings of a handful of bigots and misogynists. But these are far from isolated incidents. Instead, as Anderson (1995) wrote, “they are part of a systematic pattern of abuse by which members of oppressed groups are constituted as the proper objects of others’ contempt, derision, and mistrust” (p. 201). When confronted with these kinds of speech acts, the libertarian position proposes that affected parties, first, toughen up and develop a thick skin, and second, respond with counterspeech. The first suggestion, Anderson (1995) explained, is “psychologically unrealistic” (p. 201). The level of self-respect and self-confidence that is required of the individual, here, does not just emerge in a vacuum. It crucially depends on what philosophers in the Rawlsian tradition call the “social bases of self-respect” (see Rawls, 2001, p. 60), including the public recognition that one is an equal citizen deserving of dignity and respect. Such recognition is effectively denied to those who are regularly subjected to the kind of verbal abuse Anderson described. The second suggestion offered by the libertarian position—that targets of the verbal abuse respond with counterspeech—is equally suspect, according to Anderson. This suggestion overlooks that demeaning, degrading, and derogatory speech has a chilling, silencing effect on its targets. It either directly shuts them up, or does so indirectly by “reinforcing norms of interpretation whereby what [they] say is ignored, discounted, or dismissed” (Anderson, 1995, p. 202).
Where the libertarian position fails to secure the social conditions necessary for the enhancement of scholarly objectivity and rational autonomy among inquirers, the liberal democratic position can succeed, according to Anderson. The liberal democratic position distinguishes between the communicative norms that are appropriate in higher education and the communicative norms that operate in other social spheres—singles’ bars, say, or used car lots or political campaigns. In the university setting, speech that threatens to undermine the central educational and research mission is properly regulated, or so maintains the liberal democratic position. Anderson noted that some such regulations are very well established in the academy. Publishing fraudulent research, for instance, is grounds for dismissal from the university, whereas in other social settings the peddling of nonsense, misinformation, and outright lies is accepted as a matter of course: “just read the tabloids, or listen to almost any politician speak,” Anderson (1995, p. 207) quipped. In general, speech in the academy is kept in relatively tight check by an elaborate system of rewards and punishments, including grades, tenure, promotion, grants, and scholarships.
The liberal democratic position proposes that, in the interest of scholarly objectivity and rational autonomy, verbal interaction that denigrates or stigmatizes others on account of ascriptive characteristics such as gender, race, ethnicity, religion, or sexual orientation should be constrained in higher education. This position further holds that most of the work of regulating such interaction should occur through the informal enforcement of new “norms of civility” on campus. While there is a place for narrowly tailored speech codes that formally sanction slurs, “fighting words,” and the like, such codes are ill-equipped to deal with what Anderson (1995) considered to be the more widespread and fundamental problems—including extant “background norms” (p. 208) that disadvantage women and minorities as well as the more subtle, unconscious, and/or coded language of prejudice that pollutes academic discourse. To address these problems, the liberal democratic position calls for the development and enforcement of informal discursive rules to ensure that everyone gets a fair chance to speak and be heard under terms of mutual recognition and respect. This includes rules prohibiting interruptions and limiting the amount of time speakers can hold the floor. It also includes norms governing the appropriate tone with which discussants address one another—with courtesy and respect being the expectation and haughty, disdainful posturing being met with strong rebuke.
Perhaps most controversially for proponents of the libertarian position, the liberal democratic position denies that norms governing speech on campus must be “viewpoint neutral” in order to align with the central, truth-seeking mission of colleges and universities. Anderson (1995) asserted, “the academy may properly distinguish between speech that constitutes inquiry, and speech that, although expressing a ‘viewpoint,’ constitutes a disruption of inquiry” (p. 209). To illustrate this point, Anderson recollected a moment in a political science classroom at the University of Michigan when, in response to a Black classmate’s question, a White student audibly snorted, “That’s what you get with affirmative action”—the clear implication being that only a cognitively inferior, second-class person would ask such an inane question. On the one hand, a formal speech code—which must confine its attention to the most straightforwardly hateful and inciteful speech acts if it is to avoid chilling constitutionally protected expression—is too blunt an instrument to address a comment like this. On the other hand, to let the comment slide is to be complicit in the derogation of minority students and to deter their participation in inquiry on equal terms with others. Nor, from the liberal democratic standpoint, is opening the White student’s comment up for discussion an appropriate tack to take here. The comment should not be read as the expression of a valid point of view on affirmative action programs, but as an unmistakable affront to the dignity of a group of students, and one student in particular. The response that is called for here, according to the liberal democratic position, is immediate, unambiguous, and forceful repudiation of the White student’s comments by everyone present, and especially the professor.
Anderson conceded without reservation that, in the name of truth-seeking, the academic community must reserve for itself the right to question the credibility of individuals, not to mention entire lines of research, on “cognitively relevant” grounds. It is fair and legitimate to consider the overall intelligence, qualifications, and past achievements of individuals when assessing the validity of their claims. Inquirers must be free, for instance, to cast doubt on the testimony of researchers who have designed flawed experiments or misinterpreted data in the past, and to reject research findings based on unexamined assumptions, dubious methods, and/or discredited theories. Maintaining high standards for research and scholarly integrity requires nothing less. That said, from the liberal democratic standpoint, speech that assails other members of the intellectual community for purposes other than assessing their claims, or on grounds irrelevant to their cognitive authority is not expression that warrants protection in the academy. In the final analysis, what most distinguishes the libertarian and liberal democratic positions on free speech in higher education is the latter’s contention that squelching abusive, demeaning expression that has no apparent scholarly or educational value is the right approach for an academic community dedicated to free inquiry and open exchange of ideas to take. Restrictions on this kind of expression are necessary to ensure that every member of the community is free to learn and to inquire, to speak, and to be heard.
Affirmative Action Pedagogy and Justifications for Silencing Student Speech in the Classroom
The libertarian and liberal democratic positions provide a useful lens for examining longstanding debates over the extent of free speech in higher education. However, they do not exhaust the variety of standpoints taken by participants in these debates. For example, some educational philosophers, while dissecting examples of disturbing speech in the classroom context, have called for tighter restrictions on student speech while advocating for what they refer to as an “affirmative action pedagogy.” In the interest of pushing our discussion a bit further, let us briefly analyze what an affirmative action pedagogy entails, the concerns that have given rise to it, and how it diverges from both the libertarian and liberal democratic positions on free speech in the academy.
The question of under which circumstances instructors are justified in curtailing student speech in the classroom has become quite contentious in educational scholarship, although there are some widely agreed upon norms for this practice. In mundane cases, student speech is suppressed for the sake of minimizing disruptions and maintaining an orderly and efficient learning space—as when the teacher cuts off a particularly loquacious student in order to allow others to get a word in edgewise, or a tangent-prone student in order to keep the discussion on point and avoid protracted digressions. Even the most ardent defender of free speech will concede that censorship, in such cases, is necessary for the effective functioning of the educational environment.
A more complex and philosophically interesting set of cases involves educators who silence students for the sake of civility. Granted, when the speech in question involves persistent or pervasive discriminatory harassment, fighting words, real threats, and the like—the rationale for censorship is unassailable. Hard-nosed libertarians and egalitarian-minded liberal democrats are liable to agree here, as are university administrators and court authorities. But what about speech that is strictly relevant to the topic under consideration and does not descend to the level of direct, personal invective, and yet nevertheless demeans members of some widely stigmatized group? Is silencing this kind of utterance the appropriate course of action for instructors? Or are the interests of all parties better served by permitting such views to be expressed and discussed openly in the classroom?
Educational philosopher Barbara Applebaum (2003) offered an example that gets to the heart of this issue. The example involves a prospective school administrator who was enrolled in one of Applebaum’s graduate seminars on democratic education and diversity. During a discussion about the lives of LGBTQ+ youth in the public schools, this graduate student—a heterosexual, White, devout Christian woman—commented that, as a future administrator, she would have “no problem” with homosexual students in her school because she had learned to “love the sinner but hate the sin” (Applebaum, 2003, p. 151). Understandably concerned about allowing such a comment to go unaddressed, Applebaum asked this student a series of pointed questions beginning with how she thought LGBTQ+ youth would feel being referred to as “sinners” by one of their assistant principals. Unfortunately, this line of questioning went nowhere. The graduate student in question reacted defensively, digging in her heels while insisting that Applebaum was abridging her right to express her sincerely held moral and religious beliefs.
Reflecting on the episode, Applebaum (2003) wrote that the graduate student’s comment is “an instrument of subordination as much it is an expression of her viewpoint” (p. 152). The comment not only inflicts significant harm on LGBTQ+ students, but also has a deleterious impact on heterosexual students, reinforcing a toxic culture of heterosexism and homophobia. Silencing the White Christian student in this instance, Applebaum reasoned, is an appropriate tack to take, especially given the student’s intransigent response to her professor’s questions and concerns. In Applebaum’s estimation, faculty members are more than warranted in restricting student speech that threatens to undermine the pursuit of social justice and democratic equality for marginalized members of the university community. She concluded, “I will . . . silence these dominant voices when necessary” at least until that time “when I am convinced that my classroom can become a safe zone for everyone” (Applebaum, 2003, p. 161). What “a safe zone for everyone” entails, and how it can be achieved, are questions left unresolved in the article.4
In a subsequent essay in which she responded to charges of liberal bias levelled against faculty “who teach with commitments to social justice” (p. 379), Applebaum (2009) extended the argument for silencing “dominant voices” in the classroom. A main objective of the essay is to rebut the claim that instructors should aspire to be neutral, even-handed, and fair during classroom discussions around lively and disputatious social and political issues. If being neutral means allowing a dominant viewpoint to go unchallenged, as Applebaum (2009) took it to mean here, then the effect will be to validate the dominant viewpoint as “the only truth” (p. 385). A further effect will be to “recenter” the privilege of already powerful students while “sacrificing the education of more marginalized peers” (Applebaum, 2009, p. 379). Yet, in the face of such harmful consequences, Applebaum argued that instructors must do more than challenge and critique dominant viewpoints. Given that college and university classrooms are infused with “a culture of power” that gives greater weight to the needs, preferences, and concerns of privileged students, “allowing all voices expression is not fair” (Applebaum, 2009, p. 387). Applebaum rejected the premise that counterspeech is the best antidote for speech that stands to reassert the dominance of already powerful individuals. “Under conditions of systemic injustice . . . ,” she wrote, “the demand for more rational deliberation can possibly get in the way of challenging systemic oppression and privilege” (Applebaum, 2009, p. 392). And in a more direct rejoinder to those who insist upon countering problematic speech with more speech, she added, “Sometimes silencing rational deliberation and debate may be the more just undertaking” (Applebaum, 2009, p. 399).
Applebaum’s arguments here are of a piece with those of other contemporary scholars working within the critical theory and critical pedagogy traditions, who echo the call for constraining speech in the classroom in the name of countering oppression. Megan Boler (2005), a prominent spokesperson for this view, advocated what she called an “affirmative action pedagogy” that “privileges the insurrectionary and dissenting voices, sometimes at the minor cost of silencing those voices that have been permitted dominant status for the past centuries” (p. 13). An affirmative action pedagogy, as Boler conceptualized it, is not in the first instance about suppressing student speech. Foremost, it is about empowering marginalized students and compensating for injustices visited upon them in the schools and in the wider society. Boler (2005) suggested that instructors who invite students “to express anything” in the classroom, while at the same time assiduously challenging racist, homophobic, and other oppressive viewpoints are acting in concert with an affirmative action pedagogy, so long as there is good reason to believe the ensuing discussions “will result in changing individual and group attitudes that are rooted in ignorance” (p. 6). However, Boler (2005) explained, instructors who prohibit “certain kinds of speech, or [enforce] an assumption about what beliefs participants are assumed to hold” (p. 6) are also acting in concert with an affirmative action pedagogy, at least insofar as they exercise these instructional prerogatives in the interest of privileging non-dominant voices in the classroom. Like Applebaum, Boler (2005) viewed the typical college or university classroom as thoroughly shot through with power imbalances that place students on an unequal discursive playing field. Like Applebaum, she also drew attention the deleterious impact that lightly or unregulated discussion can have on marginalized students in such a context. And like Applebaum, Boler (2005) contended that silencing dominant voices is sometimes required “to create a space that allows, uniquely, the unheard to be heard” (p. 7).
How do these arguments for restricting student speech square with the libertarian and liberal democratic positions on free speech in the academy? Not well in the case of the libertarian position. Suppressing student expression in a case such as this, from the libertarian standpoint, interferes with the search for truth, violates the rational autonomy of students, and ill-serves the struggle against prejudice, discrimination, and inequality to boot. When repugnant views emerge in the classroom, these views ought to be exposed to rigorous questioning and criticism. Practically speaking, students who hold such views are more apt to reconsider their position when they have the opportunity to speak freely and in turn have their views vigorously challenged by others. Additionally, while often well-meaning, the effort to protect members of vulnerable minorities from offensive speech by shutting down such speech is paternalistic and ineffective. The libertarian position contends that the targets of offensive speech stand to gain a lot—in terms of developing self-assurance and a “thick skin”—by having an opportunity to listen and respond to (or witness other students or the instructor respond to) such speech in the classroom.
At a glance, the case that Applebaum and Boler made for silencing “words that wound” might appear to align with the liberal democratic position, which supports constraining speech that denigrates or stigmatizes others on account of ascriptive characteristics. Yet there are important distinctions that become evident when we reexamine the different classroom examples used to illustrate each position. Recall that in Anderson’s example, a White student responded to an African-American student’s question in class by audibly snorting, “That’s what you get with affirmative action”—the clear implication being that only someone wholly unsuited for the academic challenges of the university classroom would dare ask such a question. There is no way to interpret this student’s comment charitably. It amounted to a vicious personal attack on another student, indeed an entire group of students, that otherwise had no bearing on the topic of discussion, and nothing of educational value to add. From the liberal democratic standpoint, the appropriate course for the instructor to take here is to shut down the comment immediately, while emphatically declaring it and other comments like it to be an intolerable breach of civility. To let the comment stand, or to even open it up for discussion, would equate to sending the message that the student in question, and other minority students, can participate in the classroom only at the risk of facing scorn from others, from which they will not be protected. This amounts to a denial of educational opportunity.
From the liberal democratic standpoint, Applebaum’s example is different in important respects. The White Christian student’s comment—that when it comes to members of the LGBTQ+ community, she has learned to “love the sinner but hate the sin”—is an obnoxious, offensive, and hurtful comment to be sure. The comment was, however, strictly relevant to the topic under consideration—a series of readings about the lives of LGBTQ+ students in the public schools. Furthermore, the comment was not directed at anyone in particular. On a charitable (though not naively so) interpretation, this was not intended as an expression of deep-seated antipathy for sexual minority students. Rather, as Eamonn Callan (2011)—himself a sympathizer with the liberal democratic position—has said about comments like this one, it could reasonably be read as a “good faith contribution to discussion” in the sense that it represents a “sincerely expressed [view] intended to advance a common pursuit of truth” (p. 7). This is not to suggest the White Christian student’s comment amounted to a reasonable or compelling contribution, nor to deny that the words were not hurtful. It is to suggest, however, that from the liberal democratic standpoint, the better approach to comments such as this—comments that are immediately relevant to the discussion at hand and do not descend to the level of personal insults or attacks—is to open them to questioning and critique. Skillful instructors might take any number of approaches here. They might, for instance, use the comments as an opportunity to teach about how some broadly shared cultural and religious beliefs stigmatize others. They might also raise pointed questions about the appropriateness of using such beliefs as a guide for public school administrative decision making. The intention here would be to educate the White Christian student and all participants in the discussion about civic equality and mutual respect in a pluralistic society. A further intention would be to “reaffirm the standing of [sexual minority students] in the classroom as equals among peers . . . and to blunt the potentially adverse effects that uncivil speech would otherwise have had on their effective opportunity to participate in the classroom” (Callan, 2011, p. 15). From the liberal democratic standpoint, silencing the White Christian student’s speech in this case would deny to all students the educational benefits that accrue from skillfully facilitated discussion. And, as Callan (2011) added, the cost of silencing would be “particularly damaging to the long-term interests of . . . [marginalized students] to the extent that it protects from confrontation and correction the very attitudes that secure their ongoing stigmatization” (p. 13).
To summarize, advocates of an affirmative action pedagogy and proponents of the liberal democratic position both find fault with the largely unregulated discursive environment favored by civil libertarians, which serves in their view to keep members of marginalized groups in a subordinate position. Drawing from work in critical race theory, advocates of an affirmative action pedagogy focus on the psychosomatic harm that disturbing speech inflicts upon vulnerable students. Proponents of the liberal democratic position draw particular attention to the detrimental impact on academic rigor and objectivity that results from a speech environment in which the voices and concerns of members of marginalized groups are drowned out, ignored, or effectively excluded altogether. Where advocates of an affirmative action pedagogy and proponents of the liberal democratic position part ways is with the former’s readiness to curtail problematic and disturbing speech that is nevertheless relevant to the discussion at hand and could be read as a good faith effort (however misinformed or misguided) to advance inquiry. For supporters of the liberal democratic position, speech of this type ought to be given a hearing, and then treated to vigorous questioning and criticism.
Final Thoughts: Heightened Concerns Over Online Speech
In an effort to better understand ongoing debates over the proper extent of free expression in the academy, this article has closely examined a few distinct positions in these debates, including the libertarian and liberal democratic positions, and the position on classroom speech outlined by advocates of an affirmative action pedagogy. In closing, it is important to acknowledge, if only briefly, that these debates are only becoming more urgent and more complex as online communication has evolved and become ubiquitous in all of our lives. Noxious online speech—which proliferates on mainstream social media platforms like Twitter and Facebook as well as in “the dark corners of the web” on websites like 4chan—has been the precursor to very real-world violence at, among other places, the Unite the Right rally in Charlottesville, a synagogue in Pittsburgh, two mosques in Christchurch, New Zealand, a Walmart in a Hispanic neighborhood in El Paso, and the capitol building in Washington, D.C. These tragedies have prompted the founders and controlling shareholders of Twitter and Facebook to revisit their largely hands-off approach to regulating content posted on their platforms. And these tragedies have also prompted some self-avowed First Amendment absolutists and libertarians to rethink their “all-or-nothing” perspective on free speech (Marantz, 2019).
Noxious online speech is of course a society-wide problem, but one with particular implications for higher education. For one thing, noxious online speech serves as a reminder that colleges and universities (not to mention K-12 schools) have a critical role to play in promoting responsible digital citizenship as well as news and media literacy. For another, members of college and university communities are unfortunately being caught up in online speech scandals with increasing regularity, and at times with dire consequences. Among the many scandals attracting widespread attention and outrage are examples involving cyberbullying-induced suicides of LGBTQ+ youth (Schweber & Foderaro, 2016), students and prospective students using racial slurs and appearing in blackface on Snapchat and Instagram posts (Bauer-Wolf, 2019; Levin, 2020a, 2020b), and an Indiana University economics professor whose Twitter feed referred to women as “the weaker sex,” gay men as promiscuous child abusers, and Black students as academically inferior to White students (Bogel-Burroughs, 2019). Disturbing episodes like these are a growing front in debates over the scope and limits of free speech in higher education, adding new wrinkles and raising new concerns. They should prompt all of us to reexamine our own standpoints in these debates.
- Baer, U. (2019). What snowflakes get right: Free speech, truth, and equality on campus. Oxford University Press.
- Demaske, C. (2020). Free speech and hate speech in the United States: The limits of toleration. Routledge.
- DelFattore, J. (2010). Knowledge in the making: Academic freedom and free speech in America’s schools and universities. Yale University Press.
- Downs, A. D., & Surprenant, C. W. (Eds.). (2018). The value and limits of academic speech: Philosophical, political, and legal perspectives. Routledge.
- Fish, S. (1994). There’s no such thing as free speech: And it’s a good thing, too. Oxford University Press.
- Kronman, A. T. (2019). The assault on American excellence. Simon & Schuster.
- Leaker, A. (2020). Against free speech. Rowman & Littlefield.
- Lukianoff, G., & Haidt, J. (2018). The coddling of the American mind: How good intentions and bad ideas are setting up a generation for failure. Penguin.
- Marantz, A. (2019). Anti-social: Online extremists, techno-utopians, and the hijacking of the American conversation. Viking.
- Palfrey, J. (2017). Safe spaces, brave spaces: Diversity and free expression in education. MIT Press.
- PEN America. (2017). And campus for all: Diversity, inclusion, and free speech at U.S. universities.
- Rauch, J. (2012). Kindly inquisitors: The new attacks on free thought (Exp. ed.). The University of Chicago Press.
- Roth, M. S. (2019). Safe enough spaces: A pragmatist’s approach to inclusion, free speech, and political correctness on college campuses. Yale University Press.
- Strossen, N. (2018). Hate: Why we should resist it with free speech, not censorship. Oxford University Press.
- Whittington, K. E. (2019). Speak freely: Why universities must defend free speech. Princeton University Press.
- AAUP (American Association of University Professors). (1994). On freedom of expression and campus speech codes.
- ACLU (American Civil Liberties Union). (2018). ACLU case selection guidelines: Conflicts between competing values or priorities.
- Anderson, E. S. (1995). The democratic university. Social Philosophy and Policy, 12(2), 186–219.
- Applebaum, B. (2003). Social justice, democratic education and the silencing of the words that wound. Journal of Moral Education, 32(1), 151–162.
- Applebaum, B. (2009). Is teaching for social justice a “liberal bias”? Teachers College Record, 111(2), 376–408.
- Bauer-Wolf, J. (2019, March 7). A tough balance. Inside Higher Ed.
- Ben-Porath, S. R. (2017). Free speech on campus. University of Pennsylvania Press.
- Bogel-Burroughs, N. (2019, November 22). Our professor’s views are vile, university says. But we can’t fire him. The New York Times.
- Boler, M. (2005). All speech is not free: The ethics of “affirmative action pedagogy.” In M. Boler (Ed.), Democratic dialogue in education: Troubling speech, disturbing silence (pp. 3–13). Peter Lang.
- Callan, E. (2011). When to shut students up: Civility, silencing, and free speech. Theory and Research in Education, 9(1), 3–22.
- Callan, E. (2016). Education in safe and unsafe spaces. Philosophical Inquiry in Education, 24(1), 64–78.
- Chemerinsky, E., & Gillman, H. (2017). Free speech on campus. Yale University Press.
- Colby, A., Beaumont, E., Ehrlich, T., & Corngold, J. (2007). Educating for democracy: Preparing undergraduates for responsible political engagement. Jossey-Bass.
- Delgado, R. (1993). Words that wound: A tort action for racial insults, epithets, and name calling. In M. J. Matsuda, C. R. Lawrence III, R. Delgado, & K. W. Crenshaw (Eds.), Words that wound: Critical race theory, assaultive speech, and the first amendment (pp. 89–110). Westview Press.
- Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989).
- Fast, J. (2018). In defense of safe spaces: A phenomenological account. Atlantis, 39(2), 1–22.
- Gould, J. B. (2005). Speak no evil: The triumph of hate speech legislation. The University of Chicago Press.
- Hill, D. W. (2020). Communication as a moral vocation: Safe space and freedom of speech. The Sociological Review, 68(1), 3–16.
- Lawrence, C. R., III. (1993). If he hollers let him go: Regulating racist speech on campus. In M. J. Matsuda, C. R. Lawrence III, R. Delgado, & K. W. Crenshaw (Eds.), Words that wound: Critical race theory, assaultive speech, and the first amendment (pp. 53–88). Westview Press.
- Levin, D. (2020a, July 2). Colleges rescinding admissions offers as racist social media posts emerge. The New York Times.
- Levin, D. (2020b, December 26). A racial slur, a viral video, and a reckoning. The New York Times.
- Levy, J. T. (2016). Safe spaces, academic freedom, and the university as a complex association. Bleeding Heart Libertarians.
- Longino, H. (1993). Essential tensions—phase two: Feminist, philosophical, and social studies of science. In Antony, L., & Witt, C. (Eds.), A mind of one’s own: Feminist essays on reason and objectivity (pp. 257–272). Westview Press.
- Lukianoff, G., & Haidt, J. (2015, September). The coddling of the American mind. The Atlantic.
- Marantz, A. (2019, October 4). Free speech is killing us. The New York Times.
- Matsuda, M. J. (1993). Public response to racist speech: Considering the victim’s story. In M. J. Matsuda, C. R. Lawrence III, R. Delgado, & K. W. Crenshaw (Eds.), Words that wound: Critical race theory, assaultive speech, and the first amendment (pp. 17–52). Westview Press.
- Mill, J. S. (2002). On liberty. In J. B. Schneewind (Ed.), The basic writings of John Stuart Mill (pp. 3–119). The Modern Library. (Original work published 1859.)
- Rawls, J. (2001). Justice as fairness: A restatement. Harvard University Press.
- Roestone Collective. (2014). Safe space: Towards a reconceptualization. Antipode, 46(5), 1346–1365.
- Savage, C. (2021, January 10). Incitement to riot? What Trump told supporters before mob stormed capitol. The New York Times.
- Schweber, N., & Foderaro, L. W. (2016, October 27). Roommate in Tyler Clementi case pleads guilty to attempted invasion of privacy. The New York Times.
- Solomon, M. (1994). Social empiricism. Noûs, 28(3), 325–343.
- Strossen, N. (1997). Why the American Civil Liberties Union opposes hate speech codes. Academic Questions, 10(3), 33–40.
- UWM Post, Inc. v. Board of Regents of University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991).
- Waldron, J. (2012). The harm in hate speech. Harvard University Press.
- Wu v. University of Conn. (No. Civ. H89-649 PCD) (D. Conn. 1989).
1. Another example of what Mill had in mind here is U.S. President Donald J. Trump’s speech on January 6, 2021, to throngs of his ardent supporters who were assembled outside the White House for what organizers billed a “Save America March.” The speech came on the heels of weeks of escalating inflammatory rhetoric from Trump and his associates who claimed, without evidence, that the 2020 presidential election was “rigged,” “stolen,” and “a total fraud.” While encouraging them to march to the U.S. Capitol building as Congress was convening to certify the election results, Trump enjoined his supporters to “fight much harder” against “bad people,” to “show strength,” to “never give up” and “never concede,” to “stop the steal,” and to “fight like hell” (Savage, 2021). Shortly after the speech, an armed insurrectionist mob occupied and ransacked the Capitol, leaving at least five dead, forcing Congress members into hiding, and temporarily delaying the election certification process.
2. The AAUP was founded in 1915 by philosophers Arthur Lovejoy and John Dewey in response to the grudging resignation of a well-known Stanford faculty member, the progressive era-sociologist Edward Ross. Ross’ racist and xenophobic pronouncements on Chinese immigrant labor and his vocal criticism of railroad monopolies managed to draw the ire of Jane Stanford, co-founder of the eponymous university and wife of railroad magnate and politician Leland Stanford.
3. The ACLU was founded in 1920, in the course of the first Red Scare, to defend the rights of alleged radicals who were being arrested and deported on a massive scale in what came to be known as the “Palmer Raids”—so named for Attorney General Mitchell Palmer who oversaw the raids.
4. These two questions, as well as the more fundamental question of whether the creation of safe spaces is an appropriate or desirable goal for institutions of higher education, have been subject to intense debate in the literature on free speech in the academy. Like Applebaum, many scholars and commentators contend that inclusive learning communities depend upon the creation of “safe spaces” where everyone is respected and all voices can be heard (see, for example, Fast, 2018; Hill, 2020; Levy, 2016; Roestone Collective, 2014). Although proponents differ on the details, safe spaces are generally defined by the following expectations: (a) that participants will share certain assumptions or political or social viewpoints (such as the view that women’s, gender, and ethnic studies are legitimate and important fields of academic inquiry), and (b) that participants will be insulated from the stereotypes, prejudice, and demeaning speech to which they are regularly exposed in mainstream society. In a provocative and widely discussed article in the Atlantic, Greg Lukianoff and Jonathan Haidt (2015) bemoaned what they regarded as an obsession with safety on college and university campuses, which they likened to a scourge that is infantilizing students, leaving them ill-prepared for professional life, and engendering in them pathological patterns of thought that lead to anxiety and depression. Eamonn Callan (2016) charted a nuanced middle ground in the increasingly shrill debates over campus safety by distinguishing between “dignity safety” and “intellectual safety.” Dignity safety, which Callan (2016) contended should be promoted on campus, involves being “free of any reasonable anxiety that others will treat one as having an inferior social rank to theirs” (p. 67). Intellectual safety, which he asserted has no place in the academy, involves being protected from ideas or perspectives that conflict with one’s own. Sigal Ben-Porath (2017) elaborated on this distinction in her book, Free Speech on Campus.