Last week, President Donald Trump signed an executive order to withhold federal funding from public and private colleges and universities that do not protect free speech on their campuses. Despite the dramatic lead-up, the order itself doesn’t say all that much. It requires public colleges to comply with the First Amendment and private colleges to comply with their own speech policies — things they’re already required to do — and unsurprisingly, it’s been described as redundant (it’s also been referred to as a “nothingburger”).
Of course, there’s still potential for the order to be enforced in a way that threatens civil liberties and comprises federal overreach, but that’s for our future selves to worry about. Today, I’m thinking about the impetus behind the order and Trump’s words when he signed it. “Under the guise of speech codes and safe spaces and trigger warnings, these universities have tried to restrict free thought, impose total conformity and shut down the voices of great young Americans,” he said March 21. Is that true? Are colleges actually eroding free speech and undermining First Amendment values?
Sure. But no more so than anyone else.
The Knight Foundation’s 2018 survey on campus free expression showed that a majority of college students think that free speech rights are extremely important to democracy — but at the same time think that campuses should be able to restrict things like hate speech and stereotypical costumes. Yes, this means students believe in free speech in the abstract more than they support it in reality — but they’re certainly not alone. The First Amendment Center’s annual State of the First Amendment survey consistently demonstrates that while a majority of Americans of all ages are generally supportive of the First Amendment, they’re less enthusiastic about it when it comes to real life scenarios.
In 2017, its results showed that conservatives were more likely than liberals to believe that government officials who leak information should be prosecuted and that the government should be able to hold Muslims to a higher level of scrutiny. Liberals — even the nonstudent variety — were more likely than conservatives to think that colleges should be able to ban speakers with controversial views and that people should not be able to express racist views on social media. And I probably don’t need to point out that the president’s call for free speech from young Americans is at odds with many statements he’s made in the past, about, say, taking a knee during the national anthem.
While everybody loves the First Amendment in theory, nobody’s all that fond of it in practice. We love speakers who articulate thoughts we were already thinking and barely tolerate the ones who contradict our world view. Most of us, even those of us long since graduated from college, struggle with the desire to relentlessly censor one another. Free speech makes hypocrites of us all.
That said, it’s hard to ignore the high-profile controversies that specifically involve campus speakers being shouted down by angry audiences or disinvited due to pressure from students. Considering that we live in a nation with more than 4,700 colleges and only about 50 have been embroiled in such controversies, I wouldn’t call it an epidemic, but it’s indisputable that these sorts of incidents happen on college campuses. But then again — where else would they happen?
The college campus is a unique and paradoxical place in our society. It’s where young people are supposed to learn to be adults. It’s also where they can engage in the kind of debates, activism and inquiry that most of them will, frankly, never have time for as adults. It’s a venue that’s frequently open to the public and it’s also the place that many students call home. It’s a bastion of elitism and it also provides more exposure to racial, economic and intellectual diversity than some students will ever get again. Colleges are, all at the same time, molders of the next generation, institutes for high-level research, conveners for the exchange of thoughts and ideas, and businesses catering to the needs of their customers.
Fostering an environment for free speech is a tricky business, one that involves balancing numerous interests. Students and faculty should be allowed to express themselves, and speech codes that prohibit offensive speech are almost always too broad or too vague to be constitutional. But that doesn’t negate the legitimate concern that speech from some students can have a chilling effect on the speech of other students. Student groups have the right to invite campus speakers, even if they’re controversial. But to punish students from protesting these speakers deprives them of their own First Amendment right to peacefully assemble. Of course, there’s another concern that allowing students to shout down a speaker deprives the audience of — their First Amendment right to listen and receive information. My point is that ensuring free speech for all is complicated.
In contrast, the narrative of free speech on college campuses under attack is refreshingly simple and, ironically, has led to some unnerving anti-speech laws — not just last week’s executive order; there’s nothing nothingburger-ish about proposed laws in Illinois, Minnesota, Missouri and South Carolina that would require public college administrators to suspend or expel students found guilty of “infringing the expressive rights of others” by protesting a campus speaker, or the one in Arkansas that would create criminal sanctions for that. Yet another example of First Amendment hypocrisy — defending one First Amendment right by limiting another.
Lata Nott is executive director of the First Amendment Center of the Freedom Forum Institute. Contact her via email at lnott@freedomforum.org, or follow her on Twitter at @LataNott.
