Review of Erwin Chemerinsky & Howard Gillman, Free Speech On Campus

January 2018

Erwin Chemerinsky and Howard Gillman’s Free Speech on Campus deals primarily with the tension between freedom of expression and the need to safeguard the learning atmosphere around post-secondary students, especially minority students. Chemerinsky and Gillman admit that an approach is required that “both protects expression and respects the need to make sure that a campus is a conducive learning environment for all students” (p. 19).

The authors are adamant, however, that the only limits placed on freedom of speech be against speech that offends the constitution, not speech that offends people. In their words, “All ideas and views should be able to be expressed on college campuses, no matter how offensive or how uncomfortable they make people feel” (p. 19).

The authors’ affinity for muscular liberalism places them at odds with the growing campus preference for multicultural liberalism. For proponents of the latter doctrine, free speech should be limited whenever it demeans the self-esteem and dignity of minorities. Hence, campus speech restrictions are required so that minorities are not vilified, humiliated or dehumanized. That said, the authors believe they have found a resolution that strikes a balance between both liberal camps.

Chemerinsky and Gillman begin by stressing the importance of free speech for personal, political and historical reasons. An individual cannot become a self-governing agent unless he or she is “exposed to different ideas about what is important and what beliefs are most meaningful, and is permitted to converse with others about their experiences or beliefs” (p.24). As well, free speech is essential to democratic self-government. By discussing contentious issues openly, citizens are able “to formulate and communicate their opinions about what decisions or policies will best advance the community’s welfare” (p. 25).

Moreover, the authors note that minority voices were previously censored because their messages were deemed “offensive.” For instance, statements critical of the federal government could be criminalized under the Alien and Sedition Acts of 1798. Sending “obscene” literature through the mail—specifically, anything related to abortion or contraception—was suppressed under the Comstock Law of 1873. The Espionage Act of 1917 and The Sedition Acts of 1918 made it a crime to speak out against the draft or to cast the government’s war efforts in a negative light. Because of restrictions on speech, thousands were arrested and sent to prison for lengthy sentences.

From the 1930s to the 1970s, the Supreme Court shifted its opinions in favour of protecting vulnerable minorities. Within this time frame, states could no longer sanction those who belonged to the Communist Party. Children of Jehovah’s Witnesses could not be punished for refusing to pledge allegiance to the American flag. One could now condemn the draft without fear of reprisal. The extension of First Amendment protections even allowed civil rights activists, such as Martin Luther King Jr., to build support for the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Therefore, changes in the legal landscape provided more freedom for political, racial, sexual and religious minorities whose views sat outside the mainstream.

Ironically, multicultural liberals who today advocate for censorship on university campuses believe that denying free speech is the most effective way to protect vulnerable groups. The authors view this position as problematic for two main reasons. First, “social progress has come about not as a result of silencing certain speakers, but by ensuring that previously silenced or marginalized groups are empowered to find their own voice and have their own say” (p. 47). Second, whenever universities have attempted to implement campus speech codes, specifically between 1989 and 1995, every court found them unconstitutional (pp. 100-101).

Chemerinsky and Gillman are not dismissive of the concerns of multicultural liberals, most notably, the corrosive effect of hate speech on society and the fact that unrepresentative groups face barriers to full inclusion (p. 111). But the authors draw a line concerning safe space policies. Universities and colleges “cannot and should not accommodate the language of safe spaces when the focus is protecting members of the campus from the expression of ideas, rather than creating a safe environment for the expression of ideas” (p. 140).

There are still types of expression that campuses should prohibit, such as true threats, harassment, destruction of property and the disruption of classes (pp. 116-126). These behaviours undermine both the day-to-day functioning of a university and pose genuine dangers to the health and welfare of students and professors alike. Hence, they are not protected by the First Amendment.

All things considered, Chemerinsky and Gillman insist, the advantages of free speech on American campuses outweigh the advantages associated with suppression of voices considered too controversial or inappropriate. In other words, a campus community makes its strongest contribution, not by intimidation or censorship, but by engaging competing perspectives, rebutting “harmful” or “dangerous” ideas, and resolving disagreement through rational argumentation (pp. 158-59).

Multicultural liberals may feel it’s their duty to censor speech deemed offensive or hateful, but this requires a trade-off of goods unacceptable to the authors. Free speech, Chemerinsky and Gillman claim, is not just one good among many: it is the most important good upon which all others depend. Without it, autonomous agents cannot think critically about the merit of competing claims because the thinking is done for them.

In a very nuanced fashion, Chemerinsky and Gillman have not only elevated the current debate surrounding free speech, but have also set in motion an agenda for its future.