Free speech becomes more costly on college campuses

Academic inquiry needs open minds and open ears. So why do open mouths prompt college campus authorities to shut them with speech restrictions?

Feminist lawyer Wendy Kaminer told the House Judiciary Subcommittee on the Constitution and Civil Justice last summer that the Department of Education is “out of control,” with a culture of censorship prevailing on campus.

“Campus censorship, like western European bans on hate speech, establishes a right of particular audiences not to be offended at the expense of the universal right to speak,” Kaminer said. More recently, Republican presidential candidate Ben Carson said the Department of Education should allow students more free speech while more closely monitoring faculty speech.

“The way that works is you invite students at the universities to send in their complaints, and then you investigate,” Carson said.

William Jergins, now a Ph.D. student in economics at Texas Tech University, went head-to-head against a restrictive speech code in his undergrad days at Dixie State University in Utah. Jergins tried to set up a chapter of Young Americans for Liberty there, but school administrators did not approve of the libertarian-leaning group.

Administrators rejected fliers depicting Che Guevara, and Presidents George W. Bush and Barack Obama because they were “disparaging” to those individuals, Jergins said. Next, he planned an event in which students were invited to write whatever they wanted on a special wall to celebrate the right to free speech.

“We were told that we would have to host it in a free-speech zone, which was a small corner of campus, far out of the way of any students. And while we were there at the wall, doing the free-speech zone, we had campus security there and monitoring the event,” Jergins said. “And it felt like all the work we had done was for absolutely nothing, that we weren’t going to get other students involved and that it just wasn’t going to make a difference.”

Jergins never was able to establish a Young Americans for Liberty chapter at Dixie State, but his work there was not in vain. He and a few other students brought a lawsuit with the help the Foundation for Individuals Rights in Education (FIRE), and eventually Dixie State revised its policy.

According to FIRE, about 200 of the 400 universities it has surveyed have unconstitutional speech codes. That’s an improvement from a few years ago, when 300 or more of those bastions of higher education violated the U.S. Constitution.

“Unfortunately, there is sort of a countervailing movement now, coming in many cases from students, where students are increasingly comfortable with seeing speech policed and censored, particularly if it’s considered to be ‘hate speech,’ which is a term that has no actual meaning in American law,” said Robert Shibley, FIRE’s executive director.

Shibley points to the University of California and its rules about so-called microaggressions, “things that are really just flatly political statements such as it’s a microaggression to say that America is a melting pot, or, ‘I don’t see color,’ or, ‘I believe in the most qualified persons to get the job,’ or, ‘America is a meritocracy.’” Shibley said. “All of those were classified as microaggressions, … as well as questions like, ‘Where are you from?’ because it supposedly has an implication that you don’t belong here.”

Matt Sharp, a lawyer with Alliance Defending Freedom, litigates campus speech rights, including those of much younger students.

“Now courts are generally saying that whether you’re in kindergarten or in college, you’ve got the same right to express your views and your beliefs about a subject matter as long as you do so in a way that doesn’t disrupt the classroom [or] inhibit the ability of the teacher to teach,” Sharp said.

A U.S. Supreme Court case from 1969 gave birth to that idea. In Tinker v. Des Moines Independent Community School District,some high-school-age and even youngerstudents wanted to protest the Vietnam War. They came to school one day wearing black and handing out anti-war literature. Students who had family members fighting in Vietnam took offense, and the school tried to punish those who wore the armbands. The Supreme Court ruled the students had a right to express their viewpoints about that war, even though it offended many.

“The mere idea that certain speech is beyond the pale of public policy and public debate is a very dangerous concept,” Sharp said. “So we need to be very careful labeling any speech as ‘hate speech’ or anything like that because if we lose the ability to debate and discuss these ideas, we may lose the ability to promote ideas that very much embetter society as a whole.”

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