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Does Free Speech Protect Criticism or Open Inquiry?

Two recent incidents highlight nuances and misunderstandings in free speech.

Key points

  • Concerns regarding free speech on college campuses have increased in recent years.
  • Many individuals misunderstand free speech or value it only for their "side" of a conflict.
  • Free speech values sometimes come into conflict with each other and must be negotiated.
  • Concerns about increasing authoritarianism regarding speech on university campuses from both right and left are likely legitimate.

Two recent events captured national attention highlighting increasing concern for free speech on college campuses. Both highlight complexities and nuances in understanding free speech.

Most recently, students disrupted a debate at Yale Law School, viewing one of the speakers as working for a “hate group.” Reportedly, students incessantly interrupted speakers with shouts and obscenities and, upon leaving the room, banged on walls, and made noise so that the panel couldn’t be heard. Subsequently, federal appeals court Judge Silberman suggested the involved students shouldn’t be hired as law clerks, raising questions of blacklists.

In the other incident, University of Virginia student Emma Camp wrote in The New York Times expressing concern about chilled speech on college campuses. She noted survey data finding students are worried about speaking openly on campus for fear of social or academic punishment. She also recounted a class incident wherein she felt her speech was shamed by other students. Much of the ensuing debate (some of which on social media ironically became quite nasty and bullying) focused on the meaning of that anecdote.

The Yale case is a bit more straightforward. Drowning a speaker out so they cannot speak or be heard is a variant of the Heckler’s Veto. Traditionally, the Heckler’s Veto applies to situations in which disruptions result in government canceling speech. Yet, even for private institutions, we can understand disruptive behavior resulting in the inability for the event to transpire as a form of the Heckler’s Veto. Put simply, the behavior of the Yale students who were disruptive is antithetical to free speech values.

However, Judge Silberman’s proposed blacklist is also concerning. There is an argument that the students’ behavior raises reasonable concerns about their readiness for legal clerkships that may address free speech issues. An analogy may be a science teacher who expresses that evolution is not real. Such a stance would raise legitimate questions about their suitability to teach science. However, blacklists are chilling of speech, and no one, certainly not students, should be permanently judged by their worst moment. My thought here is that the university should address this via remedial education. Students who were disruptive, shouted obscenities, banged on walls, etc., could be required to take an additional class on free speech. Students who quietly protested or silently walked out should not be so required as their behavior was consistent with free speech values. After the remedial class, the matter should be dropped with no blacklist.

Emma Camp’s anecdote is interesting as harsh criticism, unlike the Heckler’s Veto, is consistent with free speech. In some areas, such as politics, journalism, and even science, we accept that bare-knuckled criticism is necessary for the full vetting of ideas. Yet even in science, we see things like bad retractions that appear geared to enforce orthodoxy and stifle unpopular views. Along those lines, what Camp is describing is social shaming used to chill speech which, as she noted, is a widespread problem now on university campuses.

The interesting thing here is that majority opinions freely spoken can (either purposefully or unintentionally) chill minority views, impeding their free speech. There are real risks that come with this, as this can cause groupthink (when people publicly support a majority view despite having doubts) and availability cascades (where people overestimate the evidentiary support for a belief and this gets reinforced in groups through social pressure) that result in catastrophic decision making, such as the Iraq War, or reflexive support for poorly supported beliefs such as in systemic racism in the modern US. This is a Gordian Knot for we must ask: Should universities restrict the majority view’s criticism of heterodox thoughts to allow more room for minority views? My guess is that many votes for yes/no would depend on whether an individual values the minority view in question (yes for ethnic minorities, no for conservative students).

In the university context, there’s an argument for developing contextual rules for discourse as civil and data-based. After all, dubious “misinformation” algorithms aside, much of social media dialogue is “free” yet simultaneously a toxic hellhole and perhaps we’d like to teach students to engage in elevated rational debate. In that sense, instructors can, often with the consent of students, develop rules for debate that maintain civility and respect, limiting pile-ons, and encouraging respectful disagreement with minority opinions. The obvious risk is that rules for civility can themselves be weaponized to chill speech, thus some deft handling is required on the part of instructors. If instructors themselves are ideologically rigid and skeptical of free speech, this is likely to be unsuccessful.

Two last points are worth noting. First, free speech does not begin or end with the First Amendment. De jure censorship involving government fines or imprisonment is certainly most serious. Yet, de facto censorship by private entities can also cause damage to individuals and chill speech, and enforce conformity. Second, college administrators often set the tone for free speech. I’ve been fortunate that my own Stetson University has been protective of speech, but clearly, administrators at other universities have failed their communities.

Not every free speech conflict has an obvious solution and sometimes legitimate free speech concerns may come into conflict. Yet, if we can encourage both involved parties to compromise and work through solutions, maximal free speech can be maintained for all. This is a value worth protecting.

More from Christopher J. Ferguson Ph.D.
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