Erwin Chmerinsky

The Washington Post asked me to review this slim book on free speech by two senior administrators at the University of California. I repost it here.

Surveys show that more than 70 percent of college students believe that offensive speech should be subject to disciplinary action, and many commentators profess shock at this lack of commitment to the principle of free speech. What’s this country coming to? Erwin Chemerinsky and Howard Gillman, academic leaders at the University of California, believe that the commitment to free speech is not only an essential value for any democracy, it is the value upon which all other democratic values depend. They take the “free market” approach to campus speech: Just as more competition in the economic marketplace makes it more likely that goods and services will improve, so more competition in the “marketplace of ideas” makes it more likely that better theories and practices will be developed. The cure for offensive, hurtful talk should be “more speech,” not the regulation of speech. It is through more speech that avenues for social change and scientific advances are created. It is through more speech that bigoted attitudes about minority groups are changed. Free speech, in this view, is the fuel for progress, bending the arc of history toward prosperity, understanding and justice.

As a teacher and president of a university, I find much to agree with in Chemerinsky and Gillman’s account of campus speech issues. And I share their concern that too many people fail to recognize that restrictions on expression have most often been used by those in power to censor those who are trying to create social change. I can admire that the authors, themselves in positions of academic authority, maintain what they call “an instinctive distrust of efforts by authorities to suppress speech.” But I cringe when these senior university officials glorify their favorite examples of liberal social change (such as the first years of the free speech movement at Berkeley) and self-righteously proclaim, “If you value social order and conformity more highly than you value liberty and democracy, then you will not support free speech no matter what else we say.” Readers may be forgiven for wondering whether they must be conformists if they fail to agree.

To find justifications for their dogmatic approach to freedom of expression, these fundamentalists, like so many others, look to the past. “History demonstrates,” they write with abandon, “that there is no way to define an unacceptable, punishment-worthy idea without putting genuinely important new thinking and societal critique at risk.” Their rhetoric suggests that a succession of horrible events will be the unintended consequence of even modest restraints on expression. If any idea is regulated, they seem to think, all ideas are at risk for censorship. As many have done before them, they quote John Milton’s argument that individual opinions must be allowed to flourish if we are to pursue truth. But as Stanley Fish has pointed out, Milton indeed defended diversity of opinion — among Protestants but not Catholics: “Them we extirpate,” Milton wrote.

Fish and others have underscored that defenses of free speech always exclude something. For Milton, it was Catholics; for some today, it might be child pornography or incitements to violence. Usually, the exclusions can be enforced informally by social or professional pressure (appeals to civility, ostracism), but borders for acceptable speech also get codified in rules and regulations. And there are always borders.

Even Chemerinsky and Gillman recognize that the marketplace of ideas on campus needs some regulation. Harassing speech can be punished, they aver, but only if true harassment is taking place. Although they don’t acknowledge it, this is a political determination — a judgment about discrimination, history and power. They write that “speech should be subject to punishment if it causes a reasonable person to fear for his or her safety,” but they insist that only physical safety counts. This, too, is a political judgment about what really counts as harm. Making judgments about harassment is something professors and administrators have to do — but there is no evidence that this leads to conformism or authoritarian control of expression.

Issues concerning either the Citizens United ruling or the value of equality don’t get much attention in “Free Speech on Campus.” And the failure of the marketplace of ideas to create intellectual diversity on many campuses goes unremarked. To be fair, this is a very brief book, and it does a solid job of exploring some of the issues facing professors, administrators and students today. Chemerinsky and Gillman maintain that professional norms should determine how people speak in class, but they are adamant that outside the classroom any regulation of expression must ignore the content of what is being said. They are convinced that the regulation of content, even when the intention is to protect the vulnerable, puts us on a path to authoritarian censorship.

The appeal to the free exchange of ideas, no matter what the cost to historically vulnerable groups, doesn’t convince most of today’s college students because many of them recognize that not all ideas make it to the marketplace and that, when all kinds of discourse are tolerated, certain groups tend to get hurt again and again — creating discriminatory hurdles for their members. Markets, including the ones for ideas, often work very well, but when they are unregulated, real pollution, real harm, occurs, all too often wounding people who historically have been abused by those with power and privilege. Chemerinsky and Gillman quote historian and New Yorker columnist Jelani Cobb in this regard: “Freedom to offend the powerful is not equivalent to the freedom to bully the relatively disempowered.” But they prefer historian C. Vann Woodward’s warning that well-intentioned restrictions on speech can lead to tyranny.