A College Free Speech Crisis: When Safety Becomes Dangerous

This is Part 1 of a four-part series in which a college professor examines modern challenges to campus free speech and how we can overcome them.

Over the past few decades, the ranks of conservative and libertarian faculty on college campuses across the United States have notably thinned. At most institutions, faculty committees play a key role in selecting their new colleagues—and faculty, especially in the liberal arts and social sciences, tend to seek colleagues who share their political views. The impact on the ideological identifications of faculty is undeniable: According to one 2021 survey, only 3% of Harvard faculty self-identified as “somewhat conservative” or “very conservative.”

Over time, this phenomenon of ideological replication has had the effect of weeding out right-leaning academics and creating groupthink. Constant mutual reinforcement and affirmation within the academy have created profound social pressure to conform and have turned many campuses into islands of unanimity that no longer reflect the pluralistic and conflicting viewpoints of the nation at large.

The election of Donald Trump, a repulsive figure to most academics, charged like-minded campus leaders with a sense of moral urgency. That urgency, coupled with the popular outrage over the death of George Floyd, especially among young adults, created an opportunity to implement radical changes in higher education. These changes include diversity, Title XI statements in syllabi, and offensive language “task forces” that publish lists of words that should no longer be used on campus.

The recent abandonment of free speech values on campus doesn’t seem to be the result of negligence or mistake. Instead, it’s the manifestation of a new political conviction that other social and political interests—namely those consistent with the illiberal values of the “Great Awokening” or what author Wesley Yang calls “the successor ideology”—are more important than the pursuit of truth.

What’s Your Identity?

The most essential aspect of a student’s identity should be that of truth-seeker. The common quest for knowledge should bring all students together in a common cause, regardless of the other aspects of their identity. But that’s far from the way things are on today’s college campuses, where identity is far more atomizing than uniting.

At the core of the ideology now prevalent on campuses is a kind of extreme identitarianism that prioritizes certain nonintellectual features, such as race and sex, as the most important characteristics of an individual’s identity. Faculty and staff teach this identitarianism in courses and implement it in campus policies. Predictably, students then divide into groups, including college-recognized student organizations, according to these identities.

These divisions take root and harden. We’ve now reached the point that some universities allow racially segregated housing and think it wise to hold separate graduation celebrations according to race, gender identity and sexual orientation. As a result, scholarly inquiries into identity issues are frequently treated as threats. Even the most reliable test of truth, skeptical questioning, is rejected as hate. Consequently, higher education has entered a transitional stage: It’s moving away from truth-seeking to truth-preaching.

Far From Plato

This environment is a far cry from what Plato envisioned when he founded the first university about 2,500 years ago. He recognized that the discovery of truth comes through free-ranging discussion and debate. This applies to all intellectual pursuits, even those where there is profound disagreement. He also believed that the difference between Greeks, whom he thought civilized, and the barbarians was that when Greeks disagreed with one another, they resolved disputes with argumentation rather than violence—with reason, not rage.

Following Plato’s guidance, college campuses should be special enclaves carved out of the larger society, where every other social interest is subordinate to the pursuit of knowledge. No question sincerely asked and no viewpoint honestly expressed should be discouraged on our campuses, no matter the offense it might cause. After all, some of the scholarship’s greatest discoveries—that the Earth traveled around the sun, for instance—were first condemned as offensive.

During intellectual discussion, all conclusions should be tentative, partisanship should give way to inquiry, and thinking independently should be considered just as important as thinking clearly. The impulse to conform with—rather than scrutinize—social, cultural or political orthodoxy is a liability that must be kept in check. Freethinkers shouldn’t just be protected on our campuses. They should be rewarded. As Plato’s hero Socrates explained to the government that ultimately executed him for his offensive speech, “the unexamined life is not worth living.”

Dissenting, even transgressive, views are essential features of any worthwhile education. Even when these don’t turn out to be true and correct, they can serve the valuable purpose of, as philosopher Immanuel Kant said, interrupting our “dogmatic slumber” by compelling us, often against strong instincts, to reexamine the underpinnings of our own beliefs and, as a result, develop a deeper understanding of ourselves and the world around us.

Today’s colleges seem to have largely missed this lesson. Instead of explaining the long-term intellectual benefits students will gain from the short-term emotional discomforts that come from listening to politically heretical speech, colleges have decided to protect students from growing pains by stopping their growth—for example, by creating “safe zones” that juvenilize young adults by implying that the larger campus is too dangerous for them, and where students can exist unchallenged by viewpoints different from their own.

But it’s from intellectual danger zones that bold, creative and transformative ideas emerge. The purpose of college is to advance knowledge, and to achieve this bracing goal, every classroom and professor’s office should be such a danger zone—where any idea is open to adversarial questioning and other forms of truth-testing. This should be true of all academic disciplines but especially those in the humanities and social sciences, where debatable values, not technical skills, are discussed. In these spaces, no claim or question honestly offered in the spirit of inquiry should be off-limits. Not surprisingly, these intellectual danger zones are fast disappearing.

However, creating these danger zones should be a core part of a professor’s job description. Treating college students as adults and welcoming them to the practice of free intellectual exploration doesn’t make them “unsafe.” To the contrary, it strengthens their moral fortitude, imparts skills that protect them from false claims, and puts them on the path toward maturity and, hopefully, wisdom.

To create intellectual danger zones, professors and students need room to breathe. They must be free to speak spontaneously and unguardedly, with full access to the English vocabulary and without fear of punishment for unwittingly breaking rules during the give-and-take of real-time discussion.

Yet colleges and universities nationwide are aggressively policing language and ideas. Many now seek to shrink our collective vocabulary by deleting words, even when uttered in good faith and for learning’s sake, from our language. In recent years, ideas long considered benign have been made radioactive, subjecting professors to social media shaming, official investigations, suspensions and firings.

The boundaries of permissible speech keep tightening. Faculty and students who want to explore are aware that lines are being redrawn but don’t know exactly where, so a pall of anxiety and self-censorship has captured the discourse. Academic freedom is in free fall.

Our Natural Aversion to Free Speech

The current academic free speech crisis stems from two causes. The first is that free speech principles are unnatural and counterintuitive. This has always been the case and, given human nature, always will be. The second, addressed in the next article in this series, is that now young people are exhorting—demanding, even—that older generations use a heavy censorial hand to promote social and political goals. This is unprecedented in our history and, without immediate and significant action, may prove ruinous to the mission of higher education.

Freedom of expression and academic freedom are fundamentally unnatural and counterintuitive.

Let’s unpack the first cause. Academic freedom and freedom of expression are among history’s most radical and difficult-to-follow moral and political ideals. As with other noble but fundamentally unnatural ideals, like “turn the other cheek,” they’ve rarely even been tried—even among the most permissive nations during the most peaceful epochs. As political, legal and pedagogical principles, they’re downright bizarre.

That’s because one of the core functions of governments, including college administrations, is to punish harmful actions. For that reason, every college has a student code of conduct. On well-functioning campuses, administrations seek to enforce their codes. The severity of a punishment usually exists in proportion to the amount of harm caused.

Conduct whose harmfulness might be considered unserious, like occasional beer-drinking or noisiness in the dorms, might be punished lightly or moderately. By contrast, the most serious offenses—sexual assaults, physical fights and so on—are punished more severely. Faculty and students expect administrations to protect them by stamping out this behavior. It’s an inclination derived from humankind’s most primitive and urgent instinct: self-preservation.

Those who argue that such conduct should go unpunished, or perhaps even just treated a little more leniently, naturally arouse fear and invite suspicion. They're often condemned as either being indifferent to the harm the conduct causes or, more ominously, carrying a hidden desire to engage in that conduct themselves.

Imagine someone who strongly and publicly advocates for ending a ban against academic plagiarism, for example. How would most listeners immediately react to hearing these views? Human nature and our shared experiences make the answer self-evident: They’d consider the speaker dangerous because 1) should they prevail, plagiarism might increase; 2) even if their advocacy fails, some who might otherwise be deterred from engaging in plagiarism might be emboldened; and 3) their motives might seem suspicious. After all, why would someone call for ending a plagiarism ban unless they themselves wanted to plagiarize? All three responses provoke the urge to censor.

These three responses apply with equal fervor to those who advocate “dangerous ideas” instead of dangerous conduct. When university administrators encounter speech spreading what they believe to be dissenting or transgressive beliefs—promoting racism, sexism, homophobia, etc.—they likewise tend to do what comes naturally and intuitively: punish the speaker.

For instance, if a self-proclaimed woman-hating speaker encourages listeners to commit a sexual assault on campus, an administrator will instinctively seek to punish both the assailant and the speaker, without whom harm would not likely have occurred. In this example, the speech is the immediate cause of the harm. But what about someone who writes misogynistic literature or gave a misogynistic lecture that formed the views of that speaker? Today, campus censorship operates on both these levels: Not only does it punish direct advocacy, but it targets ideas, often much more benign than actual misogyny.

Many of those deemed to be purveyors of “harmful” theories are being silenced, shamed and shunned. And speaking isn’t even necessary: Georgetown Law professor David Batson was publicly condemned and pushed out of his position for speech, or actually non-speech. Batson stood mute when, in a conversation with another professor, his colleague uttered opinions on race that the law school found unacceptable. Batson’s dean found that he’d failed in his duty to disagree with the views of the other professor.

When we abandon persuasion and counterargument and indulge our natural tendency to purge so-called harmful ideas, censorship spreads like a contagion. However, First Amendment principles stand in the way of this tendency. They presume—require, actually—a shared national conviction that the short-term harms concomitant with tolerating harmful speech are ultimately redeemed by long-term benefits that will make us a freer, happier and more advanced society. To enjoy these benefits, we must constantly do the hard work of disciplining our urge to silence ideas we hate and find threatening.

A Legal History of Free Speech Protection

Campus communities must have faith that, in a free contest of ideas, harmful ones will be exposed, refuted and cast aside. As Justice Oliver Wendell Holmes, Jr. once put it:

To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas…

This is a daunting task. The First Amendment flatters us with the presumption that our capacity for reason, resilience and delayed self-gratification is strong enough to remove the coercive power of the state from our intellectual, social and political disputes. No other nation on earth has dared give human beings so much credit.

This radically libertarian understanding of the First Amendment didn’t fully emerge until, amid patriotic war fever, Congress passed laws punishing anti-war speech so severely that two Supreme Court justices, the aforementioned Holmes and Louis Brandeis, began to worry that their enforcement was changing our identity as a nation for the worse. The Espionage Act of 1917 and the Sedition Act of 1918 put anti-war speakers around the nation in federal prisons—many, including presidential candidate Eugene V. Debs, with sentences of 10 or more years. After originally voting to uphold these laws, these two Harvard-educated intellectuals realized that what they valued most about America—our democratic governance, individual liberties, the bustling exchange of ideas—was in jeopardy.

For many years thereafter, they wrote in defense of free speech, frequently in ruling dissents. Eventually, Holmes and Brandeis convinced the court, and ultimately the American public, that tolerating unpopular and dangerous ideas was a principle championed by “those who won our independence” and was at the core of America’s greatness. They urged us to take pride in having the courage to embrace “freedom for the thought that we hate.”

The Supreme Court overturned the criminal conviction of a political radical for the first time on free speech grounds in 1927. Our faith in this unique “experiment” in freedom of expression, as Justice Holmes called it, may have reached its zenith, however, in 1969 when the court unanimously overturned the conviction of Ku Klux Klan member Clarence Brandenburg. Brandenburg had threatened to take his band of masked and armed would-be marauders to Washington, D.C., and take “revengeance” against the federal government that, he claimed, had become hostile to whites like him. Brandenburg v. Ohio overturned the last of the repressive World War I-era precedents and implemented a new rule, largely derived from the opinions of Holmes and Brandeis, that made it nearly impossible for the government to punish politically subversive speech.

Since then, free speech, even for the most despised, has become a distinguishing feature of our national self-definition. In the 1989 case of Texas v. Johnson, for instance, the Supreme Court ruled that a protesting anarchist in Texas, tailor-made for a 20-year prison sentence in 1919, had a First Amendment right to publicly burn an American flag in protest against the government. In his opinion for the court, Justice William J. Brennan, Jr. wrote that the Constitution afforded the angry majority of Americans who were offended by the sight of an intentionally burned American flag a remedy: They are welcome to wave flags of their own. This is America, after all.

Likewise, in the more recent case of Snyder v. Phelps, an energized gaggle of cultists known as the Westboro Baptist Church sought to maximize publicity for their church by protesting outside the funeral of a marine killed in action. They carried signs with insulting, provocative messages designed to shock onlookers and cause them emotional distress: “God Hates You” and “Thank God for Dead Soldiers” were among the tamest. The dead marine’s father successfully sued the protesters and won a large amount in damages.

But the U.S. Court of Appeals for the 4th Circuit reversed the judgement, and the Supreme Court upheld the reversal. Quoting Justice Brennan’s opinion in another case, Chief Justice John Roberts reminded us that “the First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.’” And for that reason, “What Westboro said, in the whole context of how and where it chose to say it, is entitled to ‘special protection’ under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.”

For the past few generations, our case law has been replete with cases like these. In case after case, the Supreme Court has performed its necessary teaching function by reminding us that even ideas that cause pain and attack the values we hold dearest—ideas that the vast majority would have silenced—mustn’t be censored. For the most part, citizens, including those on our campuses, listened.

But our collective faith in freedom of expression, so strong for so long, is now in crisis. The nation is questioning whether freedom is worth the trouble, or, as former Stanford Law School Associate Dean Tirien Steinbach notoriously put it while a mob of her students screamed at a guest speaker, “the juice is worth the squeeze.” And public trust in the Supreme Court, the institution tasked more than any other with protecting freedom of speech, is at an all-time low.

Unfortunately, the crisis is most acute precisely where freedom of expression is most essential. For the past half-century, our colleges and universities have modeled free speech values for the nation—teaching Americans how to discipline the urge to censor and reminding us of the benefits of the free exchange of ideas. That’s changing. Our intellectual danger zones are facing an existential threat: They’re in danger of becoming safe.

This article has been adapted from “Our Emersonian First Amendment,” published on the Grand Valley State University Koeze Business Ethics Initiative website, and from written testimony submitted to the Ohio House of Representatives' Higher Education Committee.