Restoring Free Speech and Liberty on Campus

In Restoring Free Speech and Liberty on Campus, Donald Alexander Downs argues that U.S. colleges and universities, while pursuing the laudable goals of civility, tolerance, and respect for diversity, have trampled on student and faculty rights to freedom of expression and other liberties. Downs devotes the bulk of his book to case studies of four universities:

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Columbia University proposed a sexual misconduct policy that in one form prohibited the accused from having a lawyer present at campus judicial proceedings. In its final form a special administrator was placed in charge of education, prevention, and data collection regarding sexual misconduct as well as adjudication in such proceedings thus improperly mixing advocacy and judicial roles.  

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The University of California at Berkeley had a spate of incidents in which left wing students disrupted speakers at campus events, stole student newspapers containing conservative views, and intimidated student journalists.

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The University of Pennsylvania came to national attention after an orthodox Jewish student was charged with violating the campus racial harassment code. The student admits yelling, “Shut up, you water buffalo!” at a group of African American sorority women who were singing loudly under his dorm window. Although the facts of the case don’t support the charge of racial harassment, the case was dropped only after a firestorm of critical press attention.

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The University of Wisconsin at Madison enacted faculty and student speech codes similar to that of the University of Pennsylvania’s very broad racial harassment code but ultimately repealed them after an organized opposition (involving Downs) formed on campus.

On the whole, the facts of these cases as well as the legal and policy issues involved had been pretty well vetted prior to Downs’ book, and he doesn’t claim to break new ground. Downs’ primary objective is to provide scholars and civil liberties activists with an understanding of how and why some universities effectively resist threats to free speech and civil liberties and others succumb to these illiberal movements (“illiberal” in the sense of being against classical liberal values of free expression and freedom from restraint). In this respect, the book is an excellent practical guide for anyone in the midst of such a controversy.  It is also a valuable study of what Nancy Fraser (1992) calls, “actually existing democracy,” by which she means not how public deliberation is ideally conducted, but the actual process of opinion formation and decision making in public spheres.

However, given Downs’ objective, his book is not an ideal primer on the debates regarding campus speech codes, harassment policy, or debates about the role of speech in society.  Just enough law is presented for the reader to understand Downs’ arguments but not enough to firmly grasp why some scholars support speech codes and broadened sexual harassment policies. When it comes to deeper issues regarding the role of speech in society, Downs tries to be fair and is less polemical than other civil liberties activists who have recounted these events. Perhaps his evenhandedness is due to having once been in the opposing camp. He once argued that the proposed Nazi march in Skokie, Illinois, did not deserve first amendment protection because of the trauma it would inflict on the many Holocaust survivors who lived there. Thus he cites opposing thinkers such as Richard Delgado, Mari Matsuda, and Catharine MacKinnon, and has a remarkably fair (but thin) summary of Michel Foucault and postmodernism (though he omits another important player in first amendment debates, the rhetorician Stanley Fish). Despite these citations, a reader interested in a deep understanding of their arguments should go elsewhere.

Downs’ basic claim, however, is correct: There have been frequent infringements of free speech and other liberties on campuses across the country. I make this statement not only as a professor who teaches a course on freedom of speech, but also as one who teaches courses in the sometime opposing camp (gender studies and so-called “multiculturalism”). I also agree with Downs that beyond actual violations of free speech at public institutions (which are the only institutions where the first amendment applies), private institutions have sometimes compromised free speech and due process ideals. Moreover, campuses are often pervaded by illiberal attitudes regarding the toleration of conservative opinions. (Though I do wonder if this is true at community colleges, which enroll almost 40 % of all undergraduate college students—or at conservative religious schools.)

Downs argues that illiberal attitudes regarding unpopular speech along with a lack of organization on the part of campus civil liberties groups are at the heart of the problem. His book continually highlights attacks in which supporters of free speech and due process rights are denounced in McCarthy-esque fashion as racist and sexist and are subjected to various forms of intimidation. In the conclusion of every chapter, Downs recalls the work of Timur Kuran (1995) who states that in atmospheres hostile to dissent, many people will withhold their opinions—thus damaging the democratic deliberative process. Downs’ solution is to revitalize the campus ethic for civil liberties and to mobilize campus civil liberties advocacy groups to safeguard these rights.

Downs adopts the view that individuals must face sometimes offensive speech with courage and more speech rather than censorship. Unfortunately, this theme of individual courage and self-reliance appears at times to be selectively required of minority groups and not of free speech advocates who frequently appear, by Downs’ own description, to be subjected to nothing more than harsh criticism. Downs often classifies such criticism under the vague rubric of “intimidation” in an attempt to undermine its status as protected expression.

Downs’ move is consonant with his belief in the distinction between speech (which is protected) and action (which may be proscribed). Downs repeatedly states that there is a distinction between codes of conduct (that legitimately prohibits actions such as harassment) and codes regulating speech (that illegitimately prohibit expression). This view ignores the fact that we treat many kinds of speech as actions. MacKinnon (1993) for example has rightly observed that there are many purely verbal crimes such as bribery or price fixing and that a sign saying “White Only,” in a store, while expressing a viewpoint, is legally treated as an act of discrimination (p. 12–13).  Downs’ failure to recognize that speech sometimes should be treated as action leads to a double standard in which he defends free speech activists against harsh criticism (“action”) but attacks speech codes that aim to protect minorities and women from the harsh speech of dominant groups (“expression”).

Downs, while refusing to recognize this problem, still suggests the prudent course: Colleges should avoid punitive codes for all but the clearest cases of illegal action. The rest of the time, universities should make everyone feel welcome through “exhortation, setting positive examples, and demonstrating moral support for individuals who are in need of such support” (p. 273). This has the additional virtue of treating the vulnerable as potential agents capable of participation in their own defense, rather than simply as victims, and the virtue of treating the insensitive as ultimately redeemable, rather than objects worthy only of vilification. That after all, is what education is supposed to be about.

References

Fraser, N. (1992). Rethinking the public sphere: A contribution to the critique of actually existing democracy. In C. Calhoun (Ed.), Habermas and the public sphere. (pp. 109–142). Cambridge, MA: The MIT Press.

Kuran, T. (1995). Private truths, public lies: The social consequences of preference falsification. Cambridge, MA: Harvard University Press.

MacKinnon, C. A. (1993). Only words. Cambridge, MA: Harvard University Press.