“Public universities cannot exclude a speaker based on their viewpoint, even a very offensive viewpoint. The law is clear,” said Erwin Chemerinsky, the dean of the School of Law at the University of California at Berkeley and an expert in First Amendment law.
And in a recent book Chemerinsky titled “Free Speech on Campus,” he and co-author Howard Gillman argued that private universities should adopt the same standard — even though they are not legally required to.
But Ben Trachtenberg, an associate professor of law at the University of Missouri, takes issue with that thinking in the following provocative piece. He writes:
For all the talk of “safe spaces,” “snowflakes,” and “crybullies,” we hear precious little about exactly why First Amendment doctrine is so wonderful that private colleges should adopt it voluntarily. After all, we take for granted that private institutions can impose religious obligations on students that would offend the First Amendment if enacted at state universities.
Trachtenberg has published work in the Florida Law Review, the Oregon Law Review, the Hastings Law Journal, the Nebraska Law Review, the New York Times and the ABA Journal, among other publications. And he has won a number of teaching awards. In 2012, he received the Gold Chalk Award for excellence in teaching from the University of Missouri Graduate Professional Council. In 2014, he won the Provost’s Outstanding Junior Faculty Teaching Award, and in 2015, he received the Husch Blackwell Distinguished Faculty Award from the School of Law.
He last wrote for this blog about racial bias in campus discipline, which you can find here.
By Ben Trachtenberg
Contrary to the arguments of those who would apply First Amendment free speech law to private universities, I see no reason why Brandeis University should be required to permit Nazis to march through campus shouting “Jews will not replace us!”
In their recent book, “Free Speech on Campus,” Erwin Chemerinsky and Howard Gillman write that even though the First Amendment is not binding on private institutions, they “draw no distinction between public and private schools when arguing for what they should and shouldn’t do.” They argue: “Freedom of expression … should be the same at all institutions of higher education.” In my new article, “Private Universities and the First Amendment,” I respectfully disagree.
In short, while the public University of Missouri might be required by U.S. Supreme Court precedent to permit a Klan rally on campus, I see no good reason for private Spelman College, a historically black liberal arts school, or Georgetown University, the country’s oldest Catholic and Jesuit university, to place such a requirement upon themselves.
For all the talk of “safe spaces,” “snowflakes,” and “crybullies,” we hear precious little about exactly why First Amendment doctrine is so wonderful that private colleges should adopt it voluntarily. After all, we take for granted that private institutions can impose religious obligations on students that would offend the First Amendment if enacted at state universities. Notre Dame requires two classes on theology, and Wheaton College mandates chapel attendance. Are they violating anyone’s constitutional rights? Clearly no. Any student opposed to these rules can simply take her business elsewhere.
Why then do conservative commentators, who normally could be counted on to defend the right of private institutions to set their own rules on their own land and to allow the free market to punish those who create stupid policies, reject so vehemently the idea that different universities will have different rules about speech?
And it’s not just the commentariat. Sen. Charles E. Grassley (R-Iowa) sang from the same hymnal when he proposed enacting a new federal law that would impose First Amendment free speech law on America’s private universities. Indeed, liberals get into the act, too, chastising college students for wanting to spend their tuition dollars at Klan-free zones, as though this is some sort of silly preference wise elders must mock with endless articles and op-eds.
In general, I strongly support free speech on campus, and I oppose efforts to ban speakers who are merely offensive or annoying. But I would distinguish Charles Murray from Richard Spencer. Murray has trafficked in tired ideas about race science. Spencer arrives on campuses, insults black students, and brings along violent goons. His 2017 visit to Gainesville cost the University of Florida hundreds of thousands of dollars. In addition, one of Spencer’s fans shot at anti-racist protesters.
And for what? If there is some sort of educational value associated with having Spencer informing audiences, “America, at the end of the day, belongs to white men,” I have not yet spotted it.
If Spencer’s visit provides little-to-no benefit, imposes massive financial costs, and risks violence, why tolerate his presence? At a public university, the answer may be that the Constitution — or, to be more precise, Supreme Court case law — demands it. So be it. Public university leaders must follow the law, cheerfully or grudgingly.
At private universities, however, the Constitution has nothing to say about whether white supremacist speakers should receive platforms. To quote the Dude in “The Big Lebowski,” “This is not a First Amendment thing, man.”
Private universities must decide for themselves what sorts of institutions they wish to be. Some will mandate chapel attendance, and some will take a more laissez faire attitude toward student religiosity. Diverse options with respect to religious instruction make American higher education better, not worse. Indeed, if Grassley suggested that private universities receiving federal funds should be barred from requiring Bible classes, the resulting outcry would deafen us all.
Why then should we advocate that every university treat bigoted, hateful speech in the manner required of public institutions? What exactly is so terrible about a college declaring, “On this campus, no Nazi marches are allowed”?
I realize that some cases will be more difficult to resolve than the not-so-hypothetical Nazi marches, Klan rallies, and cross burnings that many readers will find impossible to defend. What about Holocaust denial or whatever modern incarnation of phrenology posits that black people lack sufficient intellect to vote?
The fear of slippery slopes, along with valid concerns about administrative convenience, may cause some private university presidents to adopt a First Amendment-like free speech policy. That’s a reasonable choice, but it is still a choice, and no one should pretend that students seeking a Nazi-free campus are necessarily ignorant of the First Amendment or unwilling to honor our constitutional traditions.
The National Football League, at the behest of the president of the United States, has enacted rules designed to curb the expression of NFL players. It seems that the sight of players kneeling during the national anthem was too offensive for many fans to bear, and the league’s owners have acted to ensure that football games will remain safe spaces for those fans. While perhaps the president’s involvement creates some sort of constitutional issue, generally private employers are free to censor the political speech of employees. I do not like it, but my arguments against it are about policy, not constitutional law.
Back on campus, the free-speech debate is also mostly outside the scope of First Amendment doctrine. Private universities may restrict speech as they please, and even public institutions enjoy broad latitude to regulate the time, place, and manner of expression.
Instead of demagoguery about who loves the Constitution the most, our campus speech debates would benefit from discussions of what values our institutions exist to uphold. I expect that at many private institutions, such conversations would reveal that Richard Spencer and his white supremacist goons are not welcome, and deservedly so.