Free speech on campus: it’s complicated

In 1952, a young historian named Vera Shlakman was hauled before a US Senate committee investigating ‘subversion’ in public education and was summarily fired from her college-teaching job after she refused to answer all the committee’s questions about her political beliefs and associations. Shlakman was one of innumerable teachers who lost their livelihoods, and endured decades of FBI surveillance, because of the ferocious political inquisitions of the anti-Communist ‘Red hunt’ era.

By a wonderful quirk of history, one of Shlakman’s students, Harry Keyishian, later became a college teacher himself, and the lead plaintiff in a 1967 Supreme Court case that finally vindicated the free-speech rights of the teachers who had been victimised by the Red hunt. The Keyishian decision rejected political loyalty programmes for teachers and proclaimed academic freedom ‘a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom’.

Despite this inspiring rhetoric, the Supreme Court in Keyishian did not actually define academic freedom, or explain its limits. Surely, for example, it doesn’t give professors a right to engage in shoddy scholarship, to sexually or racially harass their students, or to depart radically from the subjects they are hired to teach.

Similar limits necessarily apply to free speech for students. We can agree that university policies imposing speech codes, mandating trigger warnings for course curricula, or consigning pickets and leaflets to tiny ‘free-speech zones’ are gross affronts to the basic freedom of thought that ought to characterise educational institutions. But that doesn’t mean free speech is an absolute right on campus any more than it is in the wider world, where laws against defamation, invasion of privacy, threats and sexual or racial harassment are legitimate limits on unfettered expression.

Admittedly, all of those laws can be misused, or applied too broadly. Free speech ought to be the ‘default’ position in any democratic society, and exceptions should be narrow. The line-drawing is sometimes difficult, but it has to be done.

Let’s take a few examples from academia. Last year, a US advocacy group called the Freedom From Religion Foundation accused a physics professor at a Midwestern university of teaching religious indoctrination, not science. And indeed, his course syllabus was replete with creationist texts. An argument was made that academic freedom protected both the topic of the course and the professor’s choice of assigned readings.

The argument was misplaced. The freedom to teach does not include the right to offer a course that the university—informed, hopefully, by faculty experts and department heads—does not think amounts to good science. The controversy wasn’t about the choice of particular texts or the conduct of class discussion; it was about the presence or absence of a scientific foundation for the course.

My second example involves not classroom teaching but scholarship. In 2007, a historian named Norman Finkelstein was up for tenure at DePaul University in Chicago. Professor Finkelstein’s writings criticise what he calls ‘the Holocaust industry’, including the Israeli state’s use of the Nazi genocide to justify its actions today in the occupied territories. Harvard law professor Alan Dershowitz attacked Finkelstein in a letter to the DePaul faculty, and lobbied the administration to reject the tenure application. Dershowitz prevailed, despite favourable votes from Finkelstein’s department and the College of Arts and Sciences personnel committee. Finkelstein called the tenure denial ‘transparently political’ and ‘an egregious violation’ of academic freedom; he later reached a settlement with the university in which it acknowledged that he was ‘a prolific scholar and outstanding teacher’.

Tenure decisions are by nature subjective, and it’s sometimes difficult to separate political considerations from legitimate judgments about a scholar’s work. But given the support of his department and the College of Arts and Sciences, the circumstances in Finkelstein’s case suggest that the tenure denial was improperly based on the controversial nature – not the quality – of Finkelstein’s work; hence, a violation of academic freedom.

The highly charged Israel-Palestine conflict figures in my third example as well. In recent years, some Jewish advocacy groups have tried to shut down anti-Israel protests on US campuses with accusations that they create a hostile environment for Jewish students. (Other Jewish groups have objected to these tactics.) Now, it is easy enough to claim that political protest, which often uses inflamed rhetoric, creates a hostile environment for somebody, but the breathing space that free speech needs to survive can be suffocated by such broad charges.

Creating a hostile environment can amount to harassment if it is intentionally directed towards an individual or group and is so pervasive and severe that it interferes with their ability to function on the job or at school. But being offended – even outraged – is not the same as being harassed, and the accusations against the anti-Israel students are fairly transparent attempts to silence their voices on campus.

Especially at a university, which the US Supreme Court has recognised as a ‘quintessential marketplace of ideas’, we should be sceptical when anti-harassment rules are aimed at political protest. But that doesn’t mean we can avoid the sometimes difficult job of line-drawing. Life is not simple; rights are not simple; and ‘absolutism’, even in defence of freedom, is not sensible.

Marjorie Heins is a First Amendment lawyer, writer and founder of the Free Expression Policy Project. She is the author of Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti–Communist Purge?, published by New York University Press. (Order this book from Amazon(UK))