Keeping Universities Safe for Free Speech
By Mike Tolhurst
University campuses should be safe spaces — safe for students and community members to be free from physical violence, safe for intellectual stimulation, and safe for students and faculty to express themselves. So when universities are faced with protesters who aim to shut down speakers on campus by blocking access to a building, heckling, or, especially, using physical violence, administrators should be free to respond appropriately. Anyone who disrupts the educational experience or breaks the law should be subject to disciplinary action.
The Goldwater Institute model policy on campus free speech rightfully captures the insight that sometimes, regrettably, universities do need to punish students. However, the Goldwater Institute’s suggestions for accomplishing this would do more to damage the cause of free speech than solve it. Specifically, section 1.9 of the model policy states: “Any student who has twice been found responsible for infringing the expressive rights of others will be suspended for a minimum of one year, or expelled.”
Campus disciplinary codes are typically vague and subject to less due process than the legal system, but this provision from the Goldwater Institute is particularly problematic. Its overbroad nature allows for abuse, it does not respect institutional autonomy, and it could unnecessarily isolate potential allies. Imagine, for example, a group of pro-life students protesting (but not obstructing) a pro-choice speaker, thus running afoul of the model policy’s provisions. While the policy’s drafters may not have intended to subject peaceful protesters to such harsh punishment, the inflexible nature of the policy could lead to this unfortunate consequence.
Though measures like the Goldwater Institute’s model policy may attempt to protect campus free speech, fear of punishment can have the opposite effect of chilling speech. A mandatory punishment scheme does not allow universities discretion to act appropriately according to local circumstances. While state legislatures are ultimately responsible for the success of their state university systems, it is important for universities to have a wide sphere of autonomy in order to ensure academic freedom. We have already seen instances of state legislatures attempting to mandate what can and cannot be taught in the classroom: Recently, a failed legislative proposal in Arizona attempted to ban professors from teaching social justice courses.
Furthermore, certain efforts ignore how individuals across the ideological spectrum have stood up for free speech. Proposals like the “watchlist” from Turning Point USA, which suggests that the fundamental relationship between conservative students and liberal professors is one of conflict, are both worrisome and inaccurate. Many professors of diverging political ideologies have signed a petition launched by Princeton professors Robert George and Cornel West in favor of free speech, and Senators Bernie Sanders and Elizabeth Warren have defended Ann Coulter’s right to speak at UC Berkeley. Measures that polarize the debate of free speech into competing camps of “right” and “left” make such important cross-ideological support more difficult.
Ultimately, a mandatory minimum punishment provision, like what the Goldwater Institute suggests, makes the discussion less about the positive good of free speech and more about the punishment of student protestors. While punishment is sometimes appropriate, this policy plays into the existing misconception that the right only stands up for speech with which it agrees. Principled individuals across the ideological spectrum care about free speech. Policy conversations should work with this shared concern, not against it, as they aim to protect free speech.
Michael Tolhurst is a Senior Policy and Research Analyst at the Charles Koch Institute. Previously he was a university lecturer in philosophy.