Free Speech on Campus & ‘Unlearning Liberty’

Thank you to Eugene for inviting me to guest blog on The Volokh Conspiracy this week. By way of introduction, I am a First Amendment lawyer and the president of the Foundation for Individual Rights in Education (FIRE), and my new book, Unlearning Liberty: Campus Censorship and the End of American Debate, hit the bookshelves just last week.

As some readers know, Eugene has taken a special interest in campus censorship. He has frequently highlighted FIRE’s work on this blog and was a keynote speaker at our 10th Anniversary Dinner. We have also worked together on a couple of cases, including State v. Drahota and Snyder v. Phelps.

This week, I will be writing about the reality of campus censorship, the prevalence of campus speech codes, and numerous shocking stories that show how even relatively tame and uncontroversial speech is targeted. Look for my next post to see some remarkable cases of campus censorship.

But I will also be going beyond the laundry list of horror stories and discussing the many ways in which campus censorship harms us all. As I discuss in my book, I believe that it damages our greater society in two distinct ways.

The first and most dangerous harm is that speech codes and ridiculous “free speech zones” make students far too comfortable with restrictions on their freedom of speech. In a recent case at the University of Cincinnati, for example, libertarian students were restricted to only 0.1 percent of campus when they wished to collect signatures for a ballot initiative, and were threatened with police action if they strayed outside those boundaries. Further, I argue that frankly creepy indoctrination programs like the one run out of the University of Delaware teach students that censorship of “wrong” opinions is what good and educated people should do. The combination of a lack of awareness of our basic rights and the belief that freedom of speech is an impediment to, rather than a necessary component of, social progress poses a long-term threat to our freedom.

The second harm is subtler, but it’s one we see every day. If higher education were living up to its goal of making people deeper, sharper, and better critical thinkers, we could reasonably expect to live in a golden age of discourse. After all, more of our population is college educated than ever before. But I don’t believe anybody thinks that’s the case. By tolerating censorship and by making it risky for students to honestly speak their minds, universities encourage students to play it safe and talk only to those students with whom they already agree — a tendency that can’t help but spill over into the world off campus once those students leave. This means that higher education, an institution that should be opening people’s minds to new ideas and dissenting opinions, may actually be supercharging our political polarization.

One of the most intriguing pieces of data I came across while researching Unlearning Liberty is that there is an inverse relationship between how much education people have and how frequently they talk to those with whom they disagree politically (this research is covered briefly in Diana Muntz’s excellent Hearing the Other Side: Deliberative versus Participatory Democracy). In other words, there is evidence that the more schooling you receive, the tighter your echo chamber becomes. A truly educated person, however, should develop the intellectual habit of actively seeking out challenging debates rather than settling into a self-affirming clique.

One theme that I started to develop in the book that I hope to explore further in future writing is how higher education legitimizes and hones what I call “cheap dodges” to debate and discussion. Probably the most well-worn of these campus dodges is the claim of being “offended” by certain speech, but other tactics exist, including the related concept of “feigned outrage.”

In illustrating what my friend and Brookings Institution scholar Jonathan Rauch likes to call the “offendedness sweepstakes,” I draw on a number of examples from popular culture, including the whole kerfuffle around Rush Limbaugh and Sandra Fluke, and other controversies involving Bill Maher, Sarah Palin, and, most ridiculously, Robert DeNiro and Callista Gingrich.

I also identify cheap dodges that I have run into, both in law school and later on in my work with FIRE. I refer to them as “selective relativism” (the ability of some students to be morally absolutist at one moment and relativist the next, depending on whether it allows them to short circuit a debate they don’t like) and “selective uptightness” (similar to selective relativism, of course). For an illustration of the latter, check out this wacky story about an incident at Cornell involving Margaret Cho and a forbidden font. Yes, a forbidden font.

This all brings me to one of my goals for the week. I hope to be able to take advantage of The Volokh Conspiracy community’s collective genius and ask you, the readers, to analyze some of the theories I discuss in my new book. I have two questions for you:

1) If you do agree that we as a society have become too adept at using cheap dodges to avoid meaningful debate, what do you think the most common of these tactics are?

and

2) Do you think our colleges and universities are doing a good job of teaching students to avoid these easy outs, or are they in fact encouraging them?

Of course, if you don’t think the use of easy tactics to avoid debate is currently part of a societal trend, please let me know. I’m looking forward to your responses!

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