Controversial Campus Protests Continue to Raise First Amendment Questions and Concerns
By John K. Wilson, Author and Former Fellow, University of California National Center for Free Speech and Civic Engagement, and Mark Berkson, Professor, Hamline University
Canceling Controversial Speakers Is Never Justified
By John K. Wilson – Author and Former Fellow, University of California National Center for Free Speech and Civic Engagement
The Oct. 7, 2023 attack on Israeli civilians by Hamas and the subsequent Israeli-Hamas war in Gaza sent shockwaves around the world, spurring debate over moral justifications for violence. It also led to calls to censor offensive speakers on college campuses.
The University of Vermont canceled Palestinian activist Mohammed El-Kurd’s scheduled on-campus speech on Oct. 26, forcing it to be held online. The University claimed there were “safety and security” concerns but never offered evidence. A FOIA request from the Foundation for Individual Rights and Expression found no indication of any specific security issues. Instead, an email from Dean Bill Falls lamented the “damage” to the community and added, “I am stuck between censorship (requiring the event to be canceled) and risking harm to the community.”
We Need to Prioritize Free Speech Over Prior Restraint
While an immediate, credible threat of deadly violence may justify postponing any campus activity until the area can be secured, safety must not become a pretext for censoring controversial views. This endangers the whole community by rewarding and encouraging threats. Censoring campus speakers is particularly dangerous because the speakers most likely to be banned are those who challenge powerful interests and present minority viewpoints. Giving administrators the power to decide who is allowed to speak is an authority prone to abuse.
According to Yale Law School’s former Dean and current professor Robert Post, “If a campus speaker hurls personal insults at students—if he outs them or individually intimidates them—he has no business on campus.” But colleges cannot know exactly what a speaker will say until they speak. So, any ban on a speaker has to be based on speculation. If a speaker actually breaks the law by making direct violent threats, they can be punished, but one of the most fundamental free speech principles is a prohibition on prior restraint, such as banning speakers before they can speak.
Campuses Cannot Even Censor False Ideas
Author and New York University professor Ulrich Baer argues in “What Snowflakes Get Right,” “If the university allowed all conspiracy theorists to promote their crank theories, it would not be a university.” Baer notes correctly that in classrooms, “students are not free to discuss anything they want, and faculty are not free to teach falsehood and lies.” But the mistake Baer makes is the radical conclusion that “the same principle applies when universities decline to host speakers.”
No one thinks student newspapers should be carefully monitored to prohibit any non-academic work. No one thinks extracurricular events need to be limited to extensions of academically approved views, with all comedians, musicians, activists, and politicians prohibited for their lack of scholarly qualifications.
Universities should not fear the expression of false ideas. A university library should not purge every book deemed to be wrong by an authority figure. It’s possible to learn something, even from low-quality speech or lies. Every hateful idea is also an opportunity for counterspeech and the potential to learn something important. Instead, colleges must fear the repression of controversial views that silence debates essential to a free society.
A Strong Commitment to Free Speech Can Include Exceptions
By Mark Berkson – Professor, Hamline University
It is difficult for me to write a counterpoint to an opener with which I agree so strongly on so many points. I echo virtually all of what Mr. Wilson wrote, but I would like to offer one friendly amendment: His title should be changed to “Canceling Controversial Speakers is Almost Never Justified.”
I am hesitant to embrace absolutes such as “never,” even when it comes to principles I hold dearly. No right is absolute, and determining when to make exceptions requires both a legitimate process and exercising judgment. In the vast majority of cases, I support inviting speakers, even if they express controversial views that could upset or offend community members. As Mr. Wilson said, the remedy for that is more speech, not less. But, I recognize there might be some speakers who cross a line and thus should not be given a platform on campus.
Some Free Speech Limitations Are Constitutional
The history of First Amendment jurisprudence involves ongoing debates about exceptions, and there are numerous well-recognized, constitutional exceptions to free speech, like defamation and incitement. The existence of these exceptions does not diminish the importance of free speech. When discerning the limits of free speech, the burden of proof should always fall on those who want to limit speech.
A university campus must be a forum for the free exchange of ideas. But the marketplace of ideas, like financial markets, has rules that govern it. For instance, all participants must commit to respecting others’ rights, including free speech.
I agree with Ulrich Baer that the classroom serves as a useful model. Most faculty try to create a space where students can express and contest a wide range of ideas. But many of us begin the semester by setting ground rules for conversation. These are not content-based “speech codes” but rather mutually agreed-upon principles that make possible the kinds of conversations essential to a liberal education. Although students can passionately disagree with classmates, they must not demean others or use hate speech.
Controversial Speech Is Allowed, But Hate Is Not
Mr. Wilson argues that policies surrounding classroom conduct should not guide speaker events because “extracurricular events [should not] be limited to extensions of academically approved views.” My argument is not about content; even controversial, false, or “academically disapproved” views should be heard. It is about respecting the rights, dignity, and humanity of all members of the campus community. If hurling racial epithets at classmates is impermissible, then a university can reasonably refuse to invite speakers who regularly use hate speech to demean or threaten others.
A university is not obligated to host every person who wants to speak on campus, and it can set guidelines that apply to all possible speakers regardless of political views. The University does not have to support–with its use of facilities, advertising, technology, security, and money–hate groups whose raison d’être violates the university’s values and mission. (Ideally, speakers from hate groups need not be “disinvited” because they wouldn’t be invited in the first place.)
It is a strange position to be on the other side of free speech defenders with whom I agree on so much. Even though I diverge on a key point from Mr. Wilson, I am glad his “no exceptions” position is articulated and defended so well. Even in those rare cases where we differ, his arguments challenge me to justify any instance where speech is limited. This is where the burden of proof belongs. In the context of free speech on college campuses, I would probably agree with Wilson in almost every case. Almost.
Allowing Any Censorship Sets Dangerous Precedent
By John K. Wilson – Author and Former Fellow, University of California National Center for Free Speech and Civic Engagement
I appreciate Mr. Berkson’s thoughtful response to my statement on allowing all campus speakers. I have great respect for him and his willingness to criticize his administration at Hamline University by defending an art history instructor who was fired for Islamophobia because she showed a 14th-century Islamic painting depicting the Prophet Mohammad.
Mr. Berkson offers the conventional wisdom that rights are not absolute. However, free speech is limited not by a speaker’s views but rather when it falls into a tiny category of actions where exceptions are necessary—exceptions that are extremely rare, fairly enforced, and carefully defined, such as acts of discrimination, threats of violence, and criminal fraud.
Mr. Berkson correctly argues that we need to have “ground rules for conversation.” On a college campus, people set reasonable ground rules for the conversations they organize: professors set rules for their classes, student editors set rules for publications, student groups set the rules for their events, librarians set rules for the books they acquire, and the administration sets rules for speakers at its events, such as commencement. But no one gets to veto someone else’s conversations just because they don’t like what they might say.
Allowing Censorship Opens The Doors For Abuse
If a university president can ban speakers to protect students from bad ideas, wouldn’t that same principle extend to guest speakers invited by faculty, or the books assigned in a course? And if the banning power includes speech outside of classes, wouldn’t that give the president the authority to censor student newspapers, protests, or dorm room discussions where someone might express a demeaning idea? And if a speaker can be banned for the possibility of demeaning speech, couldn’t colleges expel students and fire professors who agree with that speaker?
Once we accept the idea that some central authority gets to veto speakers deemed hateful, what will stop trustees or politicians from deciding that they have the ultimate power to ban speakers that offend them?
Mr. Berkson argues, “If hurling racial epithets at classmates is impermissible, then a university can reasonably refuse to invite speakers who regularly use hate speech to demean or threaten others.” But universities punish actions, not hypotheticals. It’s notable how Mr. Berkson shifts from one extreme set of facts (“hurling racial epithets at classmates”) to a very different circumstance (“use hate speech to demean”). In one case, students in a class attempting to fulfill their course requirements face horrible, directed insults that interfere with their efforts to obtain an education. In the other case, students who voluntarily attend an extracurricular event must be protected from the possibility that a speaker might say something demeaning.
It’s easy to warn students about a hateful speaker. But any campus library has thousands of books with racial epithets and hate speech that a student could stumble upon without warning. Are we going to ban all those books along with the hateful speakers? Where does the parade of censorship end once you start beating the drum to ban hateful speech?
We Can Protect Free Speech Without Tolerating Denial of Humanity
By Mark Berkson – Professor, Hamline University
In his rebuttal, Mr. Wilson sets up an Either/Or: Either we let any guest (even from hate groups) speak on campus or we give a university president the power to ban speakers, leading to a slippery slope of censoring faculty speech and dorm room discussions. He warns that “once we accept the idea that some central authority gets to veto speakers,” the door opens to all kinds of censorship.
Let’s not allow a central authority to veto speakers, something I never proposed. And let’s avoid slippery slope arguments, which are easy to make but leave no room for judgment and make reasonable exceptions impossible. We reject absolute free speech because we recognize the damage some forms of speech (e.g., threats, defamation) can do and because there is a legitimate legal process for adjudicating the difficult cases.
Universities need three things to navigate the issue of cancelling controversial speakers: principles, process, and pedagogy. As for principles, the university must articulate the importance of free speech to its mission of pursuing truth, along with ground rules of civility and respect for others’ rights. A fair process decided upon by the community can determine when to make exceptions to free speech. This power must not be given to the president but rather through a process involving elected representatives from all constituencies, including faculty and students. Presidents should welcome this process, as it takes the burden of decisions off them.
Regarding pedagogy, we must teach our students to value free speech and how to handle challenges to their most dearly held beliefs. During the Hamline controversy, I argued that students with deep religious convictions must not try to silence forms of expression they find offensive or blasphemous. But we must also teach students that every member of our community is worthy of respect, and they should not have to tolerate bigotry and hate speech. For instance, if some students invited a blatant, outspoken Islamaphobe who uses anti-Muslim slurs and wants to deprive Muslim Americans of citizenship, I would fight to deny that person a platform on campus.
When Free Speech Exceptions Are Justified
Mr. Wilson raises the question of whether we can punish “hypotheticals.” I believe that a university community can decide that a potential speaker’s established record of hate speech is so extreme that the speaker does not warrant the privilege of a podium and university sponsorship. Hate groups’ messages are incompatible with the mission of the university and the values of an academic community.
Of course, commitment to free speech requires us to acknowledge that even purveyors of bigotry and hate, like Nazis and the Ku Klux Klan, have a right to publicly express their views. However, there are well-established time, place, and manner restrictions. The university does not have to provide a platform to someone who denies the humanity of its community members.
We must help our students cultivate the wisdom to balance the commitment to free speech with respect for the dignity of our community members. Intense debate and conflicting views can coexist with civility and mutual respect. This is the foundation of not only the classroom but also the university community itself. If we expect our students and faculty to honor these principles, we can expect it from our invited speakers.
We must teach students what they must learn to tolerate (challenging, even offensive, arguments) and what they should not tolerate (slurs, discrimination, denial of humanity). This goes for the classroom and the auditorium.
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John K. Wilson
John K. Wilson is the author of eight books, including "The Myth of Political Correctness: The Conservative Attack on Higher Education," "Patriotic Correctness: Academic Freedom and Its Enemies," and the forthcoming book, "The Attack on Academia." He was a 2019–20 fellow with the University of California National Center for Free Speech and Civic Engagement, and he has a Ph.D. in higher education from Illinois State University
Mark Berkson
Mark Berkson is a professor and chair in the Department of Religion at Hamline University. He teaches courses in East and South Asian religions, Islam, and comparative religion. Mark received his PhD from Stanford University in Religious Studies, his MA from Stanford University in East Asian Studies, and his BA from Princeton University. Mark’s scholarly work has addressed topics such as Confucian and Daoist thought, death and dying, religion and non-human animals, and interfaith dialogue. His work has been published in numerous books and journals. He has released two lecture series with the Great Courses: "Cultural Literacy for Religion" and "Death, Dying and the Afterlife.” Mark received the Courageous Colleague Award from the Foundation for Individual Rights and Expression in 2023.