In a lengthy paper published this month, described as “very preliminary and provisional”, Cass R. Sunstein of the Harvard Law School tries to elucidate the extent to which the American Constitution guarantees free speech on university campuses. Of course, the issues raised in the paper are relevant beyond the United States. The paper is titled: ‘Free Speech On Campus? Thirty-Seven Questions (and Almost As Many Answers)’ and published on SSRN (Social Science Research Network).
In the abstract, Sunstein concludes that to comply with the First Amendment universities “must permit a great deal of speech that is offensive, hateful and even horrifying.” The paper, while theoretical, used contemporary examples but being theoretical it does not say what has actually happened to people who have expressed offensive, hateful or horrifying speech. My conclusion, however, given the situation of some university staff and students in the United Kingdom who have expressed seemingly innocuous, let alone offensive, ideas on our campuses is that the First Amendment does offer United States citizens greater protection.
Sunstein’s premise is that the First Amendment was not designed for university campuses and therefore that its “doctrines are ill-adapted to the academic setting”. Also, what he has to say applies — as does the First Amendment — to public institutions and, thereby, only to public universities. As such, public universities like any public institutions may under the First Amendment “punish speech that is ‘directed to inciting or producing imminent lawless action and is likely to incite or produce such action’.” He also indicates that, for example, there is no constitutional right to plagiarise and, therefore, universities may punish that.
Permitted restrictions on speech fall under three categories. Viewpoint-based restrictions may permit praise of a person on campus but not criticism; content-based restrictions may apply to an ongoing situation regardless of the view being expressed; and content-neutral restrictions may apply to discussion of certain topics under particular circumstances. However, universities do have some unique powers over other public institutions in that they may regulate speech which is “essential to their educational mission”. Thus, a scholar of English teaching about climate change or a student choosing to provide an essay on a topic not related to the assignment that has been set may be punished.
Following a discourse on how American law has been generally applied such as due and fair processes and areas where the relevant laws are less tested and developed, Sunstein makes a start to his 37 questions. These are divided into two sections: 18 questions on students and the remainder, which include questions for institutions, on teachers. Since there is some overlap between questions, and some situations clearly fall on one or other side of the law, I summarise the main points.
Pro-Palestinian students protesting about the current war in Gaza in which their own Government is involved or showing a film comparing the Israeli action in Gaza to genocide may not be punished. Even students shouting for “Itafada” would probably not be punished unless their actions were considered to be leading to a lawless situation. Sunstein makes clear that under the First Amendment “what matters is what the speakers intend, not what the audience hears”. But if direct threats were issued to a particular group on campus, for example Jewish students, by the students — in other words they issue a ‘true threat’ — they may be punished.
Encouragingly, if students protest a speaker they do not like and shout the speaker down, however distasteful the content of that speaker’s address, they may be punished. Likewise, disrupting or threatening to disrupt the work of the university through protest against its policies on or silence against current issues which they find distasteful could lead to students being punished.
Of particular interest, and relevant to a similar case in the United Kingdom, students protesting against same-sex marriage may not be punished regardless of the law of the land or its constitution. For precisely the same issue, a university social work student in England — Felix Ngole — did not fare so well even in a so-called ‘safe space’. Felix was expelled from his course, although he later won his case against the University of Sheffield. In a similar vein, a group of Christian students distributing Christian literature, even if it says that non-Christian students are not welcome, would not be punished. Non-Christian targets of their leaflets who expressed “feeling unsafe” would not have enough of a case for the university to stop them. The same would apply to students holding a ‘White Pride’ week. But in the case of a ‘White Supremacy’ week there may be a case for punishment.
Turning to teachers, the case of a lecturer using a class on one subject to push his own political views is punishable. Likewise, if he continually berates them for stupidity. But publishing something online about a university policy on romantic relationships between staff and students, saying that existing rules are too strict would not lead to punishment. And that would be the case, even if students complained of feeling “unsafe” in his class. However, harassing a student with the aim of developing a relationship is punishable.
Using the word n****r in class is not punishable, if used in context, nor is wearing ‘blackface’, for example, at a Halloween party. If racial epithets about Black people, Hispanics or Jews are used as insults then these are punishable.
Writing per se that climate change is not real or that capitalism is to blame for all the problems in the world is, generally, protected by the First Amendment. But a university may punish if the work does not reach the required “professional standards”. It is easy to see how these situations could lead to protracted procedures.
Removing books considered to be not in keeping with, for example, a Christian ethos or offensive in some way would most likely not be protected by the Constitution, but closing a department due to falling student numbers would be protected. Administering the coup de grâce to a Gender Studies department, however desirable an option, on the basis that an incoming university President did not like the subject enters a grey area under the First Amendment but could be defended on the basis that a university is not obliged to offer any particular courses. Consider the example of a Nazi Studies department. Universities are also not obliged to hire anyone adhering — or not adhering — to any particular political or academic ideas.
The final question makes clear that an academic writing a piece of work which comes to some demonstrably wrong conclusions and causes colleague and student outrage is protected by the First Amendment. Sunstein’s paper ends on this point and, whether it was deliberate, does serve to illustrate that anger at views which do not accord with one’s own or the prevailing consensus — essentially the basis of nearly all free speech cases arising in the United Kingdom — or being offended, hurt or feeling unsafe as a result of someone’s expressed views are simply not grounds for censure under the precepts of the First Amendment in the United States.
We may not need the equivalent of a First Amendment in the United Kingdom. But our universities, which seem to specialise in cultivating snowflakes, could make a start by making the above principles clear in Freshers’ Week.
Dr. Roger Watson is Academic Dean of Nursing at Southwest Medical University, China. He has a PhD in biochemistry. He writes in a personal capacity.
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There seems to be a trend going on and it starts to make the situation a decade ago look like the outlier.
In the article, it says, “…but the Greenland ice sheet may have made a net gain in size in the year to August 2022.”, but in the source quoted, the opening paragraph states,
“The end of the northern-hemisphere summer brings to a close the Greenland ice sheet melt season and with it confirmation that 2022 was the 26th year in a row where Greenland lost ice overall.”
Surely net and overall mean the same thing?
Can someone please tell me what I failed to see…
Greenland gains mass every year. The melt season is just over 2 months long, while the ‘mass gain’ season is 10 months long. The graph from the DMI always ends higher than at the start and then the graph starts again each year. So there is a constant flow of ice off Greenland because there is a near constant dumping of snow. In 1942 a P38 Lightning crash landed on the Greenland Ice sheet and in 1992 she was brought to the surface having been buried under 268 feet of ice. Incidentally, research into the age of the ice cannot find much ice dating from before the last inter glacial, the Eemian, which was 120,000 years ago and hotter than the Holocene.
In addition. The assertion that Greenland is losing mass has been derived from models – need I say (write) more?
Thanks for replying; but I still don’t understand why the above article says the opposite to the article quoted.
When you say that “the assertion that Greenland …derived from models“, do you mean that they use models when talking about the last 26 years?
It says “the Greenland ice sheet lost 84Gt of ice over the 12 months from September 2021 to August 2022.” Surely the 84Gt figure is not derived from a model.
I’m not an espert, and only recently became a sceptic: I’m just trying to understand.
I don’t know how they come to that conclusion because according to polarportal.dk Greenland gained 600 Gt from Sept 21 and up to June, and then lost 150 Gt between June and Sept 2022 – Overall a gain of 450 Gt.
Please see Tony Heller on Youtube such as the following “Extreme Melt In Greenland” – “Scientists Cherry Picking In Greenland”
Thanks for taking the time to reply
SILENCE———There is a “Climate Emergency” and that is all there is to it. The BBC says so. The Daily Climate Show on SKY NEWS says so and that should be good enough for everyone so go and enjoy your Netflix and Coronation Street because there is a “Climate Crisis” and everything you do needs to stop to avert it. Soon you won’t have any notes in your wallet, and your spending will be monitored to make sure you have not exceeded your carbon footprint limits. ——Wakey Wakey people. You are being played. ————–“Climate Emergency” is political speak masquerading as science.
It’s children that are the most vocal about the ‘Climate Emergency’ and ‘Climate Crimes’.
“I’m not young enough to know everything” – J. M Barrie
“Every fourth euro spent within the EU budget will go towards action to mitigate climate change… I am glad to see that young people are taking to the streets in Europe to raise visibility of the issue of climate change.” – Jean-Claude Juncker
And children who are most susceptible to propaganda.
Yes, and the tyrants know this:
“And to anyone who still disagrees with me, I say that you no longer matter. We are now educating your children.” – A. H.
Ooh, Germany’s reopening an opencast coalmine (Nigel Farage, GB News).
Taking the Chinese and the Ukrainian route are they? Meanwhile, the United Kingdom of Great Britain and Northern Ireland bans fracking. Hmm…
Germany has a choice: start behaving sensibly or watch their manufacturing sector disappear.
They’ve chosen sense.
Much as its good news to hear that the planet does actually know best, the so called climate emergency is just a ruse to sweep away our society and replace it with communism. If the ice sheets were 50 metres thicker, it wouldn’t matter one jot…
The Vikings gave Greenland it’s name for a good reason; it was Green, and warm enough to grow crops. Climate crisis is a globalist scam.
Many thanks Chris. Keep it up.
No, no this cannot be true. St David of Attenborough hasn’t made mention of this!!
Another great article, Chris. If only we could get you on the MSM to show the masses they’re being duped.
If you’ve got about 38 billion pounds…