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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It also protects freedom of assembly and protest and freedom to exercise your religion
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
“Using the word n****r in class is not punishable…”
How is that word made any better by replacing four of its letters with asterisks? What harm would it do to print the whole word without asterisks when we all know what the word is?