It’s Not a Zero-Sum Game
Ways to promote both freedom of expression and inclusion
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In recent years, campus expression challenges have garnered the attention of media pundits, state legislators, and advocacy groups and have too often been reduced to click-bait headlines and hyperbolic tweets that invite and escalate conflict on campus. Yet the issue of free expression on campus is more complex than that.
A breadth of ideas and views, including contentious ones, are part of life on campus, and administrators and faculty must develop strategies for building the community’s capacity to effectively navigate speech controversies. All campus stakeholders would benefit from renewed focus on and continuing education and conversation about the value of robust expression in higher education alongside other institutional values, notably inclusion; legal protections for expression; and ways to facilitate and engage in difficult conversations. We hope these tips for doing so will be helpful.
Know and Teach Your Institutional Values
Campus community members should understand and be able to articulate why freedom of expression is essential to the mission of higher education and of their institution in particular. Freedom of expression, including the expression of unpopular ideas, underpins the inquiry and exploration that enable colleges and universities to fulfill their mission to generate and transmit knowledge and to develop their students as critical thinkers. The University of California (UC) in establishing the National Center for Free Speech and Civic Engagement (UC Center) in 2017 further emphasized its mission to “serve as a training ground for an educated, engaged citizenry—for leaders who will uphold our intrinsic democratic ideals while also helping us navigate a changing social and political landscape.”
Stakeholders should also understand their institution’s other core values—in particular, diversity, equity, and inclusion—and how they may interact with free expression. UC’s policy on diversity notes that diversity is integral to UC’s mission to serve the interests of the state, provide access to all groups, and achieve excellence academically by “broaden[ing] and deepen[ing] both the educational experience and the scholarly environment” and that “the pluralistic university can model a process of proposing and testing ideas through respectful, civil communication.”
When free speech controversies arise on campus, media often pit the values of inclusion and free expression against each other. This zero-sum framework is limiting, and campus leaders should think about how these values can work together to enrich the campus environment. Reaching this goal requires a commitment to continuously highlight and examine efforts to practice and teach all members of the campus community skills of engaging in challenging but productive dialogue. It also requires connecting discussion of expression rights with conversations about using those rights thoughtfully in a campus setting.
Invest in Teaching Dialogue across Difference
Just as we teach students how to write an essay, speak another language, or use the periodic table, we must teach students, staff, faculty, and administrators how to talk with and learn from one another when we disagree. Like strengthening any skill, engaging in meaningful discourse takes practice and requires dedicated resources, and this type of skill building should be incorporated into curricula rather than relegated to extracurricular clubs and service learning.
Find Resources for Syllabi, Curriculum, Methodology, and more at:
UC Center for Free Speech and Civic Engagement
Institute for Democracy and Higher Education
Understand, Teach, and Model Basic First Amendment
A 2020 Freedom Forum survey found that 18 percent of participants were unable to name even one of the five freedoms guaranteed in the First Amendment (speech, religion, press, assembly, and petition). Similarly, many people do not understand that the First Amendment protects individuals’ speech from censorship or retaliation by only the government (a category that includes public colleges and universities) and not by private companies like Facebook or Twitter. While private colleges and universities are not required to follow First Amendment jurisprudence, most abide by First Amendment norms to fulfill their missions.
Too often, institutions of higher education take a one-and-done approach to educating stakeholders about the First Amendment, maybe mentioning these principles only during first-year orientation. Understanding and inculcating these values require consistent educational efforts. Through research and programming, the UC Center explores the intersection of expression and democratic learning and considers what can be done to restore trust in the value of free speech on campuses and within society at large. To that end, the center compiled resources from a range of institutions—including lesson plans and modules—on free expression and the First Amendment.
Key legal concepts that may arise as your institution teaches and models these principles include:
→ It’s true: the First Amendment does generally protect hateful speech from prohibition.
Protecting speech we enjoy and agree with comes naturally; protecting speech we abhor and believe is damaging to the campus climate is where it gets hard. The Constitution prohibits government from censoring speech based on its viewpoint (and in some spaces, based on its content). This includes, for the most part, offensive, demeaning, and disparaging speech. In fact, the term “hate speech” has no legal definition. “Offensiveness” is a subjective inquiry. Think about humor: What one person considers funny, another might find rude and insulting. Do we want the government determining which topics or perspectives are offensive and, therefore, not permitted? Wouldn’t that determination change depending upon who is in power?
When a public college or university establishes rules and corresponding sanctions, people need to be aware of what triggers the consequences. Without that clarity, a court would likely invalidate the law for being unconstitutionally vague and overbroad. Take, for example, what happened when the University of Michigan created hate speech codes in the late 1980s in response to anti-Black expression, such as flyering, on campus. A court struck down these codes because, in light of how the university had been enforcing the policy, people would have had to guess at the meaning of language in the policy such as “stigmatizes” and “victimizes.” The plaintiff argued that this ambiguity would chill speech because students would stay silent rather than risk sanctions for commenting on a controversial issue.
The First Amendment does not protect certain categories of speech, but the courts have defined these narrowly. They include, for example, threats; however, a threat in this context is defined as a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals. Likewise, the First Amendment does not protect conduct rising to the level of harassment, but the First Amendment standard for harassment in the educational context is exacting. It requires that the conduct is at least “severe or pervasive,” is objectively and subjectively offensive, and has caused actual, material disruption of the educational experience. Other categories of unprotected speech, like fighting words or incitement, are likewise narrower in their legal meaning than in colloquial usage.
→ Public colleges and universities cannot regulate protected speech based on its viewpoint.
In spaces that a public institution has opened for expressive uses, such as the quad or student center, policies affecting individual expression must be viewpoint neutral. This means the institution may not regulate speech based on the perspective or ideology of the speech. “No protests in the quad in support of abolishing the death penalty” runs afoul of the First Amendment because the rule treats speech differently based on one’s point of view of capital punishment: if you support the death penalty, you can protest; if you don’t, you cannot. Many historical movements that challenged the status quo—including women’s suffrage and integration of schools—began with ideas government officials deemed dangerous to society. Without the First Amendment and protection of all speech, those social movements might never have progressed.
→ Some regulation of protected speech is permissible.
In spaces that are generally open for public expression, like a campus quad, one effective way to set limits needed to support an institution’s goals (such as controlling sound levels when classes meet) is to create time, place, and manner restrictions. Here’s an example: “Amplified sound is permitted in designated outdoor locations from 12:00 p.m. to 1:00 p.m. on Monday, Wednesday, and Friday.” This rule applies no matter the subject of the speech (for example, abortion) or the viewpoint (for or against). No matter who you are or what your message is, you can only use amplified sound (manner) in designated outdoor locations (place) from 12:00 p.m. to 1:00 p.m. on designated days of the week (time). Time, place, and manner restrictions must leave open ample alternative channels for communicating the speaker’s message. In this example, the speaker is still free to share the message at other times, just without amplified sound.
→ Campuses can choose which spaces to open for individual expression.
What if a student hangs a poster of a Nazi flag from her dorm room window? Students across the courtyard complain about the hateful iconography and ask that the flag be removed. What the institution can do depends in part on whether its policies allow students to post images or messages that face the outside. If so, it generally will need to allow all protected speech, regardless of viewpoint. Another option is to institute a policy—as many UC campuses have—that prohibits any
postings facing outward in residence halls. This policy would be an example of a time, place, and manner restriction. To meet the First Amendment’s requirements, institutions should enforce expression-related policies consistently and in a viewpoint-neutral way.
Use Your Voice: Respond to Harmful Speech
It’s important to acknowledge and address the damage hateful speech causes even if you can’t regulate it.
Protecting the right to hateful speech in order to protect all speech comes with a cost. Studies document that exposure to hateful speech can negatively impact individuals’ academic performance and self-esteem. In addition, members of marginalized groups are most often the targets of vile speech. Even if an institution cannot prohibit or regulate hateful speech, it can—and must—acknowledge and address the detrimental effects of offensive speech on individuals, groups, and the campus climate at large. Recognizing the negative impact of hateful speech on a campus community should go hand in hand with a thoughtful, deliberate plan of how and when to respond.
Administrative Responses to Offensive Speech
Colleges and universities have the right to express their own views, including to respond to ugly speech that unsettles the community and undermines vital institutional values like inclusion and equity. While no formula exists for an effective and meaningful counter message—or for deciding when it’s required and from whom—here are some points to keep in mind:
→ Do not simply invoke the First Amendment. Part of an institution-wide statement will likely emphasize how valuable the First Amendment is and why it may preclude punishing the individual(s) who spoke. Some institutions end their statements there, leaving the community with the impression that the institution can do nothing. The First Amendment may stop administrators from sanctioning or censoring speech, but it does not preclude them from labeling the speech as wrong or from taking and explaining measures, other than punishment, to address the harm that the speech may have caused.
→ Be specific. General statements about how hate is harmful will fall flat. Biased speech targeted at a particular group instills fear and exclusion. Effective counter speech names the hate (anti-Black, antisemitic, or anti-trans, for example), speaks directly to the targeted group, and emphasizes how the hateful language does not comport with the institution’s values.
→ Focus on safety and inclusion. Let members of the targeted group know they are safe and a critical part of the campus community. University and college leaders should emphasize inclusion, what the campus is doing to ensure that members of the targeted community are safe, and how students and others can access counseling and other resources.
→ Prepare. Don’t wait until the next expression of hate comes to your campus—start preparing now. Ideally, a diverse group of staff, students, and administrators will regularly meet to discuss inclusion challenges and efforts, free speech policies, ways to build dialogue across conflicting groups, and preparation for protests and other events.
Faculty Responses to Offensive Classroom Speech
Inside the classroom, principles of academic freedom—which are discrete from First Amendment rights—also apply. UC’s policy on academic freedom states that “the principles of academic freedom protect freedom of inquiry and research, freedom of teaching, and freedom of expression and publication. These freedoms enable the university to advance knowledge and to transmit it effectively to its students and to the public.” Unlike freedom of speech, academic freedom focuses on disciplinary expertise. Because of this focus on professional knowledge, viewpoint neutrality in academic contexts is not required in the way it may be in other campus spaces and contexts.
Professors determine what to include (or not) on their syllabi and how to teach the material: a math professor does not have to accept an incorrect answer to an equation, and an astronomy professor can give a student a poor grade for arguing that the moon is made of green cheese. When it comes to offensive classroom speech that is germane to the topic, however, things become more complicated. Consider, for instance, a class on US immigration policy. If a student expresses a perspective that is demeaning to immigrant students in the class (for instance, that the United States would be better off with no immigrants), the First Amendment likely prevents the professor from stopping that speech.
The law, however, does not preclude the faculty member from creating—with students—community standards for classroom discussion. These guidelines can become the framework for accountable classroom conversation and provide a vehicle for faculty members to help classroom conversations stay productive and based on evidence.
Following a challenging exchange in class, faculty members may consider reaching out to students whom the speech may have adversely affected or to those who uttered the speech to discuss its impact.
Other Responses to Hateful Speech
All members of the campus community can utilize First Amendment rights to amplify their voices and messages, for example, through opinion pieces and letters to the editor in a campus or local paper. Protest is also an important means of expression in university life. However, colleges and universities should make it clear that shouting down a speaker in order to preclude others from hearing their message
is not protected by the First Amendment. Campus policies should distinguish between constitutionally protected protest and sanctionable disruption, as well as spell out the consequences of crossing that line.
With respect to conveying disagreement with a controversial speaker or event in particular, another potential response is to host counter programming at the same time but in another location. This allows members of the community who want to decry certain speech to come together and spread positive messages. Counter programming also draws media attention, which often fuels hateful campaigns, away from the provocative speakers. Some groups have even used visits by extremist speakers as an opportunity to raise money for causes they support (for instance, asking people to donate for every minute that the group stands outside the event).
For an example, see this policy from the University of California, Irvine
A Final Word
Between the pandemic, deep political polarization, and flagging faith in the value of higher education, today is a challenging time to be a teacher, administrator, or a university or college student. That is precisely why institutions of higher education need to double down on clearly articulating their values, investing in teaching them, and modeling how to live them. There will be times when norms chafe against one another, but that does not mean it is a zero-sum game. Being prepared to handle conflicts that may arise while elevating both expression and inclusion is essential if higher education is going to fulfill its promise.
Lead illustration by Paul Spella
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