Academic journal article Harvard Journal of Law & Public Policy

Free Expression on Campus: Mitigating the Costs of Contentious Speakers

Academic journal article Harvard Journal of Law & Public Policy

Free Expression on Campus: Mitigating the Costs of Contentious Speakers

Article excerpt

"If you're afraid to offend, you can't be honest."

"If you offend me, I can't hear what you're trying to tell me."

--overheard on campus

The debate over how colleges and universities should respond to contentious guest speakers on campus is not a new one. A quick look back to the early 1990s, among other times, shows commentators squaring off much as they do today about the tensions between protecting free expression and ensuring meaningful equality. (1)

Perhaps not surprisingly, the issues that contested speakers address are also much the same as they have been for several decades--government action and inaction on various issues, the rights and social status of identity-based groups, and conflicts within political territories and regimes, among others. And, I would predict, questions about how institutional leaders should respond to these speakers will still be quite pressing twenty or thirty years from now.

My aim in this brief essay is not to rehash the familiar debates but rather to consider whether and how schools ought to mitigate harms that may occur as a result of these speakers presenting their views on campus. That is, I start from the premise that, for both non-consequentialist and pragmatic reasons, colleges and universities should allow invited speakers to give their remarks on campus and should undertake serious efforts to minimize and prevent disruption. (2) I also begin with the premise that some of these talks may come with real costs for individuals and groups within the community, for the school community as a whole, and for those who encounter these speakers and their views in non-campus settings. (3)

My point is that it is both unhelpful and inaccurate to characterize these premises as being in zero-sum tension--as though free expression must supersede any concerns about harm and that harms, if any, can be remedied only by more speech. Instead I argue that institutions can and should recognize the costs that can accompany unfettered speech by guest speakers and take steps to recognize and mitigate those costs.

I begin by discussing the reasons underlying the premise that schools must allow invited speakers to give their talks. I then review the legal and policy landscape that reinforces the need for schools to take steps to address the costs that may arise from this commitment. With these points in hand, I turn to the central inquiry here and offer a tentative pairing of costs and potential mitigation strategies.

I. A STARTING PREMISE: THE SPEAKER MUST GO ON

My inclination has not always been to embrace an "allow all invited speakers to speak" rule. To the contrary, perhaps because my work has focused on barriers to equality, (4) I have frequently been moved by concerns about the costs to individuals and groups who might be negatively affected by the speaker's remarks. Yet I have come to embrace the rule as the much better alternative to a rule that would allow speakers to be barred from college and university campuses based on the reputation or role of speaker (5) or the content of their planned remarks. (6) Although the arguments for each position are familiar, a quick review of some of the central justifications for a content-neutral rule may be helpful background for the discussion below. (7)

First, as a normative matter, higher education institutions are the quintessential site for contestation of ideas. One might argue that safeguarding this space, where views can not only be expressed but also challenged, takes on special importance at a time when surrounding communities are polarized and many people are increasingly reluctant to engage with views contrary to their own. (8) Even apart from times of political polarization, debates about society's received wisdom have played an important role in moving ideas from the periphery to the mainstream and in transforming the ways we understand ourselves and our surroundings. …

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