Academic journal article The William and Mary Bill of Rights Journal

Protecting the Silence of Speech: Academic Safe Spaces, the Free Speech Critique, and the Solution of Free Association

Academic journal article The William and Mary Bill of Rights Journal

Protecting the Silence of Speech: Academic Safe Spaces, the Free Speech Critique, and the Solution of Free Association

Article excerpt

INTRODUCTION

Safe Space policies in higher education have captured the attention of modern commentators.1 Critics of academic Safe Spaces argue that such policies limit the free expression of ideas and negatively impact students' abilities to learn.2 Proponents of Safe Spaces, however, argue that these policies restrict harmful speech, effectively protecting the interests of minority students.3 At issue in this national debate is the impact of speech; essentially, commentators have created a normative dichotomy around the ideals of free speech and expression. Proponents, on the one hand, believe that limiting harmful speech promotes inclusion and, therefore, academic success for minority students.4 Critics, on the other hand, view the limitation of speech as an affront to the free expression of ideas, therefore harming education.5 Yet, despite their differing conclusions, both sides of this debate generally agree that the issues of Safe Space policies implicate students' speech and expression interests.6

It is unsurprising that the Safe Space debate has been characterized in the verbiage of free speech. After all, the United States has a robust social and legal culture embracing free expression in the marketplace of ideas.7 Moreover, the political and philosophical foundations of any democratic society necessitate the free and open dialogue of the citizenry.8 Further, as many commentators note, free speech and expression are particularly implicated in higher education because of the supposed academic value of open dialogue; and, even proponents of Safe Spaces concede that the university system is principally based on the free exchange of ideas between students, faculty, and staff.9

Limiting the Safe Space debate to a discussion of free speech, however, is detrimental to the very right the debate implicates. Consider the effect on free speech if the proponents of Safe Space policies prevail. To prevail, proponents of Safe Spaces must show-either normatively or constitutionally-that the right to be free from harmful speech is greater than the rights of the speaker.10 If successful, proponents of Safe Spaces will effectively dilute expression and speech on college campuses. Alternatively, if the critics ofSafe Spaces prevail, then the interests of minorities-that is, their interest in being free from potentially harmful speech-must give in to the majoritarian interests of speaking.11

By focusing their rhetoric on speech and expression, each side of the debate risks diluting free expression; or, in the alternative, subjecting minority students to potentially harmful speech. Additionally, using speech as the cornerstone of the Safe Space debate risks damaging the free speech doctrine, as well as endangers the wellestablished normative qualities of free expression in higher education.12

To avoid the risks detailed above, I argue that the interests protected by Safe Spaces can be adequately protected by existing intimate and expressive association doctrine.13 And that, by shifting the conversation from restricting speech based on the state's interest of inclusion and minority rights, to the private associational interests of groups, both free speech and free association doctrines are bolstered.14

Viewing the Safe Space debate as a dichotomy between free association and free speech has several positive effects. First, it spares the doctrine of free speech from unnecessary attack and criticism from those that favor Safe Spaces.15 Second, the interests of those in the Safe Space are better accounted for through their free, intimate and expressive associational interests,16 since their ability to associate with certain persons, thoughts, and ideas is protected under the umbrella of free association.17

While Safe Space policies take several forms,18 the Organizational Safe Space model19 provides the best conduit to frame this debate in the proper associationalspeech dichotomy.20 Therefore, I suggest that universities should adopt the Organizational Safe Space model,21 and that the debate concerning such Safe Spaces should transition from one about restricting free speech, to one concerned about the associational rights of the Safe Space members. …

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