Academic journal article Texas Review of Law & Politics

Protecting Diverse Thought in the Free Marketplace of Ideas: Conservatism and Free Speech in Higher Education

Academic journal article Texas Review of Law & Politics

Protecting Diverse Thought in the Free Marketplace of Ideas: Conservatism and Free Speech in Higher Education

Article excerpt

I. FREEDOM OF EXPRESSION IS UNDER ATTACK

Colleges and universities are supposed to represent the pinnacle of thought, inquiry, discovery, and innovation in a free society. It is only through the consideration of all perspectives that we can increase our chances of finding objective truths based upon reason, logic, and tempered emotion. In contrast, the exclusion of ideologies or perspectives that some may find to be unpleasant or uncomfortable undermines what is arguably the primary purpose of higher education. The supreme Court has repeatedly described the overall purpose of the university as a duty to "maintain[] a free and robust marketplace of ideas."1 The concept of the marketplace of ideas was used to justify the decision in Healy v. James, where the Court ruled that a decision not to recognize the students for a Democratic society as a campus organization was based upon a fear of disruption and therefore violated their First Amendment rights.2 The marketplace of ideas was described by the Court in the wake of the loyalty oaths that were used during the Age of McCarthyism to ferret out subversives when Chief Justice Warren wrote: "Teachers and students must always remain free to inquire, to study and to evaluate . . . otherwise our civilization will stagnate and die."3

As a result of a rising tide of political orthodoxy, the free marketplace of ideas is becoming more of an echo chamber, and the free-speech rights of conservatives are under attack. According to the Foundation for Individual Rights in Education (FIRE), freedom of expression is in "greater risk now than any time in recent history."4 Conservative speakers are being excluded under threats of violence and rioting.5 Conservative students are being harassed and intimidated for expressing ideas that contradict progressive orthodoxy.6 Conservative professors are routinely excluded from consideration for job opportunities, grants, and publications.7

In January of 2017, we witnessed the antithesis of freedom of expression on college campuses when riots erupted before the start of a speech scheduled to be delivered by Milo Yiannopoulos at the University of California, Berkeley. In response to requests to cancel Yiannopoulos's appearance, a message sent out by the Chancellor of the University of California, Berkeley endorsed ideals of free speech while tacitly supporting the views of a violent movement designed to limit the free marketplace of ideas.8 The mayhem that ensued may have been the intended outcome, as evidenced by the fact that the police on that night made just one arrest at the protest.9 In fact, several reports insinuate that the Berkeley Police received direct orders to stand down.10

In the message referenced above, the Chancellor of UC Berkeley, Nicholas Dirks, made the following statement:

In our view, Mr. Yiannopoulos is a troll and provocateur who uses odious behavior in part to "entertain," but also to deflect any serious engagement with ideas. He has been widely and rightly condemned for engaging in hate speech directed at a wide range of groups and individuals, as well as for disparaging and ridiculing individual audience members, particularly members of the LGBTQ community.11

How exactly is this message designed to promote a climate of tolerance for divergent viewpoints? Does Chancellor Dirks know that hate speech still deserves First Amendment protection? Does Chancellor Dirks know that Mr. Yiannopoulos is gay?

On the UC Berkeley Division of Equity and Inclusion webpage, the school makes the following declarations: "We are committed to ensuring freedom of expression and dialogue that elicits the full spectrum of views held by our varied communities," and "[w]e respect the differences as well as the commonalities that bring us together and call for civility and respect in our personal interactions."12 The Chancellor's message appears to fall short of these ideals, as does the behavior of many on and around the Berkeley campus. …

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