Academic journal article The William and Mary Bill of Rights Journal

Broken Platforms, Broken Communities? Free Specch on Campus

Academic journal article The William and Mary Bill of Rights Journal

Broken Platforms, Broken Communities? Free Specch on Campus

Article excerpt

I. The Interrelated Histories of Free Expression and Democracy ... 953

A. Republican Democracy: Limited Protection for Expression.953

B. Pluralist Democracy: Expansive First Amendment Protection.959

II. Free Expression on Campus.964

A. Free Speech Criticisms of the Protesters.966

B. The Counterargument: From Democracy and Free Expression.968

III. History Redux: The Politics of Free Speech.974

A. Winners and Losers.975

B. Beyond Constitutional Principle.982

Conclusion.987

Free speech on college and university campuses has generated controversies for decades.1 In recent years, though, several such controversies have attracted widespread and sustained media attention. In one instance, progressive students attempted to prevent conservative theorist Charles Murray, notorious for ostensibly linking intelligence to race,2 from speaking at Middlebury College.3 In a similar incident, progressive students at the University of California, Berkeley, interfered with a speech by former Breitbart editor and right-wing provocateur Milo Yiannopoulos.4 In response to these roiling disputes, publishers have rushed into print multiple new books focused on campus free speech issues.5

The public has paid heed to these issues partly because of the polarizing politics that animate the disputes.6 On the one side, conservatives emphasize liberty: rightwing speakers have a First Amendment freedom to speak.7 From this perspective, progressive protesters contravene fundamental norms of free expression. On the other side, progressives argue that campuses need to promote equality and inclusiveness.8 Speakers such as Murray and Yiannopoulos purposefully denigrate racial and sexual minorities and transform campuses into hostile environments.9 Unsurprisingly, many constitutional scholars have adopted positions consistent with their general political orientations.10 Even so, the apparent tension between the constitutional values of free speech and equality has prompted some liberal scholars to support the conservative speakers as a matter of First Amendment principle.11 Other scholars insist that the tension between free speech and equality can be resolved without choosing between the two.12

Despite the proliferation of scholarship focused on campus free speech issues, nobody has recognized that the interrelated histories of free expression and democracy can shed considerable light on these matters.13 To be sure, some scholars have sought guidance from either the history of free expression or the contours of democracy, but they have not put the two together.14 This Article takes on that challenge. Specifically, this Article explores the ramifications of the historical interrelationship between free expression and democracy for campus no-platforming disputes, where student protesters try to prevent controversial right-wing speakers like Murray and Yiannopoulos from using campus facilities.

One cannot understand free expression in America without accounting for a twentieth-century transition from a republican to pluralist democracy. Roughly, republican democracy emphasized the virtuous pursuit of the common good, while pluralist democracy emphasized (and emphasizes) processes allowing widespread political participation.15 Judicial protection of free expression under republican democracy was limited,16 but free expression became a constitutional lodestar under pluralist democracy.17 While theorists of pluralist democracy often emphasize its crucial processes, such as voting,18 pluralist democracy necessarily includes substantive components as well.19 Most important, one cannot conceptualize pluralist democracy without accounting for the political community: who belongs and participates? My argument is that, today, to protect the operation of pluralist democracy itself, we must take at least one issue off the table, so to speak. Namely, all individuals, regardless of subculture or societal grouping, must be treated as full and equal citizens in good standing. …

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