Does/Should The 1st Amendment Protect Speech On College Campuses?Posted: December 31, 2017
Two of the country’s leading First Amendment scholars give diametrically opposite answers to this topical and pressing question. Robert Post, former Dean of Yale Law School, answers the question “no” in an enlightening post on Vox, entitled “There is no 1st Amendment right to speak on a college campus.” Erwin Chemerinsky, Dean of the University of California, Berkeley School of Law, answers the question “yes” in a responsive post on Vox, titled “Hate speech is protected free speech, even on college campuses.”
Money quote from Chemerinsky’s article:
[T]he law of the First Amendment and the principles of academic freedom are clear and long established. The Supreme Court repeatedly has said that the First Amendment means public institutions cannot punish speech, or exclude speakers, on the grounds that it is hateful or deeply offensive. This includes public colleges and universities.
And from Post’s article:
To the extent that the educational mission of higher education includes the inculcation of critical thinking, it requires universities to instill in students the capacity to face and evaluate ideas, however threatening or dangerous they may seem. Universities must thus distinguish between offensive ideas and personal incivility. Although the First Amendment makes no such distinction, it is important for any university that seeks to encourage both rational dialogue and the mastery of ideas, however strange and off-putting.
These are essential skills for democratic citizens, yet to teach them, universities must be free to regulate speech in ways that are inconsistent with First Amendment rights, at least as ordinarily interpreted. If a campus speaker hurls personal insults at students — if he outs them or individually intimidates them — he has no business on campus.