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James Stoner
James Stoner

Is free speech in universities the same as free speech in the polity at large?  In earlier ages, it was generally assumed not: Society was bound by rules of propriety and in times of crisis was constrained by urgent necessity, but universities were places set apart, where all sorts of ideas could be debated, including ideas critical of social convention and oblivious to momentary danger.  Today the situation has flipped: Universities put limits on speech, some by rules and some by social pressure, while the courts protect as free expression everything from display of obscene images to disruption of funeral processions, not to mention protests that precipitate violence.

I will leave to others to explain how this reversal came about, but will discuss how to think about free speech in both venues.  We can best protect free speech if we consider the different ends or purposes of speech and how these apply in different settings.  The ends free speech advocates typically identify are three-fold: for the sake of the truth, for republican government, and for self-expression.  For clarity, let me link them with three leading defenders in the English-speaking tradition, respectively, John Milton, James Madison, and John Stuart Mill.

The defense of free speech, or more precisely, freedom of the press, in the name of the pursuit of truth received its classic expression in the pamphlet, Areopagitica, by John Milton.  Published in 1644, addressed to the parliament of England, the pamphlet complains of parliament’s renewal of the Licensing Act, under which works could be printed in England only upon approval of the authorities.  Writes Milton, “who kills a man kills a reasonable creature, God’s image, but he who destroys a good book kills reason itself, kills the image of God, as it were in the eye.”  Of course, no censor claims to suppress good books, only evil ones, but Milton argues this is impossible:

Good and evil we know in the field of this world grow up together almost inseparably; and the knowledge of good is so involved and interwoven with the knowledge of evil, and in so many cunning resemblances hardly to be discerned….  It was from out of the rind of an apple tasted, that the knowledge of good and evil, as two twins cleaving together, leaped forth into the world.  And perhaps this is the doom which Adam fell into of knowing good and evil, that is to say of knowing good by evil.

Moreover, Milton adds, censors are likely to be dull or bigoted; subjecting true writers to these is not only unjust but dispiriting, undermining their incentive to write and publish.  Besides, censorship is futile, for readers are more apt to interpret works according to their characters than to have their characters formed by the books they read.  And it is unnecessary: “though the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength.  Let her and falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?”

The defense of free speech for the sake of republican government receives a classic formulation in James Madison’s Report on the Virginia Resolutions, written as a review and defense of Virginia’s 1798 protest against Congress’ Alien and Sedition Acts.  Although the Report is best known for its account of the compact theory of the Constitution, Madison argues as well that the Sedition Act unconstitutional, interpreting “freedom of speech, and of the press” in the First Amendment to go beyond the principle of “no prior restraint,” established in English common law once the Licensing Act expired in the early 1700s.  Because American governments are republican, not monarchical, the English notion of free speech needs to be expanded in American circumstances:

The nature of governments elective, limited, and responsible, in all their branches, may well be supposed to require a greater freedom of animadversion, than might be tolerated by the genius of such a government as that of Great Britain. In the latter, it is a maxim, that the king — a hereditary, not a responsible magistrate — can do no wrong; and that the legislature, which, in two-thirds of its composition, is also hereditary, not responsible, can do what it pleases. In the United States, the executive magistrates are not held to be infallible, nor the legislatures to be omnipotent; and both, being elective, are both responsible. Is it not natural and necessary, under such different circumstances, that a different degree of freedom in the use of the press should be contemplated?

Already in colonial times Americans embraced truth as a defense in libel cases.  Madison goes a step further, noting that in electoral politics, “opinion, and inferences, and conjectural observations” are a necessary part of debate, even though they cannot always be established by the standards of proof in a court of law.

John Stuart Mill’s defense of “freedom of thought and discussion” in On Liberty echoes Milton in emphasizing the claim of truth, but the context of the argument distances it from Milton’s concern with public doctrine or Madison’s with electoral politics.  Mill’s chief concern, instead, is with individuality, defined as the freedom each person has to live his own life in his own way, without public pressure from law or opinion except for the sake of other individuals’ self-protection.  Writes Mill: “If a person possesses any tolerable amount of common sense and experience, his own mode of laying out his existence is the best, not because it is best in itself, but because it is his own.”  Mill’s defense of free speech is a defense of self-expression.  If Milton’s emphasis is on learning and Madison’s is on politics, Mill’s is on civil society and culture, or what today we might connote by economy and identity.

What are the limits implied in each of the three ends of free speech?  Insofar as freedom of speech is for the sake of discovering truth, one has no right to lie, that is, to deliberately present an untruth, knowing it is untrue, as though it were a truth.  The republican rationale for free speech commends constitutional government and its processes; those include rules of order in any legislative assembly, which limit who speaks when and on what subject, as well as even stricter rules of proceeding in court.  Limitations implicit in the principle of self-expression are potentially the most extensive.  Following Mill, speech that harms other individuals must be limited, and today the law prohibits true threats, fraudulent speech in commercial transactions, libel and slander, certain insults (what were called “fighting words”), and violations of privacy.  Most European countries now take an expansive view of limits, enforcing laws against “hate speech”; American law thus far has taken a narrower view of harm and so a broader view of what can be said with impunity, at least with legal impunity, it being possible to criticize the expression of hatred thanks to the protection of free speech itself.

How ought these principles, purposes, and limits to be recognized in the polity on the one hand and in the university on the other?  In society as a whole, insofar as it is self-governing, it makes sense to allow wide latitude to speech, at least concerning all issues that come before the voters.  Because all citizens in a democratic republic have the right to vote, they can rightly demand respect for their equal rights as citizens from one another, and there are degrees and kinds of insult that certainly ought to be discouraged.  Usually democracy itself insures respect, for it is often true that no majority is so entrenched and stable that politicians do not see that those they alienate today might be those whose votes they will need tomorrow.  The danger comes when majorities disfranchise those they outnumber, or when differences of opinion on questions of policy are interpreted as insults against someone else’s citizenship.  A self-governing people might limit the issues that are open to electoral choice—to an extent Americans have done so by entrenching rights, such as the freedom of speech, in the Constitution and allowing recourse to courts for their protection—but the wider the array of rights thus entrenched, the less the people can be called self-governing.  Moreover, because the Constitution is subject to amendment by the people through their representatives, no issue can be wholly removed from public debate.  Republican government might place appropriate limits on merely expressive claims, for the sake of preventing harm and even for the sake of forming good citizens, able and willing to speak freely to one another and to listen to one another, too.

Free speech in the universities, or academic freedom, seems both less and more than free speech in the polity at large.  In the first place, while the ability to lie is not generally suppressed in society and cannot be without causing more harm than good, the university depends on academic integrity, since its principal end is the search for and transmission of truth.  Plagiarism can and must be punished in the university, even though, so long as copyright is not violated, it is generally immune from law.  (Copyright law, by the way, contains an exception for “fair educational use,” acknowledging that the protection of due profit should not impede the progress of learning itself.)  Universities can and must make all sorts of judgments about the truth or value of theories and interpretations, finding some so well established that they are beyond debate—oxygen rather than phlogiston as the cause of fire, for example—while acknowledging the perennial character of debates about, for example, the human good.  One would do wrong to promote debates about matters that are clearly known, except for the purpose of requiring that proofs remain known, not just conclusions, and one would also do wrong to suppress debates about matters that are not, perhaps cannot be settled.

Universities are devoted to the pursuit of truth, but also to its transmission; their core activity is not only research, but also education.  Long experience has shown that teaching young people how to think for themselves requires allowing them ample space for self-expression, not exactly as a right, and certainly not as a right to be oblivious to correction for folly, but as an element of pedagogy, so they learn how to choose wisely and to tolerate one another’s choices.  Likewise, experience shows that scholarship, even at the level of the undergraduate, requires certain virtues; universities ignore the need to cultivate good habits at their peril, or rather, at the peril of their pupils.  Much of the controversy about student speech on campuses today results, I think, from a failure to take seriously the need for and the complexity of the moral formation of students, for which political indoctrination is no substitute and is in fact a hindrance.  Such formation is impossible, or at least incomplete, if it does not include their initiation into participation in the pursuit of truth and recognition of its value.  Whatever choices universities make about free speech ought to be made while remembering that inquiry and learning are their highest and distinctive end.  The polity has both more and less to be concerned about, and thus needs both more and less freedom of speech.

Read Professor Stoner’s essay in The Value and Limits of Academic Speech