Free speech, we believe, is of immense import. Its importance is more pronounced on college campuses than elsewhere. I have heard some claim, in fact, to be “free speech absolutists.” I am not certain what that claim amounts to, but the claim that speech should never be impeded or bring penalties to the speaker is false, even when we are talking about college campuses. Like all rights, a right to speak is limited. The limits, though, are minimal. If you are in my home or my place of business, I might require you limit what you say. If you don’t like the limits I set, you may leave. I cannot require that you stay and refrain from speaking about something you wish to speak about, but I can require that if you stay you refrain from doing so. What makes this the case? That is, what sets the normative limits of speech?
In my “Psychological Harm and Free Speech on Campus” (Society Volume 54 No 4, 2017: 320-325), I argue that the normative limits of speech are set by harm but that harms caused by speech on college campuses are limited. This is because harm, properly understood for these purposes, is necessarily wrongful and speech as it normally occurs on college campuses is rarely wrongful. As I say in “Harm: An Event-based Feinbergian Account,” the raisin d’etre of college is
to facilitate discussion, enlarge knowledge, and create well rounded and fully developed human persons. To do that well, colleges must have open and honest inquiry without limits determined by topic or viewpoint. Discussion of even offensive material is part and parcel of college life. Taking part in such discussion is never wrongful and hence never harmful—and so not the sort of speech that is rightly interfered with.
Given that context, wrongful speech on college campuses is rare, so limits to speech on college campuses must be rare. Of course, there can be wrongful speech—even on college campuses. Libel and slander are always wrongful, so potentially harmful and subject to limitation and penalty.
There is a clear lacuna here: I claim it is harm that sets the normative limits of speech—i.e., that allows for interference with or penalty of a speech act—but it is unclear what harm is. Many have claimed, of course, to be harmed when someone insults them or says something they find personally offensive. Imagine, for example, a discussion in a “Contemporary Moral Problems” philosophy class regarding pornography, homosexuality, or abortion. A student in such a class may find the topic itself or some view thereof offensive. For a more specific example, consider that there might be discussion that leads to considering (and perhaps defending) the view that lesbian couples make the best parents. Perhaps one religiously devout student finds this offensive and sacrilegious and claims the statement harms them. Is this reason to limit speech? The answer, I hope is clear: no. What this means is we need a clear definition of harm so that we can say when interference or punishment with a speech act is permissible. Indeed, my primary goal in “Harm: An Event-based Feinbergian Account,” is to provide just that.
Following Joel Feinberg (see, e.g., Harm to Others [NY: Oxford University Press, 1984]), I argue that all harms are wrongful setbacks to interests of individuals. This definition—and indeed—the very attempt to define and use the concept of harm at all—has been criticized in the last couple of decades. I defend a modification of it, claiming that “to undergo a harm is to be the subject of an event wherein one’s interests are wrongfully set back and wherein the status of the undergoing of the harm derives from its being the sort of event that it is (namely, a wrongful setting back of interests), independently of the badness of any resulting state.” On the view that I defend (see my Toleration and Freedom from Harm, 2018), only when there is a harm present in that sense is interference or penalty permissible. Indeed, when a harm in that sense is present, I argue that “there is pro tanto reason to interfere with the actor.”
It is important that the reason in favor of interference is only pro tanto. It can be outweighed by other factors. Hence, there may be occasions when there is a genuine harm (perhaps a genuine psychological harm) and yet interference (or penalty) is deemed inappropriate. Imagine, for example, that in the class discussed above, a lesbian student has her interests set back by the discussion because other students turn to her and ask her obnoxious questions (and ask them obnoxiously) about her life and parenting. The fact that the questions are asked in a wrongful manner and that they set back her interests—perhaps in not being made the center of negative attention, perhaps in mental calm—means there is a harm. Should there be penalties in such a case? I am inclined to think that this sort of behavior would not be likely to occur in the classroom of a good professor—because being a good professor entails, in part, setting a polite and hopefully friendly classroom environment. I am also inclined to think, though, that should such an event happen, the professor ought to take the opportunity to discuss why it was problematic and how the students could better (more respectfully) take part in the classroom discussion in the future—but that nothing further should occur. Punishment here would not serve any educative purpose and may in fact hinder it by discouraging discussion. Interference would be a mistake.
The volume Professors Surprenant and Downs have put together and that we are all discussing now is of tremendous importance. Colleges have seen too many instances of the stifling of speech in the last few years. This is unacceptable as it is opposed to the raisin d’etre of college. Further, allowing extensive free speech, especially on college campuses, is absolutely essential for a healthy polity. We now live in a society where people are afraid to discuss religion or politics with friends and family. The effect of this is that people only discuss such things with those they antecedently believe will agree with them. Hence, the electorate is divided into factions of people that seem unable to recognize that those who disagree with them may be right—or even that they matter. We need free speech—especially on college campuses—so that members of the polity can learn to discuss difficult issues with everyone, especially those they disagree with. We need to increase civil discourse, not limit it.
Limits are, of course, sometimes rightful. In my contribution to the volume—“Harm: An Event-based Feinbergian Account”—I provide a clear definition of harm as that term is used in what I argue is the correct normative limit. That limit is the presence of harm. As John Stuart Mill said, “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” (On Liberty. Indianapolis, IN: Hackett Publishing, 1978, originally 1859: 9). Harms from speech on college campuses are rare. This is because all who attend college expect—or should expect—to hear views that conflict with their own, that might seem offensive or worse. They need to hear such views because they need to be challenged so that they will develop the mental wherewithal to think things through clearly on their own and, indeed, to respond to challenges to their own views. Sometimes they will be lead to change their views in the process, sometimes they will develop better rational defenses of their views. As I said in “Psychological Harm and Free Speech on Campus,”
In the college environment, the real harm is caused when students are not challenged. Students might start out devout Christians or Leftists (or anything else) and remain so upon graduation, but if they were not exposed to any beliefs that contradicted theirs in the four years they were in school, the school failed them. Miserably. Any money spent on tuition, fees, etc., were essentially stolen as they did not receive what they paid for.
Interference with that sort of theft might well be permitted. That is, we should work to correct any college that seeks to limit speech that does not make someone the subject of a harm—an event wherein one’s interests are wrongfully set back and wherein the status of the undergoing of the harm derives from its being the sort of event that it is (namely, a wrongful setting back of interests), independently of the badness of any resulting state. (By the very same token, though, there may be a college with limited speech—so long as all members of such a college consent to its policies, those policies would not wrong them. Still, we might refuse to give talks at such places or to hire their graduates, who are likely to be ill-prepared to face views they disagree with and to think for themselves more generally.)