Universities regulate speech in various ways: they disinvite some speakers and invite others in their stead; they cancel events entirely; they make it financially impossible for students to organize events in the first place; they interpret speech as harassment, and then discipline the speaker; they develop speech codes against “offensive” speech; they discourage faculty from developing certain courses or covering certain material in existing courses. How should we assess when such restrictions are justified, if they ever are?
We think that speech restrictions are like acts of war, and so we should approach their justification using just war theory. Speech restrictions strike at some basic interests: freedom of speech, freedom of inquiry, and even freedom of association, insofar as speech restrictions discourages members of an academic community to gather and explore ideas together. And given the way that these freedoms are linked to the aim of the university as a truth-seeking institution, they don’t just deserve protection as interests of particular individuals, but as freedoms that serve the university’s mission. So, speech restrictions must meet a high bar.
Just war theory is an attempt to identify those conditions under which wars can be justly entered (the jus ad bellum conditions) and justly fought (the jus in bello conditions). It’s designed to provide an account of when actions that would normally be impermissible are, in fact, permissible. After all, its sole purpose is to answer the question: what makes it morally acceptable to engage in conduct, such as killing, that is normally wrong? In the present context, that helps us answer a parallel question: what makes it permissible to restrict speech, which would normally be a serious violation of various basic and institution-serving interests?
There’s much more to be said in defense of the idea that this is the right way to approach speech restrictions. But for now, let’s suppose it is, and then consider what that might imply about whether universities are justified in trying to restrict speech. Here, we’ll just focus on one of the jus ad bellum conditions, which insists that there be some likelihood of success to your military action. The idea behind this condition is that we shouldn’t throw away lives: if we are going to expose people to mortal risk, then we had better have good reason to think that doing so is likely to achieve our aims (which, of course, themselves need to be morally justified). When we consider a particular speech restriction from this perspective, we need to ask whether it will actually prevent the kind of speech we find objectionable from taking place, or whether it simply drives it underground or outside the university entirely. In both cases, we have to consider the costs and benefits of those outcomes. Likewise, we should consider whether our long-term objectives are likely to be achieved by speech regulation. How does speech restriction affect the position of the university in public life more generally, with special attention to the degree to which it’s seen as a valuable institution that’s worth continued public subsidy?
We doubt that many speech restrictions meet the likelihood of success condition. Our suspicion is that, in the mid-to-long term, speech restrictions will harm university budgets; and, when budgets are tight, humanities and social science departments tend to suffer.
Such outcomes are likely because excluding certain conservative opinions from campuses validates the idea that universities are propaganda centers to serve the liberal agenda. Take, for instance, the University of Oregon, which last year effectively banned the expression of many conservative stances on issues such as race, gender, and sexual orientation as “discriminatory harassment”, even when said expression takes place in private homes (Volokh 2016, Harnden, Le and Liebman 2016). It’s probably only a matter of time before someone successfully sues the University of Oregon in a Federal Court on the grounds that it’s violating the First Amendment.1 Or consider President Trump, who tweeted after one of the dustups about Milo Yiannopoulos, “If U.C. Berkeley does not allow free speech and practices violence on innocent people with a different point of view – NO FEDERAL FUNDS?” (Trump 2017). Add to that, of course, frustrated conservative voters, who have already shown their willingness to pressure their State representatives to teach universities a lesson.
The threat posed to public universities by this legislative-judicial pincer is hardly trivial. Though it’s often less than we would like as a percentage of our budgets, public funds remain crucial to the bottom lines of most institutions — whether through direct funding measures (as in the case of state institutions and research grants given to private universities) or indirect ones (as we see in federal student loan programs). Many conservatives, rightly or wrongly, see the mission of the university to provide job training— not the social good of making citizens — and object to funding private benefits with public dollars. What’s more, they object to what they regard as indoctrination in progressive thought, and the growing resentment towards public universities and their employees is a testament to this perception. In fact, one might see the stunning electoral successes of politicians such as Trump and Scott Walker as signs that this way of thinking is gaining traction in US politics (Cramer 2016). If universities keep giving ammunition to these populist conservatives by effectively banning their views from discussion, they will have all the more motivation to gut higher education and cut off the funding for the humanities and social sciences, which are seen as the greatest culprits in excluding conservatives from campus. This threat is real and imminent. The Republican tax bill that passed the House of Representatives in late 2017 treated graduate tuition waivers as taxable income. It’s been modified since then, but suppose that it had been signed into law. Who, in such circumstances, would study philosophy, sociology, political science, astronomy, history, or dance? Prestigious programs at private universities would survive, but the prospects for the rest would be grim, and it would only accelerate the trend of turning so many universities into vocational schools.
What’s more, we shouldn’t forget that liberal strategies can also be adopted by conservatives. Consider a bill proposed in California in 2016, SB 1146, which would have prevented religious schools that prohibit same-sex relationships from receiving state grants, and which would have made them subject to discrimination lawsuits. Given that so many schools are tuition driven, threatening their funding would have amounted to rather serious pressure. The same is true of an earlier California initiative to limit the tax-exempt status of religious schools. It isn’t hard to imagine conservative lawmakers employing similar tactics. Imagine state grants being contingent on satisfying a kind of “equal time” requirement for conservative ideas, or an attack on the tax-exempt status of private institutions generally. How many schools could afford to hold out?
In short, universities can’t sway the public opinion against such attempts to scuttle higher education while also prohibiting conservative opinions from campus. If we keep fighting the battle against those ideas, we will lose. And insofar as that’s the case, the likelihood of success condition isn’t met, and many speech restrictions on campuses today are unjustified.
Cramer, K. 2016. Politics of Resentment: Rural Consciousness in Wisconsin and the Rise of Scott Walker. University of Chicago Press.
Harnden, E., Le, S. and Liebman, B. 2016. “University of Oregon Investigative Report.” https://provost.uoregon.edu/sites/provost1.uoregon.edu/files/final_investigative_report_redacted_-_final.pdf
Luban, D. 2004. “Preventive War.” Philosophy and Public Affairs, Vol. 32, No.3 (Summer 2004) pp. 207-248.
Trump, Donald (@realDonaldTrump) “If U.C. Berkeley does not allow free speech and practices violence on innocent people with a different point of view – NO FEDERAL FUNDS?” 2 Feb 2017, 3:13 AM, Tweet. https://twitter.com/realDonaldTrump/status/827112633224544256?ref_src=twsrc%5Etfw&ref_url=http%3A%2F%2Fwww.mercurynews.com%2F2017%2F02%2F02%2Ftrump-tweets-at-uc-berkeley-no-free-speech-no-federal-funds%2F
Volokh, E. 2016. “At the University of Oregon, No More Free Speech for Professors on Subjects Such as Race, Religion, Sexual Orientation.” Washington Post. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/26/at-the-university-of-oregon-no-more-free-speech-for-professors-on-subjects-such-as-race-religion-sexual-orientation/?utm_term=.6a063d043aa7
Texas State University
Texas State University