Are there limits to what can be said on college campuses? When a far-right-wing speaker is disinvited to speak on campus, is it an issue of Free Speech?

My guest today, Neal Hutchens, explores these issues in his research and writing. Ultimately, his look at the legal issues facing universities when it comes to free speech and academic freedom goes to the heart of the purpose of higher education. What are colleges for?

Neal H. Hutchens serves as Professor and Chair in the University of Mississippi School of Education’s Department of Higher Education. His latest opinion piece on campus free speech laws was published in The Conversation in April.

Today’s episode was put together in collaboration with the Education Law Association.

Citation: Hutchens, Neal H., interview with Will Brehm, FreshEd, 156, podcast audio, May 27, 2019. https://www.freshedpodcast.com/hutchens/

Will Brehm 2:04
Neal Hutchens, welcome to FreshEd.

Neal Hutchens  2:05
Thank you very much, Will. I’m very happy to be here.

Will Brehm  2:08
So, about two years ago Ann Coulter, her appearance at the University of California, Berkeley was cancelled. Why was this event canceled?

Neal Hutchens  2:17
So, Ann Coulter, who is very much a conservative pundit -likes to play that role of conservative lightning rod- was invited by a student group at University of California, Berkeley to appear on campus. Berkeley is of course historically a center of free speech and expression in protests -that goes back to the student rights movement of the 1960s. Essentially what happened, with Coulter appearing on campus -and it was at a time that has continued of a lot of tension on campuses about certain kinds of speakers. Especially, I would say even speakers that push the envelope more than Coulter but certainly people like Coulter who want to advance a certain agenda. They want to really hit people’s buttons, they want to incite, they want to be provocative. So essentially what happened, there was a disagreement over where to have the event. The University was worried about -not just supporters of Coulter- but individuals who are opposed to her, so counter-protesters. And that’s happened at UC Berkeley several times in the last couple of years, certainly, and it’s something we could talk about later what happened at the University of Virginia and in Charlottesville, where we had riots that became deadly. So, you had Neo-Confederate white nationalist protesters and counter-protesters. So, it’s something that we have seen in the last several years that at certain times colleges and universities have speakers on campus, not just controversial, but institutions really have to worry about issues of safety for their students and for others attending. And so, with Ann Coulter, it really became a dispute over when to have the event, where to have the event. You had disagreements over whether she was being denied access but essentially pulled out. Later there was some litigation involving the student groups and others that had supported her being there with the university that was settled in 2018. Where the university agreed to pay some attorney fees but said essentially, we’re not having to change anything. We’re just entering into this settlement to avoid paying a larger amount. But you also had groups that are supporters that said this is a great victory for free speech rights. So that got a lot of headlines also at Berkeley and at other places you’ve had Milo Yiannopoulos. You’ve had Richard Spencer, sometimes. Charles Murray, who is another speaker that has gained headlines and you’ve had individuals protesting their appearance on campus. But this is kind of a dynamic -it gains a lot of headlines- but that we’ve seen played out on college campuses, especially in recent years. It’s not necessarily new issues of speech and expression and protest. They’ve been going on for decades at college campuses, but it’s really taken on a new profile and a new level of attention in recent years. And I think some of that is probably because we have certain kinds of organizations that are really pushing certain kinds of speakers on campus. I think they have a political agenda behind it. But that’s a way I think, to kind of contextualize what was happening with Ann Coulter’s appearance that did not happen at UC Berkeley.

Will Brehm  5:36
So, for UC Berkeley, the University, the administration was concerned about student safety and that was the sort of reasoning for canceling the event, not the issue of trying to limit free speech. Is that how they interpret what happened?

Neal Hutchens  5:55
I think that if you talk with the leadership of the institution, that would very much be their view is that instead of trying to regulate the content of the speech or the viewpoints expressed, the institution has an interest in safety. It also has an interest in keeping on the everyday functioning of the institution going even while you have speaking events going on. Now, Coulter and her supporters would have challenged that, “No, the institution is trying to shut down views because it doesn’t like us”. Again, I think a point could be made that I think sometimes for speakers like Coulter, or the organizations, especially some of the national ones that support her, they also get a lot of mileage out of being allowed on campuses. In other words, they’re pushing to be provocative so that really is part of the agenda. I think, if you peel back a little bit and examine it. But for institutions, by and large, and especially for public institutions, something that we’ll probably chat about soon is that they do have special legal responsibilities under the First Amendment, where they’re limited in being able to pick and choose speakers based on liking or disliking the message that they’re delivering. For instance, when Penn State University decided to not allow Richard Spencer who’s a white nationalist on campus: in its announcement, the University made very clear that its concern over safety was the guiding rationale for not allowing Spencer on campus. It said in the statement, the University did, that the university and its leadership were totally against all of his views. They were in opposition to any kind of values of the university, but it said, we’re not seeking to not have him on campus because of the views but because of the safety issues. And that’s something that gets muddled in a lot of these debates, is that institutions, you’ll have fingers pointed at them with the accusation that they’re really trying to stifle speech. But that can get muddled into the fact that they’re also really trying to regulate speech on campus in a way to, again, ensure safety and also all the other kinds of things that are happening on a college campus from classes to other events. And that’s not to say that institutions don’t violate these standards. I do think that institutions sometimes will overstep or overreach when it comes to regulating speech on campus but that’s certainly not always the case. And I think there are a lot of college administrators that they want to uphold the law and they want to make sure they’re following their policies and practices.

Will Brehm  8:41
Do you think that when some of these institutions do overstep the regulation of speech as you say, is there sort of a bias against right wing, conservative discourse and ideologues who come onto campus? Because you know, you hear about the Spencer’s and the Coulter’s, but you rarely hear about big events on campus that cause the same sort of political storm of more left-leaning or progressive thinkers that are also being invited on campus.

Neal Hutchens  9:15
I think that, one: that would be a really interesting area of empirical study. So, for instance, we have some research that would indicate that most college professors or a lot of college professors are left-leaning politically. But I think that’s a very distinct issue from whether or not institutions are more apt to shut down conservative speakers. I think something that would have to go into consideration of that issue, and I will admit, my view on this is I think that there are certain groups that have really seized up on the idea of free speech as political camouflage for other issues. I think Turning Point USA is a great example for that. Really using the idea of speech to push forward a political agenda. I think that in the current presidential administration we’ve seen that. For instance, former Attorney General Jeff Sessions, when he was in the part of the Trump administration came out very forcefully for free speech. I’m a native of Alabama. I remember that when Jeff Sessions was a political leader in Alabama, he tried to block LGBTQ student organizations and events. And so, I think that there’s been a narrative put forth that colleges and universities are seeking to block conservative speakers, because I really think it benefits a larger political agenda. And I do think there are some counter examples we can consider. So, for instance, we certainly have private colleges and universities that do regulate student speech very heavily. One example would be Liberty University. So, the president of Liberty University is a very strong supporter of President Trump. Liberty University has been noted on several occasions for censoring student journalists. There have also been issues in the past about the student democrats on campus, so that would be one example. For our religious colleges and universities that often do get left out of the conversation from certain groups, there’s been a lot of debate and struggle over LGBTQ student organizations and not allowing those on campus. I’ll give you another example of how this can often play out. So, Tennessee is a state like several other states that has enacted a campus speech law. So, the idea was -and if you look at the supporters in Tennessee- the legislature said, “We need this law because colleges and universities are often censoring conservative speakers”. So, we have a law in place in Tennessee. Roughly at the same time that this law has been passed and enacted, you’ll find that legislators and others in Tennessee have really been against an event called “Sex Week” at the University of Tennessee, which is sponsored by a student organization. And so that would be an example of -and you find you find these examples again and again of where, you know, and you can find them on the political left or the political right. But certainly, the idea that only conservative ideas can be a threat in relation to free speech. Another example would be that we had former Senator Kerry, who was invited to give a commencement speech at Creighton University. And the Republican leadership in that state said, “No, no, no, he shouldn’t be allowed to give the commencement speech”, and he actually pulled out. And so, that’s an example of how really these threats to speech can come from either side of the political spectrum. PEN America -which among its roles as an advocacy organization promotes freedom of speech and expression -it issued a report recently that I think is really informative. And it talks about there’s really not a free speech crisis on America’s college campuses but there are threats that exist. And these threats can come from either side of the political aisle. And also, the fact that I think that certain organizations have really pushed this idea of a free speech threat to advance an agenda that really has other political components to it. That’s much different than say, for instance, the American Civil Liberties Union, which I think if you look at their stance on free speech ideas, tends to be more neutral. Whatever the nature of the speech is, there are certain protections that should adhere to it. Another example of, I think a more neutral party in a lot of the campus free speech debates, would be the Foundation for Individual Rights in Education, FIRE as it’s often called -it’s become a really pivotal player in campus speech debates. So, FIRE will tend to take heat, I notice from both the political left and the political right, because they tend to advocate kind of for either side. You know, an interesting thing, for instance, would be if you go to a site like Turning Point USA and see the kind of litigation they’re supporting. You’ll see it coming from one side of the political spectrum. It tends to be if you take an organization like FIRE, or even the ACLU, you’ll see that they’ll become involved in speech cases that might be labeled the political left or the right or really, that don’t fit any, in our conventional notions of the political spectrum in the United States.

Will Brehm  14:44
So, you know, a lot of this obviously has to deal with the First Amendment, the freedom of speech. But we also know that American higher education is filled with public universities and private universities, and religiously affiliated universities. What are some of the legal issues that are circulating within these different types of institutions when it comes to speech and protecting speech?

Neal Hutchens  15:12
So that’s a really important distinction that can get lost in a lot of these conversations. For public colleges and universities, the First Amendment, which is often talked about -what that means is that they’re part of the government. When I teach a class on education law, and I have people that work at public colleges and universities, I’ll say, “Raise your hand if you work for the government”. And sometimes people don’t really raise their hands and I’ll say, “Raise your hand if you work for so and so institution which is a public institution”, and I’ll say, “You work for the government, you’re part of the government”. And so, to work at a public college or university means that you are part of the government. And under the First Amendment, there are limits on what the government can do in relation to the speech rights of individuals. And that holds true at public colleges and universities. So, a lot of the speech debates that have grabbed the headlines for instance, they’ve involved where student groups or others have invited a speaker onto campus. And in those kinds of situations where a college or university has created what’s often called a forum, a space for a particular kind of speech, usually under the First Amendment, outside of some pretty narrow exceptions, the government doesn’t get to pick and choose messages. And so, for instance, let’s say that I’m an administrator at a public college or university and we have a policy that student groups can invite speakers to campus. We’ve said any recognized student group is allowed to reserve certain space on campus for speakers. Now they have to be a recognized student group. They have to make sure that they do the application to reserve the space, they have to follow other kinds of rules. If they have done that, and I see Ann Coulter is scheduled to speak on campus, I, as an administrator at a public college or university cannot decide, “I don’t like the views of Ann Coulter. So, I’m just not going to let Ann Coulter speak.” Those are the kinds of things that are just very much textbook, elementary examples of violations of the First Amendment. Now, in the case of Richard Spencer, or the events that we saw at the University of Virginia, those start to be harder questions because I actually think that that’s where institutions have to look at the fact that these speakers are not really engaged in speech as much as they’re engaged in threats. And so, what are called “true threats”, or sometimes you’ll hear the term “direct threats”, those aren’t protected by the First Amendment. And so, I think where institutions are wrestling, when you have various groups that are wanting to bring speakers onto campus that -not just controversial- but that are really crossing over into threats. At my own institution, the University of Mississippi, we really recently wrestled with that issue. We’re of course in Mississippi, which is in the deep south, this is an institution that really has a historical legacy to deal with in terms of segregation. Our institution, in the last several years, has removed the state flag from campus. But for instance, we have Confederate monuments on campus, which we’re in the process of probably relocating. We had Neo-Confederates come to campus. People really didn’t want them here, but the institution was left with, how do you regulate that in the First Amendment? And these Neo-Confederate groups, I think, really, the institution had to really look closely at them and engage in a lot of outreach to see was the rhetoric really speech that the university couldn’t regulate on content grounds, or was it crossing over into threat -and that’s some of what institutions are having to deal with. And after Virginia where we had a counter-protestor who was killed in the events that happened at the University of Virginia, it shows that institutions have to take that very seriously. When Richard Spencer, several years ago, Richard Spencer, again a white nationalist, was scheduled to speak at Auburn University, and the University wanted to not allow him to speak. A court said, “No. The University has to allow him to speak”.  But there was actually some violence that erupted after that. No one luckily was killed, like what happened at Virginia. But in light of that, institutions have had to look at their policies for when outside speakers can come to campus. And so, there’s been some talk about, and for instance, Texas A&M University after Spencer was there changed their policy. I think Auburn University if they hadn’t changed it, they were looking at it. But in all these contexts, if a forum has been existed for speakers -either for invited speakers or even if the university has opened up a forum to outside speakers- generally under the First Amendment, outside of some particular exceptions, like true threats, the university cannot engage in the business of picking and choosing what views that it likes.

Will Brehm  20:18
So, I mean, one of the questions I have that comes up is that the distinction between a “true threat” and speech -like that line, I would imagine, is quite blurry.

Neal Hutchens  20:30
It can be blurry in the sense that -again, when rhetoric has crossed that line, and I do think that’s something that institutions as they’ve kind of become the societal focal point for a lot of these speech disputes. I mean, think about it. There are a lot of public places that these groups could decide that they want to go and show up and have events. No one is saying, “We’re going to head to the DMV. The DMV parking lot is where we want to have our major protest.” It shows the importance of higher education in society to colleges and universities. So, colleges and universities have been targeted for particular reasons and we’ve seen an escalation in the last several years by certain groups that are doing that. And I do think that after what happened at the University of Virginia, institutions have had to quickly ramp up how sophisticated they are about that. Now, I think one could say, one of the components has been in that is actually I think, for instance, campus law enforcement, or even campus security, coordinating with local and state law enforcement officials to actually get background on these individuals. One of the things that you’ll hear about when you have speakers like this coming to campus is actually engaging with them and reaching out to understand what their motives are. To understand events that may have happened. But one of the things I think that can cause consternation is that the idea of a true threat is something that could be restricted under the First Amendment is not that actually the individual has, maybe they don’t even have an intention of carrying out the threat. But if they are targeting particular individuals or groups, and is an actual credible threat of harm, or physical violence, then I think institutions absolutely can and should take action. And I don’t think that you would have advocacy groups like the ACLU or FIRE, certainly, they’re not going to argue with that. Where things get a little hazier tends to be often, for instance, under the disruption standard. And so, for instance, recently at the University of Arizona, you had a group of students that were referred to as the “Arizona 3”. There were a group of ICE [Immigration and Customs Enforcement] officers that were speaking on campus. The students wanted to engage in some kind of protest or disruption, that somewhat, although it looks like the presentation by the ICE officers was allowed to continue. The protesters followed the officers, at least somewhat to their car, and the students were arrested. And initially, there were criminal charges filed against the protesters. As I understand it, those charges have now been dropped. But that has also tended to be -there’s the threat issue, but I think the disruption issue, especially is where a lot of colleges and universities are trying to decide, at what point should we, for instance, have individuals arrested? Or at what point is this really in the educational realm, and at most we’re really looking at maybe the Student Conduct process, or also the fact that this is again, educational. We have students who are very engaged in what they’re doing. Maybe we should take a step back and before we say, our first option is to engage in some kind of discipline, maybe this is an educational moment. I remember not too many years ago, there was a lot of angst over the fact that college students were not engaged. They were passive, they didn’t care. And so now guess what, we have a lot of college students who care.

Will Brehm  24:16
Maybe very engaged. Too engaged for some people’s likings I would imagine.

Neal Hutchens  24:20
Yeah, I mean, I that’s it. It’s like, we want you to be active and engaged. But don’t do it so much that it makes us uncomfortable or disruptive. Colleges and universities are really, they’re mimicking, or they’re mirroring what’s happening in society. There’s just a lot of tension. There is a lot of disagreement. And so, for institutions, I think it’s very hard when students have this passion. And I’m now really speaking of students. I’m not speaking of external speakers. But for our student population, I think we have to be careful to be too legalistic, or to react too harshly to the fact that students are engaged in this process of activism and discovery. And so, for instance, that’s why I advocate if students were to take over an administrative building, I don’t think the first option is that you call the police and have people arrested for trespassing. I think your first option is, you talk, you engage. And hopefully through that process, in addition to listening to the students and the issues they’re bringing out, it’s also a chance for the students to consider what are the appropriate forms of activism? How, when should we take certain action? When should we not? Now I also think that we’re just in a period of where there’s a reexamination of what speech standards should be. The United States, under our federal constitution, and a lot of private institutions have adopted very robust free speech principles. This isn’t exactly the same that all countries do. So, for instance, in France and Germany, you can[not] have certain kinds of speech in France, anti-Semitic speech. Certainly, in Germany, images or speech related to Nazism can be restricted. You have libel laws in the UK that are much more friendly for individual suing under those laws. And so, it’s not that I’m saying that the United States automatically needs to change what it’s doing. But you certainly have a group of students and scholars and others who are saying, also, we maybe need to reexamine some of our free speech standards. Prioritizing our free speech standards, and ignoring other kinds of standards, such as a commitment to diversity inclusivity. And so, I think that is a divide that’s happening. And it’s something that’s playing out intellectually. But I would also say as someone who is an advocate of free speech. Well, that’s what we advocate all the time, exploring and testing ideas. And that’s also happening with what should speech standards be. So, for instance, it was really interesting. In the last year or so you’ve had two really prominent constitutional law scholars, Robert Post at Yale, and then Erwin Chemerinsky and they both wrote these op-eds where they really took different views of how free speech should play out on campus. So, these are two very distinguished scholars who are offering different viewpoints for this. So, I do think that these ideas are also being contested in a way that we’ll see -some of the students who don’t want certain kinds of speakers on campus, one day, they’re going to be the judges and the attorneys. And they may challenge how these standards should work.

Will Brehm  27:35
So, we’ve been talking a lot about public schools. And I know you mentioned that some private universities have taken very broad interpretations of what free speech looks like on campus. But are private universities held to a different standard when it comes to free speech in a legal manner?

Neal Hutchens  27:52
In general, they very much are held to a different standard. So, I talked about the public colleges and universities, their governmental actors, state actors. So that puts a responsibility on them to follow first amendment rules in regulating speech, and especially student speech or other speech on campus. Private colleges and universities don’t have to do that. And we see that, for instance, with religious private institutions. They can have a mission that will state that, you know, individuals enrolled in that institution or teach in that institution have to sign statements of faith. And so, they’re actually as private entities, they also have First Amendment protections related to speech and religion, that allow them to carry out their mission. The only real exception we have in California, they have a law called the Leonard Law, that it applies to private, secular institutions and requires that private, secular institutions have to give the same speech rights to students, as do public institutions under the First Amendment. But in general, private colleges and universities have much more legal leeway. And some institutions give much less discretion to students and their speech rights. But there are a lot of private colleges and universities that view freedom of expression and speech as really integral to part of what the institution is supposed to be about. And so, in their policies and other guiding principles, they give free speech, freedom of speech that’s very akin to the First Amendment. You’ll sometimes hear about the University of Chicago principles on free speech a lot recently. So, University of Chicago is a great institution, it’s also private. And so private colleges and universities, where a legal responsibility would come in for them is, if in their standards, for instance, in policies pertaining to students, if there’s a statement, we believe in free speech rights, we don’t regulate speech on the basis of viewpoint. But then they would, in fact, do that a student could have a contract-based claim. In general colleges and universities for all types of institutions but it’s especially important for private institutions, when they look at the student and the university and maybe they’re in a bit of dispute, they’ll apply contract-like principles. And so, if you think about student handbooks, or other things like that, that’s part of the contract. So, institutions have a legal responsibility to follow the terms they’ve set out the contracts and student disciplinary codes, student handbooks and other places.

Will Brehm  30:30
It’s such a fascinating topic, because it seems like what we’re debating is actually the purpose of higher education. Whether it’s an area where a diversity of speech can exist, whether there’s threats, and how they’re articulated, things like student activism. I mean, it really seems like these debates are so vital and important to the very foundations of what we mean by higher education.

Neal Hutchens  31:01
I think that’s right. And that’s why, I noted earlier that when you have groups and protesters, they don’t head down to the DMV in large, most of the time -I’m sure there are protests that happen at the DMV, probably spontaneously, at times.

Will Brehm  31:15
Just anger, just absolute anger.

Neal Hutchens  31:17
But Turning Point USA has not pushed for the President to issue an Executive Order about the DMV and freedom of speech. So, these are special places and institutions. I really think they’re a battle place for ideas and values. And so just as our society right now is very polarized, these ideas and values are playing out on our college campuses. I also think one thing to note about a lot of these speech debates that are happening is they’re really only one kind of the speech that happens on college campuses. So, for instance, I’m a faculty member, I had to go through a process called tenure. And I had to publish as part of that. And in that process, while I may think that I view that there were some important speech rights included under the First Amendment, it wasn’t unfettered. So, one of the things in general on free speech for the government is that it doesn’t engage in evaluating ideas. But if I’m a chemistry professor, my colleagues who are evaluating me for tenure and promotion, they absolutely evaluate my ideas. If they think they’re rubbish, I may not get tenured. If they think that what I’m teaching is incorrect, I can be in trouble. Likewise, in the classroom, free speech doesn’t exist in the same way as it does outside of the classroom. If I’m a student who does not believe in evolution, and I want to be a biology major, and I’m taking a class that is dealing with a section with biology, and I’m asked about evolution, and my response is, “Everything was created in six days”. My free speech rights protect me for saying that. No, that’s not how it works. And courts have been very consistent, that in certain circumstances, colleges and universities and professors and administrators, we can actually heavily regulate speech. And so, I think one of the things in this universe of free speech debates on campus is to realize that actually a lot of speech that does take place in higher education is supposed to be of a certain kind, of a certain quality. That’s why we have concepts like peer review, so things can be vetted, they can be tested. And so, I think that that sometimes doesn’t necessarily get recognized the nuance of all the different kinds of speech that happens on our college campuses. And a lot of the protests and other things -and I think this is part of the debate of college campuses. Is to what extent should our college campuses, just be kind of the general public forum for debate? In other words, you show up, you get to say whatever you want, there’s no evaluation of quality of that. And I think you certainly have some groups and entities that would say, at least part of the college campus, that’s absolutely what it needs to be. I think where we’re seeing somewhat of a pushback is that you have other advocates for certain kinds of values, including the educational mission to say these things don’t align with the educational mission. And if we look at that educational mission, we evaluate the quality of speech and ideas every day, students don’t earn certain grades because of the quality of the speech, because the ideas are deemed bad or shoddy. People go to conferences, academic conferences, or they present on campus, I know that when I’ve presented in front of peers, including at campus talks, people disagree with me, and they tell me, “Those are really bad ideas that you have Hutchens.” And that’s part of what we do. And we actually don’t treat all ideas as exactly equivalent. I mean, that’s part of this -in the scientific process, for instance, you’re testing things, you’re looking for those answers. And so, I do think though then it becomes an interesting question that really has been pushed to the fore that in this environment of higher education, in which ideas are actually often heavily contested, and people actually are evaluated for their speech and ideas. They maybe don’t earn the highest grade in the class. Maybe they submit a dissertation or another paper that has to be revised, or maybe someone doesn’t get tenure, or they don’t get a job. Well, then how much are we just the general public sphere where there is no evaluation of the ideas? And so, Robert Post who I talked about earlier, who is at Yale Law School, a leading person writing on academic freedom and constitutional law, he really thinks institutions have gone too far in just saying part of our job is to just be this general place for free speech and expression. We need to push back against that. We need to question with student groups and others, what’s your educational purpose for having this speech on campus? And so, I do think that’s a countervailing push that we’ve seen against some of the Free Speech Movement. And you know, what will be interesting to see in 5 or 10 years, do we see some change in how some of the rules work? Or do we actually just open it up more in terms of what we see for instance, under certain state laws that have been passed?

Will Brehm  36:43
Well, I for one am going to keep following your work over the next 5 to 10 years to see what ends up happening. Neal Hutchens, thank you so much for joining FreshEd. It really was a pleasure to talk today.

Neal Hutchens  36:53
Thank you very much. I really enjoyed it.