Free Speech Above All

Minnesota Faculty Senate mulls statement making free speech a “paramount” value, but critics wonder whether the pledge as written condones hate speech. A separate proposed policy would create an on-campus free speech advocate.

May 10, 2016
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The University of Minnesota at Twin Cities is considering a set of statements on free speech that, if passed, could be the strongest such affirmation seen on any campus. Yet the statements’ future is uncertain, given concerns -- especially those from students -- about free speech being “paramount” to other values. At the same time, it’s unclear whether free expression can truly be protected without declaring it paramount.

“Ideas are the lifeblood of a free society and universities are its beating heart,” reads a statement passed by a majority of members of the powerful Faculty Consultative Committee and now under debate before the Faculty Senate. “If freedom of speech is undermined on a university campus, it is not safe anywhere. The University of Minnesota resolves that the freedom of speech is, and will always be, safe at this institution.”

The statement says that embracing free speech involves four core principles, including that a public university “must be absolutely committed to protecting free speech, both for constitutional and academic reasons.” The university must accordingly guarantee every member of its community “liberty to express ideas regardless of viewpoint,” and officials “must neither implicitly nor explicitly suppress, punish or regulate protected speech because of its content. … No member of the university community has the right to prevent or disrupt expression.”

Free speech includes protections for speech that some find “offensive, uncivil or even hateful,” according to the statement, and it can’t be regulated “on the ground that some speakers are thought to have more power or more access to the mediums of speech than others.” And while the university encourages respectful dialogue and understands that the “shock, hurt and anger experienced by the targets of malevolent speech may undermine the maintenance of a campus climate that welcomes all and fosters equity and diversity,” it says, “no word is so blasphemous or offensive it cannot be uttered” at a public university.

The language recalls recent on-campus controversies related to free expression, including a campus investigation of flyers advertising a free speech event that featured a Charlie Hebdo magazine cover with a picture of Muhammad.

In addition to those principles, the consultative committee late last month unanimously approved for further consideration a series of proposed actions. “It is painfully obvious that many members of the university community do not understand or appreciate the freedom of expression,” that document says, recommending that the proposed core principles be widely published, including in orientation materials. The university also should encourage a “climate of respectful debate,” such as by intensifying efforts to sponsor structured debates about controversial topics.

Relatedly, the university must “vigorously protect” when disruption is anticipated or occurs, according to the document. It defines “serious disruption” as chanting, persistent heckling or other noisy demonstrations that make it difficult or impossible for an audience to hear what a speaker is saying. It notes that disruption does not include peaceful protest outside an event, holding signs or wearing armbands in opposition of an event or speaker, or asking “critical questions” during a planned question-and-answer period.

Most notably, the actions document proposes the creation of a free speech “advocate” or watchdog charged with “ensuring freedom of expression is respected and protected during any investigation” involving free speech issues on campus. That role could be assigned to an independent officer or a person or committee within the existing faculty governance structure.

The problem, according to the document, is that investigations by various university offices, including equal opportunity and human resources, sometimes involve free speech. Yet such offices focus on “cleansing public discussion so that it is inoffensive” and promoting inclusivity, rather than affirming free speech. The unfortunate effect, the proposed policy says, “is to create an imbalance by which protected speech is subordinated to other values. But speech may not be curtailed simply because it is offensive.”

Dale Carpenter, Distinguished University Teaching Professor and Earl R. Larson Professor of Civil Rights and Civil Liberties Law at the University of Minnesota Law School, and a member of Faculty Consultative Committee who’s strongly in favor of the proposals, said in an interview that they don’t suggest “speech can never be regulated, but that it can’t be regulated in the interest of trying to elevate some topics over others.” Libel, slander, harassment and threats are all no gos, for example, he said, but conversations can’t be shut down because they’re offensive or even hurtful to some.

The consultative committee also recently passed an addendum further explaining its moves to protect free speech. It notes that there always have been challenges to First Amendment rights on campus. But current calls to limit speech stem from concerns about creating a welcoming climate and fostering diversity, as well as those about structural inequalities or attempts to “level the playing field” in terms of access to speech platforms.

“While such imbalances exist, they also do not justify speech regulation,” the document says. “The Constitution forbids restricting expression on the basis of a speaker’s identity or relative power. Who is unequal? What are the criteria by which inequality is judged?” In any case, it says, government and university officials aren’t the ones to answer such questions.

Regarding concerns about climate, the addendum says, “There are many steps the university may appropriately and lawfully take to create a welcoming climate, including by fostering diversity in its faculty and staff. But no person or group, merely by claiming offense, may bring down the disciplinary machinery of the university to prohibit or punish speech on that account.”

Together, the proposed Minnesota documents operate as a reminder that First Amendment rights remain a priority alongside other legal concerns that have come into focus on college campuses in recent years, such as those about inclusion and sex discrimination. In that sense, they echo a recent report by the American Association of University Professors arguing that Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education, has been in many cases misapplied and threatened or stifled free speech and academic freedom. (It should be noted that report was met with criticism that it unfairly and in some cases inaccurately pitted campus safety concerns against faculty interests.)

The Foundation for Individual Rights in Education has long made similar arguments similar to AAUP’s, condemning student calls to disinvite controversial speakers from campus or otherwise censor speech in the interest of students' emotional interests. FIRE gave a nod to Minnesota’s proposed free speech core principles in March, calling them an “opportunity to commit to protecting free expression on campus.”

Minnesota is not the first campus to attempt to reaffirm free speech in the last few years. The University of Chicago adopted a statement saying that “Except insofar as limitations on that freedom are necessary to the functioning of the university, the [university] fully respects and supports the freedom of all members of the university community ‘to discuss any problem that presents itself.’”

The Chicago statement says that while ideas on college campuses will “naturally conflict,” it is “not the proper role of the university to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable or even deeply offensive.” And although Chicago “greatly values civility, and although all members of the university community share in the responsibility for maintaining a climate of mutual respect,” it says, “concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas.”

Princeton and Purdue Universities, among a number of other institutions, have adopted portions of that statement. But Minnesota’s proposals, including the notion of a faculty watchdog for campus-based investigations involving matters of free expression, are the most comprehensive to date.

While concerns at Minnesota reflect broader ones across higher education, the campus also has been roiled by its own set of events with implications for free speech. In November, pro-Palestinian protesters -- three of whom were arrested -- repeatedly disrupted a talk by Moshe Halbertal, a law professor from Hebrew University in Jerusalem. Last academic year, the university’s Office of Equal Opportunity and Affirmative Action investigated and questioned the judgment of professors involved in a panel on free speech who promoted it using a Charlie Hebdo cover featuring the prophet Muhammad.

Not-So-Gentle Reminder

Yet Carpenter said no one thing had prompted the statements. “There is an occasional need for a reminder that freedom of speech is a pillar of free inquiry and education. We are going through a cycle in which some people think you can suppress speech on the grounds that it deeply offends people or that you can suppress speech because the speakers are just too powerful, but that’s not the case.”

He added, “I don’t see any great emergency -- but I do think there is a need for a full statement on freedom of speech principles, which the University of Minnesota has not had until now, that’s needed at a major public university.”

The Charlie Hebdo inquiry was prompted by student, faculty and external complaints. Critics said that using a poster with an image of Muhammad was disrespectful to Muslims on campus, while others said that in a discussion of the murders of the Charlie Hebdo employees over such images, the poster was appropriate -- or should be protected by principles of free expression regardless. And while some students support the new document, others -- including those who spoke out against the core principles document at a general meeting of the Faculty Senate last week -- remain some of biggest critics of the proposed statements.

Much of the criticism centers on free speech being a “paramount” value, and detractors point to its potential to conflict with various other laws and concerns about educational access, campus safety and protecting students. In their own discussions of the document, some members of the Student Senate have asked whether its protections for “hateful” speech condone hate speech, whether such a document is needed at all, and whether a definition of harassment should be included.

The executive committee of Minnesota’s Council of Graduate Students last month approved a formal response to the core principles saying that while a free speech statement of some kind is “necessary and appropriate,” parts of the current document do not reflect “consensus values.” Some of the language is “tone-deaf” and “ill-advised,” and the statement should note that civil disobedience is in some cases appropriate, reads the graduate student response.

Particularly jarring to the graduate student group is the core principles’ notion that free speech can’t be regulated based on the idea that some have more power or more access to the mediums of speech than others; the group called it an “advocacy statement,” not a shared value. The group also said that the section asserting that the best way to respond to offensive ideas is to rebut them with better ideas was “patronizing.” A better statement, according to the graduate committee, is that the university “does not condone speech that is uncivil or hateful. Nonetheless, when protecting expression conflicts with other values, the right to speak must prevail.”

Jonathan Borowsky, a Ph.D. candidate in economics and a member of the graduate students’ executive committee, said via email that his group is trying to promote the idea that Minnesota can make an “absolute commitment to respecting free speech, and have a respect for protest and have compassion for those who are hurt by hate speech or whose views aren't heard because of prejudice or lack of power.”

Borowsky added that an “absolute commitment to respecting free speech doesn't bind you to a completely hands-off, ‘let the chips fall where they may’ attitude.” He noted that a faculty speaker at last week’s meeting proposed the idea of “discursive affirmative action,” meaning, for example, that while the creators of the campus Charlie Hebdo flyer shouldn't be scolded for their speech, the experiences of those who felt harmed by it also may be recognized.

Catherine French, a professor of engineering, vice chair of the Faculty Senate and member of the Faculty Consultative Committee who expressed initial concerns about the wording of the core principles document, said that even though not all members immediately approved of the language as is, “there was unanimous support for making the documents available to generate input and discussion from the broader university community.”

Through further input and discussion, “modifications may be made,” she said via email. “I hope that we are able to achieve broad consensus through this process.”

Colin Campbell, a professor of pharmacology and Faculty Senate and consultative committee chair, said he supported the core principles document -- at least as a “great start” to such discussions. He characterized ongoing objections as revolving around “the relative absolute nature of the support for free speech,” and proposed that others develop their own statement proposals and policies for circulation. Still, he said, it’s unclear if any one document will ever be accepted by the senate. In the meantime, he added, “We are going to see if a subsequent document can be more appealing to a broader cross section of the university community.”

Last week’s Faculty Senate meeting was the last of the year, and the core principles document was the only proposed free speech policy discussed. No vote was taken, and no document is likely to be taken up again until the fall.

A university spokesperson referred comments to President Eric Kaler’s comments on free speech from March, including that the university "promotes a climate of open, thoughtful and civil debate among our campus community. We encourage all to speak with respect and understanding of others, but we should not forbid speech that shocks, hurts or angers. Professor Carpenter’s notion that, ‘The best response to offensive ideas is to counter them with better ideas,’ is spot on. If there is any space in society for that, it’s the university.”

Robert O’Neil, former president and professor emeritus of law at the University of Virginia and a free speech expert, said he encountered free speech challenges in his career, including when an invited speaker was shouted off the stage at another institution; he later promised to return after the university affirmed his right to speak. While the O’Neil said he had some misgivings about the proposed “paramount” value language at Minnesota, he said he applaud the faculty’s efforts over all and found the rest of the statement “admirable.”

Asked whether the core principles statement would mean anything at all without elevating free speech to such a degree, Carpenter said the short answer is no.

“Free speech is a term of art that already involves a balancing of interests … that’s already done,” he said. “What we’re hearing now is claims that some of kinds of values should prevail over free speech, and I don’t think a free speech statement for a public university would accomplish much if it didn’t clarify that in the face of such claims we are reaffirming the pre-eminence of free speech.”


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