Finding the Guideposts for Free Speech on Campus

I was outside on the campus of Metropolitan State University Denver (MSU) observing a pro-Palestinian protest of the showing of a pro-Israeli movie when Merrill Schwartz of AGB called to ask me about writing a legal column for Trusteeship. After I told Merrill what all the noise was, she said, “Why don’t you write about free speech?”

Public universities are bound by the free speech clause of the First Amendment. Modern free speech law (dating from the early 20th century) is based on Justice Holmes’ earlier version, and later coined by Justice Douglas as the “marketplace of ideas” (itself reflecting the philosophy of Mill, Milton, and Rawls), is particularly apt for modern universities’ pursuit of knowledge and truth. Core to this philosophy is that the collision of ideas leads to the truth. Private universities, while not bound by the First Amendment, have developed similar principles, and employed them to varying degrees of success. Since the Vietnam War, campuses have been testing grounds for free speech. Still, free speech has particularly vexed campuses during the current Israel-Hamas conflict.

It is particularly difficult to create free expression policies or a culture of free expression in the midst of a conflict when emotions are extremely high. The best time to consider campus policies is before you need them. Especially these days, the notions that none of us has a franchise on the truth, and that speech should not be censored because it makes us uncomfortable, does not come naturally to most people, and certainly not so during a conflagration. Rather, this culture must be established with the engagement of all university stakeholders, via policies, statements of principle, pedagogy, and leadership from the top, when times are quiet. If this is done properly, when crises arise and demands are made on the president or board to make or disavow political statements, the university leadership and community will be better prepared to engage in robust debate and more likely to emerge without casualties. It is also helpful to develop principles about when and why university leadership will speak about public issues. The board should be educated about all of this, ideally in public session.

Good resources exist to guide the development of this culture. MSU Denver worked with the Bipartisan Policy Center (BPC) on its campus speech initiative, which helped us develop a robust free expression statement. The statement was developed by a task force stood up by President Janine Davidson, with representatives of key university stakeholders. A significant part of the task-force work dealt with reconciling free speech and diversity, equity, and inclusion principles. The statement was reviewed and approved by our board of trustees.

Our work with the BPC also included diving deep into the presidential speech question, that is, when and why should a president make a statement about a public issue. The 1967 Kalven Report remains the gold standard on this question. A key statement from the report is: “The neutrality of the university as an institution arises […] not from a lack of courage nor out of indifference and insensitivity. It arises out of respect for free inquiry and the obligation to cherish a diversity of viewpoints.” Notwithstanding the Kalven Report and recent related efforts to determine when a president should speak, the Israel-Hamas conflict put many presidents to the test. They were criticized for speaking, for not speaking, for not speaking enough or strongly enough. Some were taken apart on the chopping block of politics. This is in part because universities have become the proxy battlefield in the larger culture wars. Thus, the imperative for university leadership to have the tools to navigate such public and donor-driven pressure.

At MSU Denver, we also took our free speech efforts to the classroom, where President Davidson and I co-taught a course on free speech. We hosted Colorado Attorney General Phil Weiser in a panel discussion about his Scalia-Ginsberg Initiative, designed to further civil dialogue among attorneys general.

All of this work elevated notions of free speech to our leadership team, our community, and to our trustees, many of whom became quite interested in the issue. So, when the Israel-Hamas conflict happened, we were able to address questions from all points of view, and to be clear that no viewpoints would be censored, violence would not be tolerated, and the president would not make statements endorsing one side or the other. Because we had established a culture of free expression and had created a system to determine when our president should make public statements, and because our board understood our culture and stood behind our president (after robust discussion), we came through this tough period successfully.

David Fine is general counsel and secretary to the board of trustees at Metropolitan State University Denver.