Speaking Freely

By    //    Volume 26,  Number 3   //    Summer 2018

As freedom of speech controversies continue to command headlines, institutions are facing unprecedented pressure to define what, when, and how speech should be given free rein or curtailed to preserve order and morality. A plenary session at AGB’s National Conference on Trusteeship in April featured a distinguished panel of higher education leaders who shared their strategies for managing the disruption—and moving forward in a time of divisiveness. Excerpts from the discussion, “Navigating Challenges of Freedom of Expression,” follow.

Frank Sesno: The issue [of freedom of speech] has reverberated around higher education. It has mobilized student groups, catalyzed faculty, captivated the media, and dominated—and sometimes divided—boards. To get us started, how about a single sentence or two about what you think people least understand about free speech on campus?

Teresa Sullivan: If someone from the university says something or writes something, that does not mean the university approves of it. And if the university fails to denounce that statement, that also does not mean the university approves of it.

Janet Napolitano: Freedom of speech is not free. Hosting speakers who bring controversial views, and at the same time, protecting the safety and security of campuses— students, faculty, and staff—comes with a price tag, and it’s a price tag we should be willing to bear.

Sandhya Iyer: I find the most prevalent misconception about free speech is that there is a unitary meaning. The legal meanings are various, the vernacular understandings are limitless, and within the framework of shared governance and decentralized academic decision making, it’s really a challenge to reach that common understanding and transmute it into policy.

Shauna Diggs: Freedom of speech has two sides. So, it can work for you or against you depending on which side you’re on.

Will Creeley: I would say no party or ideological base has sole ownership of freedom of speech.

Sesno: We’ll explore this [issue] with an overview of some of these incidents and what they mean—the cost, the engagement of boards, what boards can and should do in support of or to challenge their institutions, and perhaps what’s beyond our reach for the immediate forecast but may be a longer-range solution. Janet Napolitano, let me start with you. Last October, you announced a National Center for Free Speech and Civic Engagement to be based in Washington as part of a serious educational research and advocacy effort on behalf of the First Amendment and its critical role in democracy. And in an op-ed in USA Today, you said, “As president of the nation’s largest public research university system, lately I’m often asked why the University of California has spent millions of dollars to ensure that provocateurs can safely exercise their right to speak hate on our campuses. Then I am asked about the rights of our students and staff to feel safe and valued in the campus community they know as home. In essence, what I’m asked is, ‘Whose side are you on?’” What is your answer?

Napolitano: Well, I think I’m on the side of speech. I believe that universities are institutions that should embody the highest values of free speech. I believe that once you start dictating what kinds of speech and the content of speech, you are quickly on a slippery slope. I do believe that there are actions that campuses can take with respect to groups who may be the targets of some of that free speech. It’s their campus too, and one of the things we can do is encourage them to speak so that the remedy is not a limitation on speech but, in fact, is more speech.

We started this center because it seemed to me that with this kind of politicization of the notion of free speech on college campuses, there was room for study and room for exploring where students today get their views of the First Amendment. Where do they derive their values where speech is concerned? How do we best educate the next generation about free speech and what it means, how it’s been used in the past and how it has not always been used as it sometimes is today, as a tool of, say, the alt-right, but was also a tool of the civil rights and women’s rights movements? So, how do we … [provide] historical context and a feel for what the First Amendment really means?

Sesno: [In the op-ed], you pointed out costs, and of course, you also talked about security. When you have to take steps because of cost or security, how [are you not] seen as an impediment to free speech?

Napolitano: We had a concern that we didn’t have a never-ending pocketbook, and if speaker after speaker after speaker were implicating security concerns, where would it stop? Fortunately, we didn’t arrive there, and I think that is a gray area for the courts. But it is also something for boards to be knowledgeable about because these are costs that are going to come right out of your operational budgets.

Sesno: Shauna, the University of Michigan had a request from a white supremacist group to speak on campus. How did the institution respond and what was the most difficult part of that for you?

Diggs: Obviously, we had many conversations, as everyone here has had, around the issue of free speech, taking into consideration the security issue, the cost, the safety of our students. Probably because I’m an African-American woman, I see free speech a little bit differently, I think, than many young people today. So I decided [to be] on the side of having [the group] come speak.

Sesno: So you were on the side of favoring a white supremacist group to come to campus to speak?

Diggs: Yes, and I call [the speaker] the person-who-shall-not-be-named. I don’t want to promote him. But I remembered that when Reverend Martin Luther King was active in the civil rights movement, he petitioned the city of Birmingham to do a march. A group of ministers wrote a formal statement to the city asking [officials] not to let him speak even though he was a non-violent movement leader because violence followed him wherever he went. Of course, he marched anyway, was arrested, and then subsequently wrote a letter from a Birmingham jail. I remembered that, and that’s what I said about the two-sidedness. Sometimes we have to think more broadly and [contemplate] policies that will last a lifetime, not just in this moment in which we find ourselves today.

Sesno: Did your position as a regent at this institution, as an African-American woman defending the right of white supremacists to come and speak, surprise people around you?

Diggs: It did. In fact, we decided to have a public session to allow regents to talk about why we felt the way we did, and we did differ. And I didn’t talk about that Reverend Martin Luther King incident. Actually, I didn’t discuss that in my comments, and so almost immediately afterwards, someone tweeted on my Twitter page, “@drshaunadiggs was a white supremacist Nazi sympathizer.”

Sesno: Did you choose to respond?

Diggs: I didn’t respond. I usually don’t respond to things like that. It was surprising to people because [they] are afraid of the content, but I think that many times, this alt-right content allows opportunities for discussion and debate we should have. It allows people to come forth and show their true selves so we can witness it and understand it better. And many times, that may be the catalyst for someone else in the room to formulate his or her opinions and be the leader of tomorrow. Perhaps one of the students in the room will be the person who leads the opposition in years to come.

Sesno: Will, you’ve written the following: “Freedom of expression is vital for the health of our liberal democracy, and our colleges and universities must continue to fulfill their unique role in the marketplace of ideas, even those ideas that some, many, or all of us find repugnant.” Here’s what I’ve been asked as a trustee where we’ve experienced this directly. Are there no limits, is there no line, no distinction between free speech and hate speech, and is hate speech as protected as any other kind of speech?

Creeley: Hate speech is as protected. There is no hate speech exception to the First Amendment.

Sesno: So, there are no safe spaces in free speech?

Creeley: Well, that raises an interesting freedom of association question. I think if you are a private group, you can form a “safe space” of like-minded folks, be it a prayer group, a political group, or an environmentalist club, etc., and you can set rules as to what your group believes. But, no, by and large, the campus, as a whole, should be a safe space for experimentation, a safe space for dialogue, and a safe space for students, figuring out, in dialogue with one another, what they believe, where they actually stand.

But I do want to take your question as an opportunity to explain that while there is no hate speech exception, not all speech is protected by the First Amendment. As a First Amendment lawyer, I get asked all the time, “All right, so we can say anything to anybody at any time?” I say, “No, there are carefully crafted, narrow exceptions to the First Amendment.” And particularly relevant to this discussion, peer-on-peer harassment, if properly defined, is not protected expression. If you are harassing somebody on the basis of a protected class status, you can and should be punished for it. So I think one of the things that FIRE has to do on this point is insist on clarity of definition in your policies to make sure students know that, no, there’s no free-floating hate speech exception, but yes, there are categories to speech that are not protected.

Sesno: Janet, do you have that clarity in your policies on your campuses?

Napolitano: We try to. In fact, our campuses have been reviewing their policies to try to make them clearer. And it’s not just the definitional clarity, but process clarity. So, what are the procedures that a student group needs to have to invite a speaker onto campus?

Sesno: And you’ve had to sharpen that in recent months and years as a result of all of this?

Napolitano: Absolutely.

Sesno: What have you changed? What’s different?

Napolitano: More clarity on the procedure that student organizations need to follow to invite a speaker onto campus, more clarity on what the hours are for speakers on the public spaces on the campuses, how you go about reserving a venue, all of those kinds of things.

Sesno: The same at UVA?

Sullivan: Yes. We’re currently working on a new time, place, and manner policy.* We feel that for people not affiliated with the university, we need to know where they’re going to be for no other reason than we’re expected to protect them. And right now, we don’t have that.

Sesno: Because this room is filled with people who have fiduciary responsibility for their institutions, let’s talk about cost of these sorts of things: how you assess that cost, how much cost you can actually bear, how you respond to [someone] who says, “Look, I’m deep in debt for my kid, and you’re spending hundreds of thousands of dollars to have completely irrelevant people—or people I think are irrelevant—come and speak because you stand for this thing called free speech. But there’s no free education.” And you say?

Napolitano: I think having time, place, and manner rules is something that public and private institutions are entitled to have. And one of the things I think should occur when a student group wants to invite a particularly controversial speaker to campus who we know is going to cause a lot of security expenses is to have a dialogue with that group…and ask them, is this really how you want your student tuition dollars to be expended?

Diggs: I would say that time, place, and manner are not new. So, at the University of Michigan, if the president [of the United States] comes to speak at the university, that’s a wonderful thing and we talk about time, place, and manner because you may need a larger venue [with] extra security costs. So, whether someone is controversial or non-controversial, you still have the same issues and you really shouldn’t be making judgment calls about the content. If you do so for one, you must do so for the other. And I think that having a speaker, incurring the cost, thinking about safety, these are all a part of our academic mission to exemplify to others how to discuss issues and how to relate to content in speakers— and then talk about it in the classroom, talk about it in the street. We use [the situation] as a catalyst for conversation regardless of whether someone is controversial or not.

Sesno: In this notion of cost, one of the things that’s come up is the practical cost of how you can secure a location. At some rural campuses, you’d have to hire the entire state police force to secure the location, so this becomes a very difficult challenge. How do we assess that cost, and what are those who have fiduciary responsibility for an institution to make of it?

Iyer: Yes, that’s an enormous challenge, and I would say rural campuses exemplify that challenge. They kind of epitomize the difficulties inherent in creating security plans. But I think many of our campuses have very permeable boundaries—and deliberately so because we don’t want to be presenting ourselves as a fortress. We want to be open to the community, and that, unfortunately, works against us when we try to craft security plans that essentially operationalize what we’re trying to do.

Sesno: Janet, when you had the issues at Berkeley, where was the security coming from? [It] wasn’t just campus police.

Napolitano: No, we had mutual aid agreements with neighboring police departments and sheriffs’ offices. A security plan is drawn up, led by the chief of campus police or the campus police, but it will involve officers—and overtime expense for officers—from other departments who come to campus.

Sesno: Will, this is a very practical, real consideration when thinking about the human safety and the sanctity of property on these campuses. How do you view that?

Creeley: I think any procedure for dealing with these challenging circumstances has to be arrived at clearly beforehand. I really appreciate Sandhya’s point about a precommitment strategy to get your policies in order before the crisis hits. And this is a discussion that is, as Governor Napolitano points out, in flux in the law. Who ultimately picks up the tab when these folks come to town?

If it was up to me and I had my druthers, I would make it so that the university is not on the hook for these costs. Rather, the state should be. The university—in this instance, I’m thinking public colleges—is a state actor, and it’s fulfilling its legal commitments under the First Amendment.

Sesno: How does private vs. public [institution] change this discussion?

Creeley: I think it changes [the discussion] substantially. Again, public institutions are legally bound by the First Amendment. Private institutions, the vast majority of which promise free expression, do not have that same legal commitment. You should, if you are a student, have the same rights to protest on the quad that you would as a citizen on the steps of city hall, subject to reasonable time, place, and manner restrictions. But how that works in practice is an interesting question.

Sesno: How does Dartmouth see its role as a private institution compared with [a public institution]?

Iyer: From my vantage point as counsel for a private institution, I feel that the boundaries between public institutions [regarding] requirements in the area of free speech and the requirements for private institutions are growing more evanescent by the day. I think that’s because we’re seeing private institutions voluntarily embracing certain notions of free speech and borrowing from the First Amendment. And when we don’t, courts commonly invoke First Amendment principles in interpreting our free speech guarantees. What that all means is that, essentially, constitutional protections are being transmuted into contractual obligations for our campus community members.

Sesno: I want to move on to two things that are related—and such a driver of this. One is the political moment we’re in now, and the other is the jet fuel for the political moment we’re in now, which is social media, and how that accelerates and amplifies everything that’s going out.

Let’s start with the moment. Is it just our perception or is this really different? Are we driving a much more polarized conversation, and is that something that’s become a real consideration on campus?

Sullivan: I’ve been on campuses for a long time now, and it does feel different to me in terms of the degree of the polarization, the number of issues that are polarized, the insistence by people that you take one side or the other and no one can be in the middle.

Sesno: Janet, are you finding the same thing?

Napolitano: Yes, I think so. Social media is a great tool for communication and for bringing people together, but it also is a tool that can be used to identify people in the different groups to which they flee when a controversial issue comes up. It doesn’t really seem to facilitate the kind of productive dialogue that one would hope to see on campuses.

Sesno: Shauna, what are you seeing?

Diggs: I think social media has a huge impact. Students hear immediately that a comment was made, something was said, actions were taken, and then it feeds on itself, even the hearsay part. Sesno: Will, you wrote a piece, “Why Students Need a Guide to Free Speech on Campus More Than Ever,” and you [noted] that you’d recently updated your guide to free speech on campus. You said: “Today’s college students enjoy the ability to speak their mind in unprecedented ways, powered by omnipresent high-speed internet access. Students may sound off at all hours via a sparkling array of online outlets: Twitter, Facebook, Tumblr, Instagram, email, instant messaging, blogs, just to name a few. The ancient among us, by which I mean those who have graduated from college before, say, the year 2002…may not realize the enormity of this change.” What makes it so enormous?

Creeley: When I started at FIRE in 2006, we were beginning to see the first cases of social media speech interactions where a student would say something online. At that point, I think maybe all of us were somewhat naive about the incredible visibility afforded online statements. Students would say something online on what was then described as a popular social network site, Facebook.com, because you had to identify it, and they wouldn’t realize that it could be seen by administrators [and] their teachers. It wasn’t just somebody saying something to a friend who, say, walked by the quad.

Now, not only are students intensely aware of the fact that they are performing an identity at all times, but other students are calling them to task for it. So, I think it’s kind of, as you say, added jet fuel to this balkanization on campus. It allows for immediate purity tests and very little time to think.

Sesno: Let’s turn the conversation to what we, board members, trustees, and others can do 1) to understand what we and you are up against, 2) to ask about and debate as boards, and 3) whether and how to speak out, and what public role to take throughout all of this.

Sullivan: How many of you have a student member on your board? I think your student member is a really valuable asset, and particularly just to spend a little time talking about what her or his experience has been with social media and what kind of impact it has can be tremendous.

Sesno: Shauna, from your experience as a regent, what do you think is the most valuable and important role that you—and we—can be playing in this conversation?

Diggs: As a regent, I believe [the most important role is] asking the right questions— questions such as: What is the security and safety plan? So, the head of our security and safety for the campus spoke with all the partners—city police, state police, etc.—about options, looked at the venues, and then presented the plan and the options so we were well-informed, asking about alternative events.

Sesno: I’d like to ask each of you to [share] a closing thought and leave us with something we can take from this that will be informational—or maybe even inspirational.

Creeley: As a civil liberties lawyer, the challenge facing me is to remind college students that history has a long arc, and the same First Amendment that protected the marches on Birmingham now protects folks with the exact opposite message. I’m sometimes asked to go on campus and speak to a liberal group or a conservative group, and at some point, invariably, [each one starts] looking at me like I’ve got three tongues because I’m saying then the First Amendment defended the rights of the college Republicans, or then the First Amendment defended the rights of professors who had previous associations with communists. At some point, everybody is offended. I think the idea is to instill in students an appreciation for the universality of the First Amendment and ask civil libertarians to work to make sure that everybody understands their rights and knows how to exercise them.

Diggs: In the future, I think we should think about our role of communicating facts. So, in this age of fact or fiction, one of the unique responsibilities we have as research institutions is that we actually can promote facts. When we invite people to have discussions or debates, that’s one arena, but we actually know truth and facts behind some of this, and we should take a more proactive stance of putting factual information out.

Iyer: Institutions can model what it’s like to take colliding principles and try and make sense of them in a respectful way, and I think that’s true in the free speech arena and every other place in our society where principles are coming into collision in some way. There can be processes and structures within institutions that allow people to see universities as role models, as laboratories, to try to help all of us, within the larger society, grapple with these problems.

Napolitano: Clark Kerr, who was kind of the George Washington of the University of California, said that the role of the university is not to be safe for students, but to be safe for ideas. And I think we need to constantly think about what the role of a public university is in modern society. How do we educate the next generation? How do we communicate the values inherent in a democracy based on the rule of law and principles like freedom of speech so that that tradition can continue?

Sullivan: And I would say don’t be afraid. You are stronger in your own beliefs and conclusions for having grappled with the very best ideas of all the opposing sides.

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