Freedom of Speech in the University

Imagine that you visit the doctor’s office, and your physician gives you some bad advice: they tell you that you do not have cancer and therefore should not pursue any course of treatment. But later you find out that you actually do have cancer. You decide to sue your doctor for malpractice. In theory, you are suing your doctor for something they said, for advice they did or did not give you. And when the case goes to court, your physician will not be protected under the First Amendment.Robert Post, Dean and Sol & Lillian Goldman Professor of Law at Yale Law School, described this scenario to an audience of students and faculty members in the Joukowsky Forum on Monday evening. He used it in his lecture, “Freedom of Speech in the University," to illustrate one of his main points. “In our culture, freedom of speech is actually the exception; it’s not the rule,” he explained. The First Amendment does not, and should not, protect you in most American contexts. Look at the workplace. There, your speech is a part of your behavior; some things are appropriate to utter and others are not. Or consider a legal practice. If we could not regulate the speech of lawyers then we could not regulate what lawyers do—for their actions depend on speech—and in turn we could not hold them accountable for legal malpractice. And Post proposed one more place where First Amendment rules do not apply: the university.What is "freedom of speech" and where does it apply?If the First Amendment does not hold in such a large number of spaces, then why does it matter? The exception to the rule, the place where freedom of speech does apply, is the sphere of public discourse, where it serves the function of “democratic legitimation.” It is intended to give Americans an equal political voice and to affirm that they live in a democracy even if an election does not go their way. The practice of democracy, Post argued, is not based on the concept that all people are truly equal, but that their voices are equal. Freedom of speech is intended to beget political equality, giving voters a sense that they do indeed live in a democracy. Note that Post focused on theorizing the First Amendment, and not on denoting who actually holds power in a democracy.According to Post, three main rules define “freedom of speech” in the political sphere:

1. There cannot be content discrimination. That is, the state cannot tell someone they can only talk about one subject and not another.
2. “There are no true or false opinions for purposes of the First Amendment.”
3. The state cannot force anyone to speak.

Freedom of expression at the university levelPost explained that treatises and statements about academic freedom and freedom of expression at the university often invoke rhetoric relating to the First Amendment. In Yale’s Woodward Report, which lays out the university’s freedom of speech policy, there is a quote from Supreme Court Justice Oliver Wendell Holmes. In United States v. Schwimmer (1928) he explained that “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate."Post argued that at the university level, invocations such as these are mistaken and misplaced. To support his point, Post turned to the goals of the university, which are not to legitimate democracy. He gave two main purposes common to most universities: research and teaching. In order to further these goals, speech must be regulated to a certain degree. Post proposed that universities use research to create “expert knowledge.” Within the university there are disciplines, which apply certain protocols necessary to the creation of knowledge. If a lab conducts a study on the correlation between smoking and cancer risks, it must meet certain standards within the public health discipline. There can be dissent—and indeed, dissent is necessary to the production of knowledge. But here's the catch: dissent must be intelligible to its discipline. Basically, the dissenter must demonstrate a certain level of competency or expertise. Ultimately, Post maintained that the three main rules which make up freedom of speech cannot apply to university research. Take the rule which says there can be no false ideas. “If there’s no such thing as a false idea there can be no such thing as a true idea, and if there’s no such thing as a true idea there’s no such thing as knowledge,” Post explained. As a consequence, academic freedom is very different from freedom of expression as it exists in the political sphere.Post went on to emphasize that the university classroom would not function if the rules of the First Amendment were mandated. Speech must be regulated in a classroom setting. Post asked the audience to picture a classroom where students could call each other names, in a way we have seen Trump do throughout this election cycle. Would this deregulated speech make the class more educational? No. Instead, this name-calling would hinder the class’s goals. Moreover, the university breaks the “false ideas” rule through grading systems. Grades are based on the assumption that there are right answers and wrong answers, and they are an essential part of a university education.What causes controversy?Post ended his talk by adding a complication to his theory of freedom of expression at the university. At the university level, most controversies concerning free speech occur when the university’s goals are unclear. It is therefore necessary to evaluate the university’s goals with respect to guest speakers and honorary degree holders (often a source of controversy on campus). Only then can the university determine which speech rules will best further those aims.This point is arguably the most relevant to current debates at Brown involving free speech, and Post elaborated during the Q&A session following his talk. He said that the university might decide to outline a new goal of “democratic education,” AKA  “how to learn to live with people you don’t agree with.” Upon conclusion, Post gave the audience even more to mull over. “I think what the Internet has done is make everybody their own expert,” he explained. And when "we have no respect for expertise, we are in for very bad times."Images via and via.