Blame Teachers and Professors for Students Not Understanding Free Speech

April 3rd, 2016

In the L.A. Times, Howard Gillman and Erwin Chemerinsky have an important editorial on the state of free speech on college campuses. The duo teach a freshman seminar on the First Amendment, and they explain that most students are never taught why free speech is important to protect. As a result, they say, it shouldn’t be surprising that students demand that professors provide trigger warnings or Deans expel students who say offensive things.

Teaching a freshman seminar on freedom of speech on college campuses has made us aware of the urgent need to educate the current generation of students about the importance of the 1st Amendment. From the beginning of our course, we were surprised by the often unanimous willingness of our students to support efforts to restrict and punish a wide range of expression. Not a single student in the class saw any constitutional problem with requiring professors to give “trigger warnings” before teaching potentially disturbing material.

Surveys across the country confirm that our students are not unique. According to the William F. Buckley Jr. Program at Yale, 72% of students support disciplinary action against “any student or faculty member on campus who uses language that is considered racist, sexist, homophobic or otherwise offensive.” Too few students grasp that one person’s offense can be another’s expression of truth to power.

The authors explain how their students gain a clarity after discussing the history of censorship:

Our students came to realize that there was no way to create a “safe space” on campuses where students could be free from one set of offenses without engaging in massive censorship, and perhaps creating another kind of offense. …

At the beginning of the semester we took a vote in the class: Who would agree that the University of Oklahoma was right to expel students who had led a racist chant in a bus on the way to a fraternity event? All hands were raised. By semester’s end, many, but not all, had changed their minds, and those who still supported the university did so with a much more sophisticated understanding of the balance of issues.

Gillman and Chemerinsky make a powerful argument, but they don’t quite complete it. They are correct that the students don’t deserve all of the blame. They don’t know any better. But why don’t they know any better? The authors stop short of assigning much of the blame where its due–teachers. From Kindergarten through High School, teachers drill students in all manners of political correctness, and impose conformity of thought.All they likely learned about constitutional law is that the founding fathers were slaveholders. Is it any surprise that when these young skulls of mush arrive on college campuses, they have no clue that it may be important to protect ideas that fall outside the generally-prevailing norms?

Whenever I talk about constitutional law with High School students, I always ask them to repeat a few premises. First, “There is no such thing as hate speech.” This term of art has no legal relevance in the United States (as oppose to a hate crime, which involves an actual act). Second, “The First Amendment provides the greatest protection for the most unpopular speech.” Students are totally foreign to this concept. Third, “The First Amendment protects your right to say something offensive to someone else.” And I tell them to promise me that when they get to college, they will remember these lessons, and fight for free speech. They promise me, but who knows if they’ll keep it.

The blame doesn’t stop with primary school teachers. Colleges today, equipped with safe spaces and trigger warnings, offer no meaningful opportunity for students to engage in free speech. (Gillman and Chemrinsky’s class, excepted, it seems). Is it any wonder that when first year law students come to my class, they have no conception of the First Amendment? I give all of my ConLaw students a similar lesson that I give the High School  students, though backed up by fancy words like strict scrutiny and political speech. I sincerely hope my students get it, but who knows.

What scares me the most, as I noted in a post last October, is what will happen when the students in school today grow up to be professors tomorrow. As today’s professoriate–many of whom grew up in the Vietnam-era of protest–phase out, and they are replaced by trigger-warning-happy millenials, the last vestiges on the campuses to protect free speech wither away. I truly fear for this day.

The authors put the stakes clearly:

Rather than mock students or ignore their concerns, we need to make sure they understand the context of the Constitution’s free speech guarantees. At stake is not merely the climate on our campuses, but the longevity of the great social benefits associated with the rise of modern free speech traditions.

Nonetheless, even Gillman and Chemerinsky offer the mildest endorsement of this campus censorship–in two places, they say that “legitimate” speech ought to be protected.

Unpopular speakers are victimized, and legitimate opinion silenced . . . .

Another key lesson was that censoring intolerant or offensive speech can be all but impossible to manage without threatening legitimate debate.

The implication of this premise is that the government gets to decide what is “illegitimate,” and thus not worthy of protection