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Supreme Court of the United States

A Report from FIRE's Campus Freedom Network Conference

October 17, 2017

Last week, I had the great pleasure of attending a conference sponsored by the Foundation for Individual Rights in Education's Campus Freedom Network.  Along with Greg Lukianoff (FIRE's President), Adam Kissel (the Director of FIRE's Individual Rights Defense Program), and Professor Daphne Patai (a member of FIRE's board of directors), I participated in a panel discussion entitled, "The Philosophical and Practical Underpinnings of Academic Liberty."

Adam Kissel laid the foundation by, among other things, describing J.S. Mill's arguments for free speech in On Liberty.  Mill argued that speech should not be censored, because the speech might be true -- or at least partly true.  He also asserted that even if speech is erroneous it should be permitted, for exposure to challenges bolsters the truth and makes a belief in such truth more justifiable.  Mill's arguments are essentially utilitarian:  free expression has good consequences, and censorship has bad consequences.

Mill conceded that there are some circumstances in which speech can be ethically restricted, i.e., those in which the speech would harm others.  However, it is reasonably clear that Mill had a relatively narrow conception of the harms that would justify censorship.  Mere offense was plainly insufficient.

In my prepared remarks, I observed that utilitarian rationales are not the only ethical arguments for free speech -- one can make "deontological" claims as well.  People are entitled to speak and people are entitled to receive information, whether or not the effects of the expression are desirable.  These entitlements can be called "rights," and thinkers differ on where these rights come from.  I believe that people are endowed by their Creator with certain inalienable rights, including the right to liberty -- which includes the right to free speech.  To be sure, many today reject the claim that rights come from God, but this conception of rights animated the thinking of the Framers.

I then observed that more modern philosophers have proposed different tests for assessing whether restrictions on speech are justified.  In the 1970s, Joel Feinberg proposed an "Offense Principle" that would supplement Mill's "Harm Principle."  As one might imagine, the category of "offensive" speech is broader than the category of "harmful" speech.  Yet Feinberg did not propose that all speech causing "offense" could legitimately be regulated.  Instead, he urged consideration of a multitude of factors, including the extent of the offense, its duration, the social value of the speech, the ease of avoiding the offensive speech, the motive of the speaker, the number of people offended, the intensity of the offense, and the general interest of the community at large.

Another argument, often used to justify bans on so-called "hate speech," is that it is inconsistent with and damaging to the underlying values of a liberal democracy to brand some citizens as inferior on the grounds of immutable characteristics.    Finally, I observed that one might argue that speech should be restricted to protect not his or her listeners, but the speaker himself or herself; this is paternalism, and is generally thought to be a very weak rationale for restricting speech.

I then discussed how the various rationales for restricting expression turned up in the majority and concurring opinions in Christian Legal Society v. Martinez.  The justifications in Justice Kennedy's concurring opinion are almost entirely paternalistic.  He wrote, "A vibrant dialogue is not possible if students wall themselves off from opposing points of view."  In other words, CLS shouldn't have a statement of faith requirement because it hurts the Christian members of CLS.  Justice Stevens (in his concurring opinion) and Justice Ginsburg (writing for the majority) also rely upon paternalism, arguing that Hastings was justified in impairing CLS's ability to formulate and articulate its message because it (Hastings) wanted CLS members to be more "tolerant," more "understanding," and more "respectful."

Justices Stevens and Ginsburg also invoked rationales that are consistent with Mill's Harm Principle.  Justice Stevens wrote that Hastings' written Policy on Nondiscrimination protected third party students from "invidious discrimination," and Justice Ginsburg said that the "all comers" policy protected the (alleged) "right" of all students to serve as leaders of CLS.  Justice Ginsburg also relied upon the "Offense Principle," asserting that it would be offensive to force students who are unable to serve as leaders or voting members of CLS to financially support CLS through the payment of student activity fees.

It bears noting that Justice Ginsburg invoked a rationale that, as I understand things, rarely is invoked to justify government restriction on free expression:  the government's own desire to "send a message" that it condemns the speaker's expression.

Many kudos to Greg Lukianoff, Luke Sheahan, and the entire FIRE staff for convening and hosting an excellent conference.

Alliance Defending Freedom

Alliance Defending Freedom

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Alliance Defending Freedom advocates for your right to freely live out your faith

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