Greg Baylor on the CFN Conference ‘Philosophy’ Panel

By July 22, 2010

On Tuesday, I wrote a summary of what students experienced at the Third Annual Campus Freedom Network Conference. The same day, Greg Baylor, Senior Counsel for the Alliance Defense Fund, posted an excellent recounting of the “Philosophical and Practical Underpinnings of Academic Liberty” panel at the conference.

He begins by noting Adam’s explanation of the utilitarian case for free speech drawn from John Stuart Mill’s work, then describes the “deontological” claim for free speech—that people have an inherent right to speak and listen even if the speech does not necessarily have any positive effect. This view is expressed in the Declaration of Independence, for instance, as “inalienable” or “unalienable” rights. Baylor additionally notes writers who have tried to add free speech exceptions by expanding Mill’s “harm principle” to include “offensive speech” or “hate speech.” Among these he names paternalism, whereby the censors deem certain speech or viewpoints damaging to the very people thinking or expressing them; a paternalistic censor acts to protect the speakers from themselves.

Baylor uses these theories to explain some of the reasoning in the Supreme Court’s ruling in Christian Legal Society v. Martinez. Justices Ginsburg and Stevens, he says, appealed to an expanded “harm principle,” and Justice Kennedy appealed to paternalism, writing, “A vibrant dialogue is not possible if students wall themselves off from opposing points of view.” In other words, Kennedy argued that forcing students to abandon their group’s mission and allow dissenting voices is good for them.

It also is worth paying special attention to Baylor’s final point:

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.

Please read the whole post in full for Baylor’s concise analysis of the philosophical errors he finds in the CLS v. Martinez decision. We thank Baylor for his participation, incisive analysis, and kind words for FIRE’s conference.

Schools: University of California Cases: University of California Hastings College of the Law: Denial of Recognition to Christian Law School Group