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Calls to Restrict Expression Among Student Demands to Fight Campus Racism

By November 24, 2015

In response to high-profile protests over allegations of racism at schools like Yale University and the University of Missouri in recent weeks, student activists at more than 40 colleges and universities across the country have articulated lists of demands for campus administrators, insisting their schools rectify inequities that protesters say marginalize minority students.

At FIRE, the support and defense of students who speak their minds is at the very core of our mission. However, some of the demands made by students in recent days and weeks, if accepted, would restrict the ability of others on campus to do exactly that. To be clear, students have the right to call for repressive, unconstitutional measures. But colleges should not, and must not, give into these calls.

Among the enumerated items on lists of demands popping up at dozens of schools—at institutions like the University of Wyoming, San Francisco State University, and Amherst College—demands that college authorities take steps to dissuade or even sanction community members who express disagreement with the protesters are worryingly common.

Particularly concerning are calls for speech codes demanding punishment of constitutionally protected “hate speech,” mandatory trainings requiring students to voice agreement with certain ideologies (compelled speech), and rules about what faculty cannot, or must, teach.

While students have the right to ask for mandatory education programs on racial issues, those who create and administer those programs must do so in ways that do not require students or faculty to express themselves in approved ways on pain of punishment. Yet the demands are not always compatible with this principle. For example, students at the University of California, Los Angeles and Boston’s Simmons College demanded that administrators provide “repercussions” for microaggressions.

But microaggressions, by their nature, are nearly always examples of constitutionally protected expression. Rules against this kind of expression, therefore, are virtually certain to infringe upon freedom of speech.

At Johns Hopkins University, activists have asked for mandatory diversity training and “impactful repercussions” for those who make black students “uncomfortable.” While Johns Hopkins is a private institution, it bills itself as “a forum for the free expression of ideas.” With no objective definitions to determine when that discomfort rises to an actionable level, such a policy could and very likely would be readily abused and chill expression of unpopular ideas. Any comment that subjectively upsets another student, however innocuous, could be grounds for punishment.

Many of the student protesters would also ban “hate speech.” For example, at Missouri State University, students have demanded “[a] commitment to differentiating ‘hate speech’ from ‘freedom of speech,’” even though “hate speech” has no legal definition in the United States and the vast majority of expression that people label as “hate speech” is constitutionally protected. And it is protected for good reason: There is no broad agreement on what constitutes hate speech as opposed to vehement criticism. Further, whatever one’s definition, banning hateful speech does not make it go away, but rather empowers it and allows it to fester. Under hate speech regulations, the underlying problems that cause it to exist, and the kinds of debate that might allow those problems to be effectively vetted and addressed, are simply shoved out of sight rather than resolved.

As a reminder, at public colleges and universities, free expression is the law. The Supreme Court has ruled that speech protected by the First Amendment includes much expression that makes people uncomfortable. In Terminiello v. Chicago, 337 U.S. 1, 4 (1949), the Court made clear that protecting speech that makes people uncomfortable is precisely the point of the First Amendment:

Speech is often provocative and challenging. It may … have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. There is no room under our Constitution for a more restrictive view.

FIRE is a free speech advocacy organization, and we believe in the power and necessity of robust free expression protections on campus. So while we fight for the right of these students to insist upon change, we are critical of demands for illiberal policy reforms that silence dissenting, unpopular, or controversial views. The answer to speech with which one disagrees is more speech, not censorship.