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Constitutional Law Scholars: ‘Educate,’ ‘Don’t Mock’ Students About the First Amendment

By April 4, 2016

From the controversy surrounding “Trump 2016” chalkings at Emory University to Wesleyan University’s student newspaper losing funding for publishing a contentious op-ed, college students regularly face backlash for exercising their free speech rights. What’s more dangerous to the future of open dialogue on campus is that these examples of censorship come at the hands of their classmates—not the university administration.

As this trend of student-on-student silencing has emerged, Erwin Chemerinsky, a constitutional law scholar and dean of the University of California, Irvine School of Law, has written extensively about the importance of free speech on America’s college campuses.

Last week, Chemerinsky joined Howard Gillman, chancellor and professor of law, political science, and history at UC Irvine, to pen an op-ed in the Los Angeles Times titled, “Don’t mock or ignore students’ lack of support of free speech. Teach them.” (A longer variation ran in The Chronicle of Higher Education yesterday.) The scholars discuss the lessons they’ve learned from teaching a freshman seminar about freedom of speech on college campuses.

Most importantly, Chemerinsky and Gillman highlight what they find to be an “urgent need to educate the current generation of students about the importance of the 1st Amendment.” They write:

Young people’s support for freedom of speech has waned in part because of their admirable desire to create an educational environment where all can thrive. Our students or their friends have experienced the psychological harms of hateful speech or bullying more than they have experienced the social harms of censorship or the punishment of dissent.

While creating an educational environment for all to thrive is an admirable goal, the authors write about how history teaches that freedom of speech must play a role in that environment. They continue:

Over the course of U.S. history, officials censored or punished those whose speech they disliked: abolitionists, labor activists, religious minorities, communists and socialists, cultural critics, gays and lesbians, demonstrators and protesters of all stripes.

The students were surprised to learn that people went to prison for speech criticizing the draft during World War I, or for teaching or espousing communism during the 1920s and 1930s and in the McCarthy era.

Rather than simply telling the students to “toughen up,” Chemerinsky and Gillman espoused a positive message that advocates for more education and understanding of the types of speech the First Amendment does and doesn’t protect:

Of course, freedom of speech is not absolute. Incitement of illegal activity, defamation, true threats and harassment are not protected by the 1st Amendment. Learning what kinds of expression can be constitutionally punished gives students a realistic sense of how speech can be regulated on public university campuses.

The strategy worked. The scholars described how, throughout the semester, their students came to realize that popular demands like “safe spaces” and “trigger warnings” are really tools for what they describe as “massive censorship.”

FIRE is proud to assist students in their exercise of free speech, but an important lesson emerges for all First Amendment advocates in Chemerinsky and Gillman’s article. Rather than mock students who fail to support free speech, we need to take time to ensure they understand the context of the First Amendment’s protections. Learning the history of censorship in America, through accounts like Jonathan Rauch’s Kindly Inquisitors or Geoffrey Stone’s Perilous Times, is a great place to begin this endeavor. As the old adage goes, “Those who do not learn history are doomed to repeat it.” This warning is especially true in the context of free speech.

You can read Chemerinsky and Gillman’s full piece on the Los Angeles Times’ website.