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Chemerinsky: First Amendment Must Be University of California’s Policy

Since University of California (UC) President Janet Napolitano announced in May that UC’s Board of Regents was voting on adopting new policies to combat intolerance on campus, the recommendations for these policies have gone from bad to worse. The Regents at one point considered adopting the State Department definition of anti-Semitism, which would have posed a threat to students’ ability to criticize Israel despite the protected nature of such commentary. Earlier this month, UC’s Office of the President proposed a vague and speech-chilling policy to address intolerance on campus.

The Regents nixed those proposals last week in the face of growing criticism from free speech advocates and members of the community who were frustrated by UC’s inaction. Now, they’ve promised to address everyone’s concerns by commissioning a task force of university stakeholders to write a policy acknowledging both the university’s commitments to free speech and its students’ demands for a strong statement against hatred and intolerance. But as UC Irvine School of Law Dean and esteemed constitutional law scholar Erwin Chemerinsky noted in an op-ed for the Los Angeles Times last Friday, “the chance of a breakthrough is low.”

Here’s why.

Chemerinsky brings attention to the obvious flaws in the policies that have been recommended thus far: The policies that meet many students’ demands pose serious threats to free speech rights. Less heavy-handed approaches disappoint students who want a strong response—and trouble civil libertarians who fear that policies that don’t promise punishment but still label certain ideas as unacceptable will chill and silence debate. Chemerinsky writes:

Under the 1st Amendment, there is no such thing as a false idea and all viewpoints may be expressed. The 1st Amendment even protects the right to deny the Holocaust or advocate the subjugation of a supposedly inferior group. There unquestionably is a 1st Amendment right to argue against (or for) the existence of Israel or to contend that it should meet (or not have to meet) higher standards of human rights than other nations.

These difficulties have led some campuses to take a softer approach: adopting community speech guidelines or principles, while pledging not to punish those who violate those principles. Campus administrators can feel that they are taking positive actions without fearing constitutional challenges. Also, they can remind students that just because there is a 1st Amendment right to say something, that doesn’t mean it should be said.

But such middleground policies always seem to leave everyone dissatisfied. Those who want to prevent hate speech see them as toothless or ineffectual because they cannot be enforced. Those who are most concerned about protecting freedom of expression on campus still worry that they will chill speech and inhibit discussion.

Chemerinsky’s solution? Look to the best free speech guide we have: the First Amendment.

My advice would be to draft a policy that focuses on reaffirming the importance of free expression while defining what is not constitutionally protected. There is no 1st Amendment right to threaten or harass another person or to deface someone else's property.

The policy should not seek to inhibit or limit protected speech, no matter how offensive it might be. The policy should seek to define, with as much precision as possible, what types of speech and conduct cross the line and are impermissible.

Unlike the policies that have been suggested so far, one that delineates protected speech would make clear to students what is and is not acceptable on campus, while reassuring civil liberties advocates that important First Amendment rights will not be encroached upon or chilled by a vaguely worded policy.

Lastly, Chemerinsky points out that while universities cannot silence speech they deem to be offensive, they are welcome to join others in speaking out against it. Because, as Chemerinsky reminds us, “the best remedy for the speech we dislike is more speech.”

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