Lauren E. Tanner’s arguments in “Rights and Regulations: Academic Freedom and a University’s Right to Regulate the Student Press” (see Azhar’s introduction yesterday) are insidious for many reasons.
Tanner’s first argument, right off the top, is that the First Amendment exists primarily to create “a marketplace of ideas.” No, with respect to speech, it exists because the marketplace of ideas functions well enough on its own until the state tries to regulate it. The First Amendment does not create the marketplace; it protects the marketplace from state regulation.
Likewise, Tanner argues that a university has a positive duty to create a “marketplace of ideas” and that it should therefore regulate campus publications in order to enforce its own vision of that marketplace. Tanner argues that a university may regulate the student press as a matter of “institutional academic freedom” as it attempts “to shape and cultivate a unique marketplace of ideas to stimulate learning.” But such shaping and cultivating are very easily manipulated in ways that chill rather than promote an atmosphere where students feel free to express themselves in print. The marketplace of ideas functions best when it’s left alone.
For examples of how Tanner’s principles easily lead to oppression, one need look no farther than Tanner’s article itself. But first I must register three more sinister elements of Tanner’s argument. For one, Tanner argues:
More often than not, student publications are categorized as limited public forums, which imposes a strict standard of review that places an excessive burden on the university’s ability to regulate its marketplace. Such a high standard of review strikes down regulations implemented to shape and cultivate a marketplace of ideas to promote education, without considering the special role a university plays and the privileges it enjoys. Unfortunately, this failure is detrimental to the entire university community.
That is, Tanner does not want the student press to enjoy the privileges that would be afforded to it as a limited public forum. To Tanner’s credit, the argument stops short of promoting a view of student publications as nonpublic forums (such that colleges could impose just about any restriction). Tanner wants something in between. But I fail to see how speech restrictions aimed at cultivating a marketplace of ideas are any different in kind from speech restrictions under a limited public forum standard. In either case, the regulations would face the burden of scrutiny regarding whether the regulations are properly tailored to accomplish the stated purpose. The only differences here are, one, that Tanner wants to justify looser scrutiny for speech restrictions—which would give the university new control over the student press in order to create the kind of community it wants (some would call such control propaganda or totalitarianism), and two, that Tanner wants to justify regulations that would include compelled speech such as requiring student publications to yield column inches to any voice the university deems underrepresented.
A second sinister element of Tanner’s argument is that Tanner presumes to distill the multiple functions of a university down to the goal of educating in a “marketplace of ideas” environment. Regulations that relate to this end would be permissible, but regulations that relate to the other legitimate ends and functions of a university are conspicuous by their absence from Tanner’s article. Tanner prioritizes the cultivation of a certain environment over other values and ends, despite the fact that the aims of a university education are deeply disputed even within a single campus. I like some of Tanner’s aims but not others, but why should Tanner’s or my views be made the basis of regulations of the press?
A third sinister element of Tanner’s argument is that in the name of “education” in a “marketplace of ideas,” a university would equally be justified in regulating every student organization that engages in expressive activity. In the name of “institutional academic freedom,” Tanner argues, the university has the “freedom” to manipulate the entire educational environment to produce the learning that it wants. Why stop at the student press—why not regulate the residence halls, too? Students learn things everywhere, and the university needs to be involved! Wait, that’s the University of Delaware living-learning curricular model.
Now for the insidious details. Tanner gives five examples of how the principles of regulation would play out. These examples show how easily a university could manipulate the principles to engage in oppression of the student press. (I should add that the same dangers exist at the “limited public forum” level, despite the higher degree of scrutiny.) I treat each one in turn.
1. Tanner would not permit regulations against poor writing. That is because people with poor writing skills, Tanner argues, would thus be excluded from writing for campus publications. That is, Tanner prioritizes a maximum-voices principle over a quality-of-expression principle. Why shouldn’t each campus publication make this decision for itself? In addition, does this mean a C- student could sue for a place on the student newspaper—and then argue that the editors may not edit the grammar in any articles on the ground of impermissible regulation of the student’s “voice”? Tanner suggests that the answer is yes.
2. Tanner would not permit regulations against criticizing the university administration. OK with me. But Tanner takes away with one hand what is given in the other. Tanner notes that if a university could successfully argue that banning certain criticism would contribute to its “marketplace of ideas” goal, the restriction would be OK!
3. Tanner would permit strong regulations against criticizing others. Tanner explicitly wants to expand restrictions on the press beyond libel. A university could force student publications to publish only material that was based on “demonstrable fact” out of a fear of an avalanche of “inaccurate information” and a desire to protect the university’s “reputational interests.” The educational argument here is that one must learn to be responsible in reporting. Sure, that one will never be abused, certainly not when the university has a different idea of the facts in any particular matter. And what does the “reputational interest” of a school have to do with the marketplace of ideas? For Tanner, false criticism leads to a loss of confidence in the administration, which would “threaten” the “campus order.” That’s just what Mussolini might say (meanwhile, true criticism of the administration could have the same or even stronger such effects).
4. Tanner would permit regulations against “hate speech” on the ground that the alleged targets of such language would be less likely to voice their own views. As Azhar mentioned, this is problematic, not least because “proscribing hate speech is simply inimical to the First Amendment and to the values of free speech in a modern free society.” If we really want college students to learn about democracy, free speech, and how the choices made by adults matter in society, student publications should have exactly the same rights, risks, and responsibilities that any other free press has in America. In contrast, Tanner’s high principle is that “In order to fulfill its educational role, a university must be capable of enforcing a certain level of dignity and respect among participating actors.” I certainly do not want an administrator with Tanner’s level of respect for individual rights to be the one enforcing dignity on campus.
5. Tanner supports regulations that would require that everybody be allowed to publish in every student publication, with inclusiveness trumping quality. Wait, that just about makes them public forums, right? There is hardly a scarcity problem on campus when it comes to expressive activity, as Tanner contends. It makes far more sense for the marketplace of ideas to mean letting any number of student publications do whatever they want, so that the consumer—not the government or its universities—can decide what’s worth reading and what’s not, whose voices to pay attention to and whose voices to ignore.
In short, I think that Tanner’s line of reasoning leads to an environment exactly the opposite of what universities should be promoting—with unintended consequences and lessons that perhaps even Tanner would disavow.