Tuesday, February 23, 2016

Yale Really Does Protect Free Expression (For Now)

A recent essay in the Economist magazine addresses efforts to curb free speech on college campuses around the country.  According to the piece, students at 72 colleges have demanded that universities curtail free expression in one way or another.  The essay also notes that the University of Chicago has rejected such efforts and reaffirmed its commitment to "free, robust, and uninhibited debate and deliberation among all members of the University’s community."

Fortunately Chicago is not standing alone.  As the Economist reports, the Chicago statement has inspired similar or identical statements by a growing number of institutions, including Princeton, the University of Wisconsin, Purdue University, American University, Chapman University, Winston-Salem State and Johns Hopkins. (Click on each respective institution in the previous sentence for a link to the relevant policy statement.)  Like Chicago, some of these institutions are private and thus not subject to the First Amendment.  Nonetheless, each believes that protection for Freedom of Expression is essential if a University is to play its fundamental role of facilitating the search for truth.

The Economist also notes that support for the Chicago position is "not universal."    In particular, the Economist cites Yale University as an example of a university that has purportedly declined to embrace the Chicago approach.  The essay concedes that a 1974 report of a Yale committee --- the famous Woodward Report --- extols the "right to think the unthinkable" and "discuss the unmentionable."  Still the essay notes that one member of the Committee that prepared the report dissented and that a minority of those surveyed at the time expressed skepticism about whether certain forms of free expression should be tolerated.  The essay also claims that the report, "when read in full . . . is confused."

Closer inspection, however, reveals that the Economist's characterization of Yale's official position on Freedom of Expression is unwarranted.  Instead, Yale's policies, contained in the Woodward Report, are for all intents and purposes identical to those contained in the Chicago statement.  For instance, the Woodward Report, which begins with a quote from Milton's Areopagitica, provides that:

“The history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.” (emphases added here and below)

The Report also recognizes that Freedom of Expression supersedes other important values, including harmony, civility and mutual respect.  Thus the Report provides as follows:

Without sacrificing its central purpose, [the University] cannot make its primary and dominant value the fostering of friendship, solidarity, harmony, civility, or mutual respectTo be sure, these are important values; other institutions may properly assign them the highest, and not merely a subordinate priority; and a good university will seek and may in some significant measure attain these ends.  But it will never let these values, important as they are, override its central purpose.  We value freedom of expression precisely because it provides a forum for the new, the provocative, the disturbing, and the unorthodox.” 

The report also makes it clear that each individual who voluntarily enters the Yale community thereby takes on the obligation of protecting Freedom of Expression, “above all.”

"By voluntarily taking up membership in a university and thereby asserting a claim to its rights and privileges, members also acknowledge the existence of certain obligations upon themselves and their fellows.  Above all, every member of the university has an obligation to permit free expression in the university.  No member has a right to prevent such expression.”

The Report recognizes that there are "slurs or epithets" that "no member of the community with a decent respect for others should use" and that individual members of the community have "ethical responsibilities" to refrain from certain forms of expression.  This language, while certainly correct, may well be the source of the "confusion" the Economist alleges.  However, this language does not ambiguate or detract from the Report's endorsement of unfettered free expression.  Instead, after noting these "ethical obligations," the Report expressly "reject[s]" the "argument that behavior which violates these social and ethical considerations should be made subject to formal sanctions" as well as "the argument that such behavior entitles others to prevent speech they might regard as offensive." Allowing such institutional or private censorship, the Report says, would contradict the "conviction that the central purpose of the university is to foster the free access of knowledge."  As a result, the report concludes "even when some members of the university community fail to meet their social and ethical responsibilities, the paramount obligation of the university is to protect their right to free expression. This obligation can and should be enforced by appropriate formal sanctions."  Such "secondary social and ethical responsibilities," the Report concludes, "must be left to the informal processes of suasion, example and argument."  

In sum, the Woodward Report, issued more than four decades ago, is a classic articulation of the virtues of Free Expression in the University context and an unqualified rejection of calls to censor speech, even speech that is offensive.  Like Justice Louis Brandeisthe Report recognizes that the expression of noxious ideas that all good people will reject out of hand is a possible but unfortunate byproduct of robust protection for free expression.  Presumably the authors of the Report also believed that members of the community have an ethical obligation to denounce and condemn such speech. 

To be sure, support for Free Expression was not unanimous at the time within the Yale Community. One member of the twelve person committee that drafted the Woodward Report dissented, and numerous members of  Yale community apparently disagreed with portions of the Report.  But then the main student newspaper at the University of Chicago objected to the Chicago statement. Such dissent, itself an example of Free Expression, does not undermine the clarity of Yale's or Chicago's commitment.  Perhaps more to the point, Yale has codified the Woodward Report in its "Undergraduate Regulations." (See here, pp. 47-49).  The same regulations prohibit faculty, staff or students from interfering with the "orderly conduct" of a lecture, meeting, or "other public event."  (See id. at 49).

It thus appears that the Economist has inadvertently misinterpreted Yale's policies on Free Expression.  Instead of diverging from Chicago's recent statement, the Woodward Report presaged it. Indeed, Yale is not alone in anticipating Chicago's statement.  A little more investigation reveals that, while not "universal," support for Freedom of Expression within American Higher Education is perhaps broader than many suppose.  Here in Virginia, for instance, three universities  --- George Mason, William and Mary, and the University of Virginia --- have received the very highest rating for protection for Free Expression from the Foundation for Individual Rights in Education, a non-profit organization that “defends and sustain individual rights at America’s colleges and universities”  Many other major universities have also received FIRE's very highest rating, including UNC Chapel-Hill, Arizona State University, Carnegie Mellon, the University of Florida, the University of Pennsylvania and the University of Utah,  (See here for a full list of schools that have received FIRE's highest rating.)  

Of course, formal policies do not always suffice to protect Freedom of Expression or other liberties. Even the 1977 Soviet Constitution --- 177 articles long --- included protections for "freedom of speech, of the press, and of assembly" (Article 50) as well as "freedom of conscience" and the right "to profess or not profess any religion, and to conduct religious worship or atheistic propaganda."   (Article 52)  As Judge Learned Hand famously explained, in a 1944 speech to over a million citizens: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it."  In the same way, no university policy, no matter how eloquent or widely embraced when adopted, can ensure continued robust protection for Free Expression, unless there is sufficient support for this value within the relevant community.  Those who hope to preserve Free Expression in America's colleges and universities must do more than invoke standing policies authored generations ago.  They must, in addition, continually affirm and defend the paramount value of freedom of expression.  In this spirit, universities may wish to sponsor programs or workshops for incoming students explaining the origin and rationale for robust protection of freedom of speech on campus as well as any alternative perspectives on the matter.