Campus Free Speech Can’t Survive Cultural Change
When it comes to protecting free speech, the First Amendment is necessary, but not sufficient.
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Earlier this week The New York Times published an extended op-ed by University of Virginia senior Emma Camp. It was a good piece. She told a story that I’ve heard off and on for more than 30 years—a young student arrived on campus hoping to find an atmosphere of civil, open debate, but instead she encountered an atmosphere of anger and fear. Here’s a key paragraph:
My college experience has been defined by strict ideological conformity. Students of all political persuasions hold back—in class discussions, in friendly conversations, on social media—from saying what we really think. Even as a liberal who has attended abortion rights demonstrations and written about standing up to racism, I sometimes feel afraid to fully speak my mind.
Yes, her experience is anecdotal, but she notes that she’s not alone in her perceptions:
According to a 2021 survey administered by College Pulse of over 37,000 students at 159 colleges, 80 percent of students self-censor at least some of the time. Forty-eight percent of undergraduate students described themselves as “somewhat uncomfortable” or “very uncomfortable” with expressing their views on a controversial topic in the classroom. At U.Va., 57 percent of those surveyed feel that way.
I speak at colleges across the country. I litigated campus First Amendment cases for two decades. I know Camp is describing something very real—at many different campuses and in many different departments, students live in fear of social shaming and intimidation even if they speak in good faith and with an open mind on matters of profound controversy.
To be clear, Camp was mainly taking aim at a cultural problem, not a legal problem. She described professors’ and students’ critical reactions to their peers’ speech, not any punitive action by the school itself. In other words, the school wasn’t censoring her or any of her fellow students. They were choosing to self-censor, because they feared the social (and perhaps professional) ramifications of speaking their mind.
A number of critics seized on the fact that she was complaining about mere social disapproval to claim that the op-ed was frivolous, or perhaps even “silliness.” I disagree. A nation that values free speech should protect both the law and the culture of free speech. What does that mean on campus and in the wider world?
First, having experienced both state action against free speech—such as a local zoning board ordering the end of youth worship services on our church property—and peer shaming, including shout-downs in class during law school, I know that state censorship is much worse.
The state’s punitive power is vastly greater than the punitive power of even the largest corporations. Facebook can merely delete my page if I refuse to follow its rules. The state can ultimately fine and even imprison me if I persist in defying its edicts. A corporation can take my job. The state can take my liberty.
In fact, the very day that Camp published her essay, the Foundation for Individual Rights in Education (full disclosure: I’m a former president of FIRE, and Camp is a former FIRE intern) published a report noting that a bill is progressing through the Florida state legislature that would impose unconstitutional restrictions on classroom discussions of race and sex in Florida public universities.
As FIRE notes, similar bills have been introduced in nine other states as well. They’re generally advanced by Republican legislators who are seeking to suppress instruction of concepts purportedly related to critical race theory in public education. While legislators have wide latitude to regulate the speech and curriculum of public K–12 teachers, the Supreme Court has made it abundantly clear that the First Amendment extends broad protections in public universities.
Indeed, in a 1957 case called Sweezy v. New Hampshire, the Supreme Court declared the importance of free speech on campus in dramatic language: “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die."
But the priority of fending off legal threats to free speech does not mean that we should neglect the culture. Over time, the law tends to flow from the culture, and so a culture that despises free inquiry won’t long protect the First Amendment. In fact, profound cultural shifts on the right are the roots of the proposed speech codes described above. A movement that was once focused more on preserving individual liberty has shifted to maximizing state power to defeat its ideological enemies.
Private citizens, private universities, and private corporations have a legal right to use their voices to shame, intimidate, or boycott their fellow citizens. They can use their free-speech rights to try to silence their opponents. But each time they do so, they chip away at our nation’s cultural respect for free and open debate.
To be sure, there are bad faith voices who should be shamed. There should be limits to our personal tolerance. But that’s a judgment that must be made sparingly, reserved only for the truly hateful extremists or the truly malicious liars. The default posture should be one of openness, tolerance, and curiosity.
That last trait is particularly important on campus. It’s extraordinarily disappointing to see students so often lead online mobs. The sad irony is that their incredible certainty (and ferocity) surrounding difficult and complex debates—over everything from sex and gender to race and identity to war and peace—is often inversely proportional to their knowledge about those same subjects.
None of that means that students should keep their thoughts to themselves. Many students have personal experiences that are directly relevant in matters like race and gender. Moreover, testing your ideas in meaningful debate is a powerful learning tool. But curiosity and humility go a long way toward tempering our worst instincts.
The formula for free speech on campus is simple to state, but difficult to execute. Always defend students and professors against unlawful state censorship. Use your voice to debate and discuss, not to dominate or intimidate. Be slow to take offense and quick to extend grace.
Emma Camp did not deserve the scorn she received. She made a serious point about a serious problem, and the reality that legal threats are more dangerous than peer shaming or peer intimidation doesn’t render those phenomena unimportant. Culture matters, and a nation that turns its heart away from free speech and open debate is a nation that will eventually change its laws. The First Amendment can’t protect free speech all by itself.