Erwin Chemerinsky & Howard Gillman on freedom of speech on college campuses

UCI Law Talks logoUCI Chancellor and Professor of Law Howard Gillman and UCI Law Dean Erwin Chemerinsky discuss what they learned in teaching a freshman seminar on freedom of speech on college campuses.

Op-Ed in The Chronicle of Higher Education
Op-Ed in Los Angeles Times

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Image of Dean Chemerinsky and Chancellor Gillman recording podcast


Erwin Chemerinsky Erwin Chemerinsky, Dean, Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law
Expertise: Constitutional law, federal practice, civil rights and civil liberties, appellate litigation


Howard Gillman

Howard Gillman, Chancellor, Professor of Political Science and Law, UC Irvine
Expertise: American constitutionalism, judicial politics

Podcast Transcript

[Narrator] Welcome to UCI Law Talks, presenting both perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter at UCI #UCILawTalks

[Erwin Chemerinsky] I’m Erwin Chemerinsky; I’m Dean of the law school and a professor here and I'm with the Chancellor of the University of California, Irvine, Howard Gilman, who's also a professor of law and political science. Howard and I had the wonderful opportunity of teaching a freshman seminar on freedom of speech on college campuses and I think what I want to start us talking about is our reactions to the students and their thoughts with regard to freedom of speech on college campuses. I think we both were surprised that the students were quite inclined to wanting to allow campuses to restrict speech and didn't seem very sympathetic to the usual First Amendment arguments.

[Howard Gillman] That's right. They were such wonderful students though, we should start with that. I mean a lot of times in the public debate people are expressing views on this issue in the heat of the moment. These were kids who were absolutely fantastic, committed to learning the material, very thoughtful. But when we tested them throughout the course and especially at the beginning of the course and asked them for their initial impressions of how they would think about some of these issues, their instincts, all of their instincts, are in the direction of protecting their peers from any kind of speech that might be psychologically harmful. And they had a very – well they grew up at a time where they really didn't have exposure to the kind of free speech traditions that you and I grew up with.


[EC] One example was the first day. For every topic we gave them a problem; it was a way of focusing discussion. I think pedagogically that worked really well. In the first problem we gave them involved the University of Oklahoma. Some fraternity members led a chant on a bus that was filled with other fraternity members. The chant was deeply offensive; it was racist and those two students who led the chant were expelled from the University of Oklahoma by the president, David Boren. We asked our students if those students who were expelled had sued the University of Oklahoma, should the students have won on First Amendment grounds? As I recall all of our students came down on the side of the University of Oklahoma. Not one thought that the student’s speech was protected by the First Amendment and I think some of it is what you say that the students were so inclined to want to protect their classmates other students from offense and this is laudable; it's admirable that they want to create a learning environment that's conducive for all. On the other hand, what I was also surprised by was there's no distrust of campus authorities and of government power more generally in regulating speech. You mentioned when we grew up, there was great distrust of campus authorities and government power. Here, they wanted to allow the campus authorities and the government power to protect the students on campus.

[HG] And it wasn't even a close call for them. I mean there, there might be some cases where some desire to contrast what it means for a person in a private setting to express something that might be quite horrible but whether actual official punishment should be brought down on them for those kinds of expressions, we – they didn't think twice about it. I mean from them the – it was even just the presence within their community of people that would have such hateful views was a source of persistent irritation throughout the semester. And you know from our point of view, we grew up at a time when, when you gave officials – government officials the authority to silence speakers on grounds that they might be offensive or that in some general way that speech might be harmful. We know that the victims of that power were people who traditionally were vulnerable in society, were the iconoclasts in society. They might be religious minorities during World War II, they could be leftist in the ‘50’s, even the desire to censor civil rights advocates for speaking out against racist sheriffs was very strong. So we grew up at a time when we focused more on the potential abuse of power associated with authorizing censorship but they didn't grow up at a time where there was a lot of censorship. Right? If anything, they were exposed to more speech and especially vitriolic speech in social media than was part of our upbringing and there was very little evidence in their upbringing for how vulnerable people could be hurt if you chose to impose that kind of censorship on them.

[EC] And their emotional connection was to the others students and wanting to protect the other students from offense. There was very little emotional connection to them to the importance of freedom of speech. One of the things that I realized over the course of our discussions with them is that the Civil Rights Movement and the Anti-Vietnam War Movement was long ago for them as World War I was when we were growing up. And so, as they went through the class, there's this emotional connection to protecting fellow classmates and no real emotional connection to free speech and, certainly as you say, no recognition to how freedom of speech conserves the goals that they want and protect vulnerable individuals. And as a result, their instincts were very much on the side of we need to restrict speech we need to prevent people from being offended.

[HG] And really every one of our students when we would talk with them had an example where either they or someone they cared about had been emotionally traumatized by social media bullying by folks who were trying to show intolerance and disrespect to them. And you know, they grew up at a time, when unlike when we were growing up, there was much less tolerance for bullying. There were – it wasn't the case that teachers or coaches would engage in shaming of students. There was a lot more emotional validation and really working harder to provide a positive environment. People didn't feel so judged; people were more welcoming; they grew up in schools that had tolerance weeks and all of that is for the better. And one of the things that I think were impressed upon us is that a lot of the commentary about these students in the public is very dismissive of their concerns about the emotional well-being of their peers. People accuse them of being coddled; they want to tell them to pull themselves up by their bootstraps. I think we found an emotional maturity in them and that the thing that we felt was most admirable about them was how empathetic they were to people who could be the victims of hateful forms of expression. But we also found that they didn't have any of the counter-balancing instincts and especially the emotional attachment to what might be true if you gave power holders the authority not just to speak out against people who were rude or engaged in hateful speech but who actually punish people in very severe ways. So a lot of the class, and I think the story arc for the class, was that as they got to know the tradition of free speech in the United States in the 20th century. All of those hard fought battles – it gave them a countervailing narrative that by the end of the semester, I think we found they were thinking through these issues in a much more sophisticated way.

[EC] I that's right; I think some of it was they saw how difficult it would be to define what's the speech that's unprotected by the First Amendment in a way that wouldn't cause the suppression of things they might want to say. One of the examples we took up was the movement of 20 years ago to create hate speech codes on college campuses and we asked them how could you write a hate speech? And I think when they went through that exercise, they realized it's impossible to try to define what's the hate speech that should be punished versus the things that they might want to say or they want to hear said that shouldn't be punished.

[HG] And I think they – initially they had confidence because the goal of the hate speech code from their experience was filtered through this emphasis on anti-bullying, on greater degrees of tolerance, not mocking people in a learning environment. And if that's all that a hate speech code would be and if it was easy simply to define it in a way where emotionally traumatic and discriminatory behavior and forms of expression were the things you were going after, then you know you'd have an argument about whether you could make that work. But as we remember going through these debates 20 years ago, the problem with these hate speech codes is the minute you try to define them as for example prohibiting speech that is either offensive or demeaning or disparaging of someone, immediately you get a broadening of the accusations against speakers. And even in some of the most famous litigation arising out of that initial wave of hate speech codes, the people who were bringing the lawsuits who were either being punished or worried about being punished were not hateful speakers in the way that they think of it. It was people who were expressing potentially controversial points of view and when you asked students, well if someone is offended by that and you clearly see that as political speech, where do you draw the line and they had never really reflected on the problems of line drawing and implementation that we lived through when this was first attempted.

[EC] I think it’s one of the most important things for a student over the course of the quarter. The initial impulse was to protect their fellow students of offense. And the paradigm example would be from racial epithets. But then when they would think about it, well does that then mean that the expression of ideas that hurt people's feelings are offensive could also be suppressed? If you're going to go down the path of the campus can punish any speech that offends people, where's the stopping point?

[HG] That's right and the magnitude of the censorship that would have to happen if you were really going to eliminate from a learning space anything that could offend someone is so extraordinary that it's not any longer a matter of creating a safe and nondiscriminatory learning space. It's really about eviscerating the very idea of a learning space and we know, for example, even though when you try to contrast or just focus on maybe racial epithets and the like that – that is something that initially they feel you could work with. But we've been through efforts of local prosecutors to punish 2 Live Crew for albums that were considered deeply offensive that would also use those sorts of words, but that's not part of their current reality. And so, the way in which in unexpected ways if you establish one precedent then the effects of punishing people for speech that they didn't intend to suppress, that was something that only occurred to them when you just went through all of the other examples.

[EC] And I think there were two moments over the course of the quarter that were very powerful for the students. One was we talked about the Nazis should have the right to march in Skokie. And their instinct there was, well the Nazi should be able to express their view and even though it would offend people, their sympathies were much more with the expression than with the victims. And then when we brought it to the college campus I think it was important for them to realize that the role of a college campus is to be a place where ideas are expressed. That even when the ideas make people uncomfortable, even when the ideas offend people, the campus is there for intellectual inquiry. And you can’t get to the intellectual inquiry when you’re saying these ideas can't be expressed.

[HG] And all of our intuitions are that at a campus, that should be the place which has the broadest play of the exchange of ideas because it has to be the one place in society where you're free to bravely say things that maybe would get you in trouble in other areas but their intuitions were exactly the opposite. So when we – when we went through examples of other very hateful forms of expression that were not on college campuses, these terrible protests against – at soldiers' funerals that are so offensive to anyone that the court protected they – they were much more comfortable with that than if it was off a campus. If they were on a part of the sidewalk where they were allowed to be, they thought that that might be okay. It was really coming into the educational environment where they were most sensitive and so for us that was a paradox, right, because you would have thought the educational environment is where the most free-play of ideas would happen. But they were very, you know, they – their teachers were not teachers who showed them ways of learning by making them uncomfortable. Right? There has been a lot of effort in their K-12 experience to create very comfortable environments and then that's a predicate for teaching. And so, part of what I think a lot of the current debates are about is whether or not that actually applies to a college campus any longer and whether they can make that distinction.

[EC] I think what you just said is so much at the core of what's going on at campuses all over the country. One funny thing about teaching this class and, really I’m looking forward to teaching it again is, every week, if not every day, there's another instance on a college campus now go to the same tension. Our instinct is, that college campuses should be the place where ideas are expressed, where, yes, people are going to be offended, but the response should be more speech. Their instinct is, college campuses are places that should be safe for students where they should be protected from offense. And those two views are very different; it was interesting to see over the course of the quarter how many of the students shifted and as they thought about the importance of freedom of speech, as they thought about what campuses are for, as they recognize the dangers of suppressing speech, they tended to shift. And the very least could defend their views in a quite different way.

[HG] And the other thing that they did was they started to make a distinction between speech that might be considered offensive that nevertheless came from a genuine political or religious point of view. I mean we pointed out that there may be conservative Christians who opposed gay marriage rights for same sex couples. And if that was a legitimately expressed idea on the campus, even though it was deeply offensive to people who are absolutely committed to marriage equality, should they get in trouble for expressing that sincere view? And – or if it was a political view, you know, of the sort that's happening in the country right now about what our immigration policy should be. They got to a point where they didn't expect every political or religious view that people would disagree with to be a basis for an official punishment. But they always held on to the notion that there might be hateful forms of expression that are just designed to be mean, right, that weren't really part of a marketplace of ideas. And we see this in some of the polling that has come out over the last couple of months where – when I think it's right now where if you differentiate for students, do you do you ban all offensive speech or only offensive speech that is not related to a political or religious viewpoint that could be defended? You're seeing a weakening there and most students probably realize and even our students realized you can't eliminate from campuses anything that some people might be offended by but everyone is still holding on to that one core idea that if you're just being hateful for purposes being hateful, they don't want that in the educational environment.

[EC] And yet where that line is drawn is enormously difficult and I think our students perceived that over the course of the quarter. Since the course ended, there’ve been incidents on the University California, San Diego campus and Tulane campus and some others where students in chalk wrote: Trump build that wall. And other students found that so offensive that they believe that the students responsible for writing it should be punished. “Trump build that wall,” may be offensive but it is a political message, especially in this election year and yet the University of California, San Diego, Tulane and other campuses this calls that that speech be punished.

[HG] There are alongside some of those sort of clearly political forms of expression, we are seeing some chalking that really is inconsistent with what we would all agree to be the values of a respectful environment. And one of the chances that we had to do for these students is to explain other strategies you could use when you found cases where you really thought it was objectionable and the community should state other values and that one way to state other values is to try a censorship regime. And I think that we complicated their thinking on that but we also noted that sometimes if you acknowledge that speech is bad or hateful but the censorship regime is too risky for suppressing speech that deserves protection, that one alternative is an alternative of more speech rather than in for silence. And this is as we know as old as Justice Brandeis in the early 20th Century advocating for that and it gave us an opportunity to think our campuses doing all they can to create the kind of inclusive and nondiscriminatory learning environments without resorting to a censorship regime. And so in some cases university leaders can’t speak out whenever someone says something controversial politically but it should be the case that when forms of expression are happening on the campus that are truly harmful and directed at students, students need to know that they can count on campus leaders to support them when they’re simply under vicious attack.

[EC] I think it's so important. I think it's important for students and their understanding the impulses to want to censor and punish the speech they don't like. And they've never thought through that more speech press can be even more effective in dealing with that. The problem when you punish speakers is you make them into martyrs. And once there's more speech there’s the chance for campus leaders to proclaim the kind of community they want and I think that that did have an effect on our students thinking it wasn't something they thought through.

[HG] And they also have a chance to think about the positive impact of students finding their own voice in defense of their own values. You know, there is a lot of expectations that campus officials will step in and there are times of course when that's an appropriate thing. But more importantly for students when someone is saying something that is hateful, deeply objectionable, part of what it means to grow up in a university environment is that they are able to address that speaker and that form of speech by exposing it and rebutting it. And that you know, we all know that that's an empowering thing for people and but it's – but this generation needs to learn the power that's associated with that and that's an educational mission. Right? And it's not really their fault that that's not their first intuition; it's not their fault that they don't have a clear and systematic knowledge – depth of knowledge of the free speech tradition in the United States. That means that there's a teaching obligation that we have to this. Instead of just wagging fingers at this generation we need to respect their interest in inclusive learning environments but then also teach them what other ways of accomplishing that might look like.

[EC] I totally agree and one of the things I took away from the course was that we're not doing a very good job of teaching students at any level of education about the history of freedom of speech but the importance of freedom of speech. The other thing that the blame here really falls on First Amendment scholars and lawyers, we haven't done a good job of articulating where is the line to be drawn? Our students' instinct is right. There is a line to be drawn, there always is with regard to freedom of speech. On the one hand, offensive speech can't be stopped just because it’s offensive. All ideas can be expressed no matter how uncomfortable it may make people and ideas. On the other hand, there's no right to threaten people; there's no right to harass people through speech; there's no right to destroy the property of others. And I think that there needs to be far more attention to how do we define what's a true threat in the context of a college campus? How do we define when speech becomes harassing that needs to be punished? What is the appropriate way of being able to use property to convey speech? And I think our students rightly pointed to the lack of clarity in terms of how to draw that line.

[HG] And one of the things that was most beneficial about the class is that it's very easy if you don't know that tradition and you don't know the law of free speech these days to think that you're either free to speak or you're not free to speak. We know that even the most dedicated First Amendment scholars understand that there are categories of absolutely unprotected speech. And – but they didn't have that vocabulary and so if they simply didn't like it when people were acting in ways that were psychologically harmful to other students, their instinct was just that has to be stopped. But we had a chance to say well there are: harassment is not covered, incitement is not covered, true threats are not covered, destruction of property is not covered. So let's see how much of what you want to accomplish could be accomplished if we're just more careful about identifying the things we're really worried about and not putting the rest of it in those same categories. And I think that as a result of that, they developed an entire conceptual apparatus for thinking in more sophisticated ways about these issues, but there was no reason why they should have known that vocabulary when they first walked into the campus.

[EC] This was an instance for me where I learned as much as any of the students in the class. I came away as we've talked about with a much different sense of this generation and their attitudes with regard to speech and their sensibilities with regard to the First Amendment. And you can't generalize in 15 students, but they do so seem so typical of what we're seeing in the opinion polls. You mention in the incidents across campus is we’ve been talking about, I came to admire them so much for the desire to create an inclusive learning environment for all students. But I was also very troubled by their lack of understanding knowledge of the history of the First Amendment, their instinctive willingness to trust the government and campus leaders to punish speech, and it certainly led me to want to do much more to write about and to find ways of communicating exactly these things.

[HG] And I think that people who are wagging fingers should instead be thinking about constructive ways to engage and teach. And the other thing that we learn from this is how fragile a free speech tradition is even in this republic. You know, you think you fight these battles and over the years the country learns what it needs to learn and then the thing is protected forever. And we know the history of the country. It's a much more complicated history and throughout – throughout the entire history of this republic, it has been much easier for public officials to censor people they don't like than it is to protect speech that they don't like. And so, for part of us, I think that means, and maybe the great opportunity of having a chance to teach these students is, that you have to teach the value of the tradition anew in every generation. And if you simply assume that the battle was won in the 60’s with the Berkeley Free Speech Movement and the great decisions of the Warren court and then that simply sticks. And you assume everyone's going to know that forever, well there's a very important lesson in history, which is that you know nothing is forever. The battle is always there and those who don't teach the history are doomed to repeat it. And so for us, I think we – we enjoyed this class as much as we've enjoyed any class that we've taught. We did learn a lot and one of the things we would like everyone else to take to heart is the need, not just to talk about the importance of a free speech tradition, but to explain it again to this generation.

[EC] I think that's the perfect place to end and I totally agree. Thank you so much for doing this.

[HG] Thank you very much Erwin; it was a pleasure.

[Narrator] Thank you for joining us at UCI Law Talks. Produced at the University of California, Irvine School of Law.