Vikram Amar is the dean of the University of Illinois College of Law and the Iwan Foundation Professor of Law. Amar, an expert in constitutional law, spoke with News Bureau business and law editor Phil Ciciora about the intersection of free speech and academic freedom.
In response to the violence at the University of Virginia, Charlottesville, do you foresee colleges and universities inviting fewer speakers who could be deemed controversial, simply in order to avoid protests or stoking ire?
I hope universities don’t overreact by avoiding controversial speakers altogether. Universities must remain committed to promoting and protecting a wide-ranging and open exchange of competing ideas, hypotheses, perspectives and values, and such an exchange often will unavoidably involve political controversy. So if you eliminate controversy, you lose important speech.
At the same time, just because a speaker is controversial doesn’t mean that person is worth inviting and listening to. Many of the controversial speakers whom student organizations seek to bring to campuses these days are mere rabble-rousers who do not contribute anything meaningful to the kind of serious discourse that universities should be in the business of facilitating. Central campus administrations, especially at public colleges, may not be easily able to control the choices student and faculty groups make about whom to invite, but the inviters themselves often need to think harder before concluding that someone is really worth hearing.
What is the line between transgressive speech and hate speech?
There is no accepted legal definition of hate speech. For that reason, even though the term is used a lot, it is of limited utility. Much speech that is fully protected by the First Amendment is extremely hateful; just look at the political campaigns we endured last fall. So government, including public universities as well as private schools that adopt constitutional norms, cannot punish speech simply on the ground that the speech is mean-spirited or disparaging. Instead, government can – and should – prohibit and punish true threats, pervasive harassment of individuals, incitement to violence, etc., all of which are legal categories of expression that fall outside of First Amendment protection.
What constitutes a true threat or actionable harassment often depends much on context. But, in general, things uttered in public – at a speech or rally, or on a sign displayed on a street corner or quad, for example – that do not target specific individuals or call for imminent lawless action are more likely to be fully constitutionally protected and thus immune from government punishment on the basis of the message.
Two other points: First, although hateful speech cannot be prohibited, universities can, and ought to, educate students and faculty about its costs, and can encourage individuals to exercise expressive rights responsibly and with an eye toward the harm inflicted on others. Second, administrators of universities – even public universities – can themselves speak up, and call out hateful (though fully constitutionally protected) speech for what it is.
What is the proper way for individuals to register dissent with speech that they disagree with? When does protesting someone else’s speech veer into preventing speech, and why is that problematic?
Our system is premised on the notion that the answer to bad speech is more speech, so demonstrations and counter-rallies and protests are to be allowed, even encouraged. But the purpose has to be to present the opposing view, not to prevent the original speaker from being heard. So blockades, shouting down speakers, and violence or threatened violence against a speaker or a speaker’s audience are all out of bounds. These tactics are in tension with, rather than in furtherance of, the free speech tradition of the First Amendment, which is grounded on the notion that ideas, rather than the use of force, should move hearts and minds.
If angry majorities have the right to silence speakers by impeding events and shouting speakers down, we wouldn’t have had the abolitionist or civil rights movements.
In higher education, how are the principles of freedom of speech and academic freedom interconnected? Is one more limited than the other?
That’s a hard question because, like hate speech, academic freedom means different things to different people.
In general terms, freedom of speech is a right codified in the federal First Amendment and state constitutional analogues that protects speakers in both public and private settings from unwarranted government interference with expression, to facilitate democracy and preserve autonomy. Academic freedom, by contrast, is grounded on the specific idea that, at least in the academy, free inquiry unburdened by the constraints of orthodoxy will lead to the development of new ideas and knowledge.
Academic freedom is narrower than freedom of speech in that the former applies only on campuses, but it also may in some ways be broader. For example, under the First Amendment, a public university, in its role as employer, may be permitted to direct the specific content of the research or teaching of its faculty, but academic freedom norms suggest that neither the state legislature nor the university administration should micromanage research and teaching directions of individual faculty members once these individuals have been hired, especially after they have been given tenure.
Notwithstanding their different scopes, both freedom of speech and academic freedom rest on the bedrock belief that ideas and arguments ought to be evaluated on their substance. The essence of both kinds of freedom is the opportunity to persuade others of the merits of one’s argument, rather than to use power to coerce others into acceding to the proponent’s point of view.