Friday, July 21, 2017

Initial thoughts on "free speech" on campus

Why is "free speech" even an issue on college campuses. A college campus is a voluntary association, and the privileges and immunities of individuals in a voluntary association are usually (but not always, see below) matters of negotiation, not right.

We could argue and negotiate about whether or not it's a Good Idea to invite, say, Charles Murray to speak on campus. A colleague, whom I admire and respect, concedes that Murray is both wrong and uses bad methodology, but that the university would be best served by openly and critically examining his ideas rather than ignoring him. I'm not sure he's wrong, but in my position as a student and faculty member, I would strongly negotiate for substantive conditions on Murray's (hypothetical) appearance: I might endorse a debate, but I would absolutely oppose Murray speaking under circumstances, such as a commencement address, that did not support critical inquiry.

But the point is not necessarily whether or not it's a good idea (and for whom it is or is not a good idea) to invite Murray to speak; the point is whether Murray has the right to speak on campus or whether my university has an obligation, separate from our already-accepted institutional obligations, to invite him to speak. Our university is a voluntary association, but the government can and does impose rights on even voluntary associations. For example, unless an association is explicitly religious, a commercial voluntary association open to the public has the state-imposed obligation to not racially discriminate; individuals have the right to attend without regard to their race, without regard to the opinions of any of the directly interested parties: even if it were the consensus of the regents, the administration, the faculty, and the student body to exclude black people, we would be legally prohibited — correctly — from permitting such discrimination. So it is not inconceivable that universities must extend some privileges and immunities as a matter of right, and not just negotiation.

However, I think the case has to be made positively that some issue is a matter of right with regard to voluntary associations; the default position, unless there are compelling reasons to the contrary, should be that an issue is a matter of negotiation.

This distinction is especially important because the U.S. Constitution explicitly makes freedom of speech a matter of right, not negotiation, with respect to federal law, and, since Gitlow v. New York, state law. NAMBLA, for example, need not justify their immunity from prosecution for publishing their views by arguing that it's a Good Idea to publish; they need only point to the First Amendment.

Thus, I'm going to be looking at what kind of arguments supposed proponents and opponents of "free speech" on campus make. It's one thing to argue that it's a Good Idea or Bad Idea to have this or that particular conversation on campus with some individual or group; it's quite another to claim that arguments against this or that conversation are irrelevant because free speech. The first is just negotiation, and as I am an interested party on only one campus, I have little to say about negotiations on other campuses except at the most abstract level.

The second, however, deserves more careful examination. First, do advocates of the right of free speech on campus assert a universal right, i.e. does everyone, or at least everyone fulfilling some objective conditions, have the right to speak on campus, or do they assert a special right, i.e. only some group (e.g. "conservatives") has the right; and other groups' privileges are subject to negotiation? On what basis do they advocate free speech? One could, of course use the First Amendment to argue a more general case, but it is insufficient to just point to the First Amendment, which restricts only federal and state law; it does not automatically extend to voluntary associations.

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