This commentary was originally featured in Forbes on January 18, 2018.
On January 31, the Texas Senate’s State Affairs Committee will travel to Texas State University in San Marcos to hold a hearing to “ascertain any restrictions on Freedom of Speech rights that Texas students face in expressing their views on campus.” This coming event did not occur in a vacuum. Over the past few years, a debate has been raging nationwide over the status of free speech and debate at our public colleges and universities. While all sides agree that higher learning requires free discussion, at the same time, a concern has arisen over whether “hate speech” enjoys the same First Amendment protections as other forms of speech.
The stakes involved in this debate extend far beyond our campuses. Nothing less than the integrity of the American experiment in self-government is at stake. Why?
American democracy rests on two principled pillars: equality and individual liberty. However, these two principles can sometimes be in tension with each other. President Thomas Jefferson summed up this tension in his First Inaugural Address in 1801: “[T]hough the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable. . . [because] the minority possess their equal rights, which equal laws must protect, and to violate would be oppression.”
How does American democracy look to ensure that the will of the majority is reasonable and not violating minority rights? One indispensable tool is the First Amendment, which, among other things, protects even speech and expression not favored by the current majority. Through this protection, discussion of alternative policy proposals can ensue; without such discussion, any democracy loses its vigor.
Simply put, American democracy rests on the faith that the people will be capable of choosing rightly, provided that they are free to discuss and deliberate over the merits and demerits of competing candidates and proposals.
Our colleges and universities rest on a kindred faith—that students and faculty will more likely arrive at the truth through unfettered study and debate. This is more than sound pedagogy, important as that is. It is also settled constitutional law.
The U.S. Supreme Court has spoken on the issue of campus free speech in a number of cases. Although the First Amendment does not force government to provide a speaker’s platform to anyone, it does prohibit government from discriminating against speech based on the speaker’s viewpoint. Therefore, while no public colleges or universities are legally obliged to fund student publications, the Court has ruled that when a public university opts to provide such funds, it cannot then refuse them for those student periodicals that defend a viewpoint currently out of favor with the ruling majority.
Because Texas public colleges and universities are agencies of the state of Texas, they are as obligated to uphold the First Amendment as any other government agency. For this reason, while administrators are free to invite whomever they choose to appear and speak on campus, they are constitutionally prohibited from mandating which speakers student groups may decide to invite on their own. To do otherwise, says the Court, constitutes viewpoint discrimination.
Of course, the First Amendment does not protect speech that willfully incites its listeners to immediately engage in violence or illegality. But, aside from violating this high standard, speech must remain free. As an ACLU study states, “[T]he First Amendment allows lots of breathing room for the messy, chaotic, ad hominem, passionate, and even bigoted speech that is part and parcel of American politics. It’s the price we pay to keep bullhorns in the hands of political activists.”
Moreover, although the Court ruled in 1942 that the First Amendment does not protect “fighting words,” this narrow exception does not apply to those addressing large audiences on campus—regardless of how odious the speech may be. For this reason, the Court has also ruled that government cannot inhibit speech that is likely to provoke a hostile reaction; that is, the Court has ruled against the “heckler’s veto.” As the ACLU argues, “without this vital protection, government officials could use safety concerns as a smokescreen to justify shutting down speech they don’t like. . . . Instead, the First Amendment requires . . . taking reasonable measures to ensure that speakers are able to safely and effectively address their audience.”
But what of so-called hate speech? Is it also protected under the First Amendment? It is, as the Court has made abundantly clear, most recently in its June 2017 decision in Matal v. Tam, the “Slants” case. Justice Kennedy wrote: “A law found to discriminate based on viewpoint is an ‘egregious form of content discrimination,’ which is ‘presumptively unconstitutional.’ . . . A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all.”
Kennedy’s observation points us back to our democratic faith in free debate at both public universities and in the public square. Governing majorities come and go, and with them come and go political opinions, a number of them repellent, to be sure. But while many among us might not share the same political opinions—even to the point of regarding the opposition as “hateful”—what we all share is a profound need for alternative visions to be heard and debated. Without such protection, we run the risk that our suppression of others’ speech during this political season—during which we are the majority—will be turned against us in the next, when we find ourselves in the minority.
Let all sides keep our democratic faith in mind when they descend on the committee hearing in San Marcos.