Another academic year will bring a lot of debate about the nature of debate on college campuses. It is tempting to say that if the First Amendment is the gold standard of public debate, why not import it wholesale into the university, even if the institution is private and beyond the Amendment’s formal reach? In fact, enthusiasm for applying the modern First Amendment in full to the campus is the position of much of the classical liberal right, because they see it as the way to protect conservative dissenters from left-wing university bureaucrats. Yet the fit between the modern First Amendment and the university as originally conceived by classical liberals is far from perfect. A university is an institution for finding truth by reason. But modern First Amendment doctrine is a charter for expression, protecting speech and even conduct with little, if any, rational content.
Moreover, the First Amendment protects not only speech but also assembly. That guarantee is aimed less at truth-seeking than at collective action. It empowers citizens peacefully to organize and press their government to change policy. The ideal university, by contrast, should resist any pressure unrelated to truth. An idea does not become truer because many people gather to demand its adoption. Moreover, given their role as facilitators of reasoned discourse, universities should not be adopting political or cultural positions as institutions.
Thus, even if public universities are bound by modern First Amendment case law, private universities should not sign on. Of course, they should model an epistemic openness in which all reasoned arguments are welcome and encouraged. They may also need to impose institutional constraints on themselves to make sure that the unsettling ideas are heard, mandating neutral and unbiased tribunals to protect speech and inquiry. Judicial review thus is a legal idea that may have some lessons even outside the public university context. Building on that old idea rather than on the modern First Amendment may be the better way to protect dissenters while still upholding the classical ideal of the university.
The focus of the university on discovering truth through reason links the institution from its growth as a medieval foundation for disciplined disputation to the modern research center of today. At Bologna and Paris, the first universities, theses were stated, critiqued, and then defended by reasons. The Enlightenment sometimes redirected that method toward empirical inquiry but preserved the same architecture of truth-seeking. Conclusions were based on evidence and could be disputed based on better evidence. Modern research institutions continued this tradition and added new safeguards such as academic freedom and tenure that are designed to secure independence from faction and fashion.
The university ideal thus has remained that of a social technology for the discovery of knowledge. Sadly, the ideal is not always honored. Ideological monocultures can dull reason’s blade. But when challenged politically, at least, universities never tire of aligning themselves with their proud tradition of preserving epistemic openness bound by reason. It remains their best argument for independence from the threats of politics.
The free speech regime at the time of the Framing likely better comports with that university ideal because speech had to be an exercise in reasoned persuasion to gain protection. The point appears beneath the surface of state charters: Pennsylvania in 1790 guaranteed “the free communication of thoughts and opinions” and allowed citizens to “freely speak, write and print on any subject,” while making them “responsible for the abuse of that liberty.” That text both ties speech to the exchange of reasons and appears to draw a line at non-communicative abuse. Johnson’s influential eighteenth-century dictionary defined “speech” as “the power of expressing thoughts by vocal words,” thus framing it as an instrument of rational expression. Jefferson stated in the Virginia Statute for Religious Freedom that citizens are “free to profess, and by argument to maintain, their opinion in matters of religion”—again, the vocabulary of argument and persuasion rather than brute verbal force. Consistent with this view, states maintained and enacted laws punishing profane cursing, blasphemy, and kindred offenses in the 1790s and early republic—Massachusetts’s “Act to Prevent Profane Cursing and Swearing” in 1798 is one example. Thus, at the time of the Framing speech was prized, but as an instrument in the service of reason. When speech departed from reasoned persuasion, it lost its protection.
Universities would have spared themselves a great deal of grief with a simple rule against political assemblies and demonstrations so long as it was rigorously enforced against everyone.
Modern doctrine, however, has entirely pivoted from “reasoned persuasion” to a broader ideal of expressive autonomy. One inflection point was Justice John Marshall Harlan’s opinion in Cohen v. California. Paul Cohen had been convicted for wearing a jacket reading “F__- the Draft” in a courthouse corridor. But Harlan refused to let the state regulate speech on the basis of its vulgarity. He emphasized that expression carries both a “cognitive” and an “emotive” message and that the Constitution protects the latter as part of how citizens communicate meaning. Because Cohen’s expletive was not obscene, not directed at a particular person, and not likely to provoke a fight, the state’s interest in decorum yielded to a principle of tolerating offense in the name of free expression. In short, Cohen decoupled protection from the provision of reasons and anchored it instead in a robust commitment to expressive freedom, even when the mode of expression may even retard rational argument.
After Cohen, the Court moved further from reason as the touchstone of free speech. First, “fighting words” category shrank. Second, incitement was narrowed to advocacy intended and likely to produce imminent lawless action. Third, offense to sensibilities, however profound, did not suffice to suppress speech (Hustler Magazine, Inc. v. Falwell, Snyder v. Phelps). The Court also protected symbolic acts like flag burning (Texas v. Johnson). The governing tests for free speech now turn on such matters as content and viewpoint neutrality and imminence of violence, not on whether speech is connected to public reason. That shift has yielded a First Amendment regime that is capacious, but indifferent to a speech’s rational quality. It gives the widest berth to expression, including that made solely for shock value, but at the cost of abandoning the requirement that the speech display even a modicum of reason.
Public universities are thus probably stuck with having to accept expressive self-fulfillment as the mandate they need to follow. Even public universities, however, can use time, place and manner regulations to make sure that this kind of expression does not obstruct their core business, whether conducted by their own teachers or outside speakers. But private universities need not accept the modern view. They should instead use the older First Amendment paradigm because it better roots the right to speech in the right to reason to gain the truth. Thus, universities should provide protection for any speech that attempts to reason under a broad definition of what reason is. Reasoned persuasion can take the form of dissent against the vast weight of opinion and authority. But reasoned persuasion does not consist in insults, fighting words, and personal invective.
To be sure, as in any free speech regime, there may be reason to distrust the administration in making ideologically neutral decisions about what speech is protected under the rules employed. But this is an institutional problem, not a conceptual one. Universities should create tribunals on the model of judicial review to resolve disputes about the boundaries of their rules that are composed of neutral arbiters. Distinguished alumni, particularly lawyers, of diverse viewpoints might be appointed arbiters. And here one should be relatively sanguine about their decisions. For instance, whatever one thinks of the current Supreme Court’s First Amendment doctrine, its application to parties of widely varying ideologies seems eminently fair.
Universities, unlike the government, also possess an obligation to facilitate debate and conversations between different reasoned positions. The First Amendment protects negative rights, preventing the government from interfering with speech, but not requiring it to aid in building knowledge. But the truth-seeking function of the university requires it to facilitate and encourage debate aimed at discovering reality. Sadly, because of their ideological monoculture many universities fail to do so. My own law school even took money from a well-meaning donor who wanted the expression of the diversity of views but created forums that lacked them.
Providing students a fundamental right to assemble or demonstrate, by contrast, discourages the kind of reasoned speech essential to free inquiry. The right of assembly in our Constitution was not about reasoned persuasion but instead protected the right of the people to peacefully assemble to press for the redress of their grievances. Founding-era texts treat assembly as the people’s right to gather in order to act politically—to consult, instruct representatives, and petition. Massachusetts’s 1780 constitution provides an example: citizens may “assemble to consult upon the common good; give instructions to their representatives; and … request … redress” by address, petition, or remonstrance. Pennsylvania’s 1776 declaration uses the same similar terms such as “assemble,” “consult,” “instruct,” and “apply,” making clear that the right protects coordinated political pressure in a lawful, orderly form.
The university, however, is not a political institution, and neither its students nor its faculty are its citizens. Both have freely chosen any particular university in a market of higher education and, if unhappy, can go elsewhere to one of its many competitors. Reason, not pressure, should govern the relations of all members of the university, whether the issue is a political or moral one outside the university or one of governance within.
Thus, universities should not permit demonstrations for or against speakers or causes on university campuses. They should certainly not allow, as my university did, the erection of structures to make some political point. Building improvised structures may be a useful skill but it is unrelated to the university’s business and may obstruct it. Universities would have spared themselves a great deal of grief with a simple rule against political assemblies and demonstrations so long as it was rigorously enforced against everyone.
The university secures its authority not by importing the First Amendment’s modern, autonomy-maximizing sweep, but by reclaiming the older freedom that privileges reasoned persuasion. Its charter is to find truth through reason, not protect expression as a means of personal fulfilment. Its objective requires safeguards for any good-faith attempt at reasoning but excludes individual insults and mob pressure. Protect reasons, not rage. The university can then enjoy the freedom calibrated to its mission.
