Campus Discourse and Democracy: Free Speech Principles Provide Sound Guidance Even after the Tumult of 2017

Abstract

This Article argues that First Amendment doctrine provides a nuanced and adequate framework for responding to contemporary challenges involving the intersection of free speech, protests, outside agitators, and the risk of violence on college campuses. The Article places contemporary events and concerns in the context of classic free speech doctrine—which binds all public colleges and universities and which many privately-run colleges voluntarily commit to respecting. It also analyzes the import of the unique mission of universities as set out in three seminal university reports on freedom of expression that emphasize intellectual freedom, “full freedom of dissent,” and the imperative of protecting views that many find deeply offensive. Using three highly publicized examples of what many regard as the transformation of colleges into political battlegrounds—events in 2017 at the University of California, Berkeley, the Unite the Right rally in Charlottesville, Virginia and Richard Spencer’s talk at the University of Florida—this Article provides taxonomies of how outsiders come to speak at campuses, and how they come to be disinvited or prevented from speaking, along with explanations of what the Speech Clause prohibits and permits. The Article provides constitutional and pragmatic guidance respecting best practices for balancing the need to preserve safety in the face of imminent violence (including the presence of weapons)—which requires a real, proximate risk attributable to the speaker before expression can be silenced—against the requirements of the Speech Clause and the sometimes competing imperatives of respecting dignity and equality for all members of the campus community.