Only a Few Examples of Censorship on Campus?

A few commenters on my latest post for The Volokh Conspiracy have been riffing on the theme that the Foundation for Individual Rights in Education (FIRE, where I work) is only able to show a few examples of censorship on campus, and therefore it must not be that big of a problem.

Here’s my erudite response: hogwash.

First of all, it takes a very rare brave and/or motivated student to even bother fighting back against his or her college or university administration. Nonetheless, FIRE, which is not exactly a household name, receives about 450 requests for help every year from students or faculty members who believe their free speech or due process rights have been violated. Because of our size, we don’t actually have the capacity to handle all of the case submissions we receive. Some cases we refer to attorneys, while other cases are settled in private. The cases that we talk about publicly are only those about which we have been given permission to speak. But even with all these limitations, here’s a short list of just some of the cases we have fought over the past few years:

If you want a list of all of our public cases, you can go here. And we are under no illusion that we are involved in all of the free-speech-on-campus cases out there.

I find it funny that these comments are written underneath a post in which I point out that FIRE has found that 65 percent of the 392 top colleges in the country maintain what we call “red light speech codes.” Within the same post I also list a dozen challenges to speech codes, all of which resulted in their defeat.

Something that some readers couldn’t seem to understand — and I find this puzzling for a constitutionally-oriented law blog — is that even when they’re not enforced, speech codes are a harm in and of themselves. If you have a policy like the one they used to have at Drexel University, which banned “inappropriately directed laughter,” the very existence of the policy sends a message to students that they should really watch what they say or even laugh about. This is the so-called “chilling effect,” and is the part of the rationale for why laws that violate the First Amendment can be found facially unconstitutional without having to prove that they have been enforced.

In my first post for The Volokh Conspiracy, I pointed out that a surprisingly small number of students and faculty say they strongly agree with the statement that it is “safe to hold unpopular positions on campus.” I go into this problem in great depth in my book, but if students and faculty don’t believe it is safe to even hold unpopular beliefs on campus, something is making them think twice about what they say. It may be the chilling effect of both punishments and speech codes, or more likely the culture that created the punishments and speech codes and considers them acceptable, but either way such data should disturb anybody who cares about candor and discourse on campus.

And, yes, the cases I talk about in the video are somewhat older. This is because FIRE had no video budget for a long time, so we compiled that video from the few interviews we were able to record over the years. If you check out my book, you will see that it has dozens of updated examples that happened within the past year or so.

Lastly, speech codes cause harm in and of themselves because by putting manifestly unconstitutional policies on the books at public universities across the country, colleges are failing to encourage freewheeling debate and discussion and are teaching students all the wrong lessons about what rights they actually have and the deep philosophy that undergirds those rights. For those of you who interested in a refresher on some of the epistemological reasons why we believe in free speech in the first place, I highly recommend this video of a talk by Brookings Institution scholar Jonathan Rauch, or this one that I recently did with author Steven Pinker.

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