President’s Message: Basic Principles Concerning Law Schools and Freedom of Speech

By AALS President Erwin Chemerinsky, Dean, UC Berkeley School of Law

Recent events at a couple of law schools, where students disrupted speakers, received national media attention. The incidents were powerful reminders of the importance of law schools as places for expression as well as the role of law schools as essential leaders in articulating and explaining freedom of speech and academic freedom.

My hope is that law schools and their faculties can unite around some basic principles concerning freedom of speech. After all, free speech is neither a liberal nor a conservative concept. And the reality is that both liberals and conservatives, at times, have the impulse to try to silence the speech they don’t like. Especially in these deeply politically polarized times, there is great benefit in finding agreement as to the importance of free speech and the limits on it as well. If law schools support these principles, ideally, we can be a model for our campuses and perhaps even beyond.

First, the core of freedom of speech under the First Amendment and academic freedom is that all ideas and views should be able to be expressed on campus. For public universities, this principle is mandated by the Constitution. And virtually every private university, in its faculty and student handbooks and its policies, proclaims a commitment to principles of freedom of speech. The intellectual inquiry that is central to law schools and campuses requires this commitment to freedom of speech and academic freedom.

I constantly remind my students that we don’t need freedom of speech to protect the expression we like; we would let it occur anyway. This includes needing to tolerate ideas and views that we find objectionable or even offensive. As the University of Chicago statement on free speech, often referred to as the Kalven Report, declares, it is not the role of the university to “shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.”

Second, it also is crucial to recognize that free speech, under the First Amendment and under principles of academic freedom is not absolute. There are types of speech that are not protected by the First Amendment, such as incitement of illegal activity, harassment, and true threats. Undoubtedly, there are difficult lines to draw, such when speech should be deemed incitement or a true threat or harassment.

Also, the campus may, consistent with the First Amendment and academic freedom, impose time, place, and manner restrictions on speech so long as they are content-neutral (i.e., apply to all speech the same regardless of message) and leave open adequate alternative places for communication.

Third, even when speech is protected by the First Amendment and academic freedom, it is important to recognize that it can cause serious harms. Although the law is clear that hateful speech is generally protected by the Constitution, it must be remembered that such speech inflicts serious injuries, especially to groups that have been traditionally underrepresented on campuses. While a campus generally cannot punish such speech, it must act to create an inclusive environment for all students, staff, and faculty, including responding to hateful speech in a way that reaffirms our principles of community.

This is not to lessen the importance of the serious debate among scholars as to whether hate speech should be deemed to be outside the protections of the First Amendment. Under current law, though, such speech is constitutionally safeguarded. In fact, every campus hate speech code to be considered by a court was struck down.

Fourth, disruption of speakers is not acceptable and is subject to discipline. There is no right to use speech to silence others. Otherwise, the only speech that will occur is that which no one cares enough to shout down. The response to objectionable speech is peaceful protests and more speech, not disruption.

A few years ago, there was an incident at my law school where an Israeli Supreme Court justice was coming to speak. A group, Students for Justice in Palestine, indicated that they were going to disrupt the event and “de-platform” the speaker and keep her from being heard. I sent a letter to the law school community saying that all ideas and views can be expressed, that disruption of a speaker would be punished, and that those who object must do so in a non-disruptive way. That, thankfully, is what occurred, as the Students for Justice in Palestine handed out leaflets and then held their own event.

Fifth, technological advancements have made communication to a public audience faster and easier than any time in history. There are tremendous advantages to the internet and social media in advancing speech, but there also are harms. There is the ability to use these media to transmit false information, to harm reputation and invade privacy, and to harass. But technological affordances do not change the principles of freedom of speech and academic freedom. The expression of ideas, regardless of the communication medium, is protected. Prohibited conduct carried out through technological means, including threats, intimidation, harassment, stalking, and incitement to imminent lawless action, are not protected.

I realize that these principles do not answer so many of the hard issues that law schools and campuses face with regard to free speech. But I do hope that they are a starting point.