When is free speech not so free?

by Candace Bowen, MJE
If it seems too good to be true, it probably is.

That may be a cliché, but it’s often spot on. And no more so than news lately of various orders and state legislation and school policies seeming to promote free speech. That’s a great idea, right?

Well, maybe not.

And while many of these so far relate to college campuses, “so far” are important words. When will their counterparts appear in high schools? That’s sure to happen, and it’s better if we have thought about them already.

It’s also important to give our students a solid foundation in the First Amendment before they head off to college – where they may or may not have a chance to use their voices.

First were the free speech zones. Those really sounded like a good idea – a place on campuses where people could speak their opinions, protest or distribute petitions safely.

“While it may sound like these zones are designed to promote speech, they actually do the opposite by confining political expression to designated areas, often in out-of-the-way locations on campus,” wrote Emerson Sykes and Vera Eidelman, staff attorneys for the ACLU Speech, Privacy, and Technology Project. 

“While it may sound like these zones are designed to promote speech, they actually do the opposite by confining political expression to designated areas, often in out-of-the-way locations on campus,” wrote Emerson Sykes and Vera Eidelman, staff attorneys for the ACLU Speech, Privacy, and Technology Project. 

In their Feb. 7, 2019 article, “When Colleges Confine Free Speech to a ‘Zone,’ It Isn’t Free,” they explained how the First Amendment protects speech in streets and parks and other public areas. “This is just as true on the campuses of public colleges — and for good reason. Our history is filled with examples of student demonstrations that have raised awareness about crucial issues in our society, from protesting the Vietnam War to opposing apartheid in South Africa to standing up for the rights of sexual assault survivors,” they wrote.

Recently, numerous state legislatures have proposed bills inspired by the conservative think-tank, the Goldwater Institute: “Campus Free Speech: A Legislative Proposal.” Again, these sound like a way to promote free speech, but they may not be what they seem. 

The American Association of University Professors expressed concerns in an article about “Campus Free-speech Legislation: History, Progress and Problems.” A primary issue is the Goldwater Institute proposal’s issue based on the belief that “freedom of speech is dying on our college campuses.” The AAUP argues this is not the case. The legislation the Institute inspires has an ultimate goal of changing “the balance of forces” on campuses.

The suggested legislation often targets only specific kinds of interference with free speech  — disinviting speakers, charging for campus security and requiring punishment to end protests and disruption of free speech. An even greater problem is not focusing on some who threaten the speech of professors by recording their classes and by creating watch lists of those thought to be too liberal.

Then March 21, President Donald Trump issued his “Executive Order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities.” Although this, too, sounds empowering, it may not be so.

“In particular, my Administration seeks to promote free and open debate on college and university campuses.  Free inquiry is an essential feature of our Nation’s democracy, and it promotes learning, scientific discovery, and economic prosperity.  We must encourage institutions to appropriately account for this bedrock principle in their administration of student life and to avoid creating environments that stifle competing perspectives, thereby potentially impeding beneficial research and undermining learning.” –Executive Order on Promoting Free Inquiry

One early paragraph says,“In particular, my Administration seeks to promote free and open debate on college and university campuses.  Free inquiry is an essential feature of our Nation’s democracy, and it promotes learning, scientific discovery, and economic prosperity.  We must encourage institutions to appropriately account for this bedrock principle in their administration of student life and to avoid creating environments that stifle competing perspectives, thereby potentially impeding beneficial research and undermining learning.”

Again, it may sound good, but this order ties “free and open debate” to federal funding for research and other projects. It requires the Director of the Office of Management and Budget to work with the appropriate university offices to ensure free speech is allowed – and THEN the schools will get funding. How this will happen is unclear. How will either the federal government or the university “appropriately account” for this?

The Student Press Law Center, in a news release published March 23, wrote: “We are concerned that the Order does not sufficiently define ‘free inquiry’ nor does it provide any clear process for evaluating fair implementation.  Such lack of definition could lead to administrative standards being developed or arbitrarily implemented which chill free speech or inquiry, or which might be used to advance specific political agendas.”

Colleges and universities – and, according to many of their mission statements, high schools, too – are places students should learn to use their minds, to gain critical thinking skills and to become better citizens in a democracy.

More than a year ago, David L. Hudson, First Amendment Scholar, wrote the following for the Freedom Forum Institute website: 

“Free speech at public universities and colleges is at once the most obvious and the most paradoxical of constitutional principles. It is obvious because given the nature of academic inquiry, only an open, robust and critical environment for speech will support the quest for truth. 

“At the same time, universities are at once communities that must balance the requirements of free speech with issues of civility, respect and human dignity. They are also part and parcel of the larger social order with its own, often competing set of values.”

Whether the latest executive order or various state bills have successfully found this balance remains to be seen. But we, as educators – and especially as journalism educators — need to keep our eyes on the parameters others are putting on students’ free speech. Just because it says it’s protecting and promoting student voices and student thought, doesn’t necessarily mean it is. 

That might be too good to be true.