Controversy, Danger, and the Challenge of Free Speech on Campus
Last week, our campus hosted a lecture by esteemed scholar Dean Chemerinsky. Speaking about free speech on campus, Chemerinsky outlined the existing laws governing the exercise of free speech at schools around the country. This comes at an appropriate time, wherein Santa Clara University finds itself embroiled in a bitter partisan divide which has manifested itself in numerous instances of hate speech. As partisan animosity and ideological intransigence grips our small community, many have been forced to reconsider the very idea of free speech on campus. With incendiary anti-immigrant posters plastered against our walls (and counterbalancing pro-immigration posters being made in response) and with swastikas smeared in blood on our elevators (and counterbalancing statements from various student groups denouncing racism), we find ourselves asking: what forms of speech should be allowed on campus? How should we respond to hateful, controversial, or offensive expressions? Does the administration have a responsibility to create a safe space for vulnerable students on campus? What students qualify as vulnerable? What students qualify as minorities? Are conservatives considered a minority on our predominantly liberal campus? Must there be steps taken to protect (and perhaps even amplify) this minority viewpoint? What views and ideologies are considered acceptable or permissible? And, fundamentally, should free speech ever be silenced? Many of us find ourselves grappling with these crucial questions, forced to assess whether absolute free speech is truly essential or toxic to a healthy democracy.
In addressing these questions, Dean Chemerinsky brought up some interesting points. Primarily, one must consider the complexities of public vs private schools. Of course, public schools, being government institutions, are legally obligated to protect students’ right to free speech. The First Amendment prevents the government from “abridging the freedom of speech” and, since public institutions are essentially limbs of the government, they must observe the right to free expression. In most states, private colleges are given far greater latitude. Since they are not government entities, these private schools can restrict free speech in almost any manner. However, in the state of California, the Leonard Law mandates that private schools must recognize the right to free speech. Indeed, any private California school must grant First Amendment rights to its students. Thus, Santa Clara University cannot hide behind the defense of being a private institution; under the Leonard Law, SCU’s status as a private entity does not exempt it from abiding by the First Amendment.
Secondly, one must consider what forms of speech are permissible under the First Amendment. Given that Santa Clara must observe the First Amendment, what types of speech is Santa Clara obligated to allow? Well, virtually all forms of speech are protected, except for a few kinds: 1) Inciting illegal activity, 2) true threats, and 3) harassment. Each of these has a specific legal definition, which must be met in order for speech to qualify as prohibited. Additionally, child pornography, slander, libel and some other expressions are banned, but these are largely irrelevant to the present discussion about controversial political statements on campus. Inciting illegal activity, true threats, and harassment seem to be the forms of banned speech most pertinent to the racist, xenophobic remarks we find ourselves confronted with at Santa Clara.
Hence one must ask oneself: do these xenophobic, sexist, or racist posters constitute an incitement to illegal activity, a true threat, or harassment? Well, they are certainly not inciting illegal activity (this would require them to demand the immediate violation of a law, which they do not) nor do they constitute a true threat (this would require that viewers reasonably fear for their safety, which would be difficult to argue since the posters did not suggest that any harm would come to immigrants, women, or members of certain races). Harassment, it seems, is a slightly murkier case. Initially, one might be inclined to say the posters constitute harassment of immigrants and minorities. However, harassment must technically be directed at a particular person or group of people. For example, hanging a noose from a tree in a public park is technically not harassment, but hanging a noose on the door of a black student or at a predominantly black church is certainly harassment. Since the aforementioned posters did not target any specific group but were rather placed all over campus, they cannot be said to constitute harassment. Thus, legally, Santa Clara cannot ban them. If a group pursues the proper channels, it is well within its protections to post that message.
And rightfully so. I am disgusted by the heartlessness embodied in those posters, but I wholeheartedly support their right to express that vicious message. Yes, it is controversial. Yes, it is incendiary. Yes, it is truly hurtful to many members of our community. But that is absolutely no reason to ban the expression of a viewpoint. If a viewpoint makes you uncomfortable, angry, or upset, that is not sufficient grounds for banning its expression or calling for its suppression. Moreover, it is crucially important to distinguish between feeling uncomfortable and feeling unsafe. Some viewpoints make us feel unwelcome, unappreciated, stigmatized, ostracized, or misunderstood—but feeling unwelcome is different from reasonably fearing for one’s physical safety. As an immigrant, I genuinely felt angry and unwelcome after seeing those posters, but I had no valid reason to fear for my safety. Yes, campus should be a safe space—a place where we are protected from danger, not from controversy.