Yale Law Professor Discusses Free Speech on Campuses in Talk at Dartmouth

  • Yale Law School professor Robert Post gives the speech “What We Get Wrong About Free Speech and the University” at Dartmouth College on April 12, 2018. (Mark Ostow photograph)

Valley News Staff Writer
Friday, April 13, 2018

Hanover — As colleges and universities across the country debate whether to allow controversial speakers on campus, one legal scholar says professors’ and politicians’ calls for “free speech” are misguided.

Institutions of higher education are not bound by the First Amendment, Yale Law School Professor Robert Post said on Thursday.

In fact, colleges must regulate speech and screen content if they’re going to educate well-informed citizens, Post told about 30 professors and students gathered at Dartmouth College’s Halderman Center.

“The university is not a public space, it’s not a public sphere, it’s an institution with a mission,” said Post, a former dean of Yale Law School who specializes in constitutional law. “And either we accomplish that mission or we don’t.”

Both liberal and conservative politicians and writers recently have argued that the First Amendment and free speech is under attack, as some institutions cancel speakers deemed too controversial, and those who are allowed to appear are protested and shouted down.

“That’s the way in which this conflict is framed — First Amendment rights versus whatever reasons universities have for regulating speech,” Post said, adding that case often is made without first understanding the constitutional right.

The First Amendment, as it’s now interpreted, first came to be during the Gilded Age, as citizens felt cut off from their elected officials, who were deemed only responsive to big corporations, Post said.

At the time, he said, legal scholars began to argue that for the public to participate in government, their voices needed to be able to influence public opinion.

“Your freedom of speech — the freedom to participate in the formation of public opinion — is what guarantees the United States as a democratic, self-governing nation because the state is responsive to the public opinion that you helped form,” Post said.

In response, he said, the courts established that the government cannot discriminate based on the content of speech. It also has to treat all ideas as equal and cannot coerce people into talking or supporting a message, Post said.

“Most of our life, these rules don’t apply. These are extreme rules,” he said, adding that speech also is regulated in many legal ways.

For instance, Post said, doctors can be sued for misdiagnosing a patient. The same goes for lawyers who offer bad legal advice, he said.

Regulated speech also is allowed and necessary at colleges, Post said, where students are provided with materials that are screened for their educational value and are forced to partake in tests and exams that evaluate their knowledge of subjects deemed appropriate.

The regulation of speech also is necessary for open discussion, Post argued, adding administrators have a duty to think first of educational value when scheduling speakers.

“You can’t be educated if you’re calling each other names. You can’t be educated unless people are showing respect for each other in the university,” he said of recent incidents on college campuses. “Education and respect go together.”

Faculty and students at Dartmouth pressed Post on First Amendment rights, asking whether public, not just private, universities have a right to censor or regulate speech.

One professor asked whether state-run colleges would be subject to restrictions set forth in the 1977 Supreme Court case Wooley v. Maynard, where justices ruled that New Hampshire cannot coerce speech by making residents use “Live Free or Die” on state license plates.

While universities largely are protected from government interference, Post said, professors and students are not given the same level of protection from the schools.

Post also met resistance from Joe Asch, a 1979 Dartmouth alumnus who runs Dartblog.

Would it pose a First Amendment problem, Asch asked, if a university president were to cancel an upcoming speech by Charles Murray, author of the 1994 book The Bell Curve?

The book suggests a link between a person’s race and their intelligence.

“And not only that,” Asch continued. “(The president) says, ‘This is a racist book. We want to clean the library out of these books, and we’re going to make a big pile out in front of the library and burn every book that supports this kind of racist idea.’ ”

“No First Amendment problem, but (there is) a real educational problem,” Post said.

That hypothetical university president would be signaling to students that they no longer have independence and will only hear or read what the administration wants, he said.

Between 100 and 150 students at Middlebury College attempted to prevent Murray from speaking at the liberal arts school last March, shouting him down and pulling fire alarms when his speech was moved into another room.

Masked protesters also began pushing and shoving Murray and his faculty interviewer, Allison Stanger, as they tried to leave the building. Stanger suffered a concussion after someone grabbed her hair and twisted her back, the Associated Press reported.

After the two got into a car, protesters rocked it back and forth, with some jumping on the hood. More than five dozen students were disciplined for the incident.

Post also was asked about whether universities can, or should, ban President Donald Trump from speaking because of his past language and verbal attacks against minority groups.

While he wouldn’t allow any private citizen with such a track record to speak to students, Post said, the president is different.

“When the person’s the president of the United States, he carries such educational importance because he’s the president of the United States,” Post said. “Anyone who lives in this country has got to understand him, and deal with him and deal with the people who support him through thick and thin.”

Post also has heard that some universities view support for Trump as hate speech.

“That can’t be right in any university that seeks to prepare citizens for democracy,” he said.

  Tim Camerato can be reached at tcamerato@vnews.com or 603-727-3223.

Correcti on

Hanover resident Joe Asch inquired whether it would pose a First Amendment problem if a university president were to cancel a scheduled speech by controversial political scientist and author Charles Murray. An earlier version of this story incorrectly reported how Asch framed his question.