From left, Bryan Fair of the University of Alabama Law, Ari Cohn of FIRE, Hamilton Professor Robert Martin, and Rodney Smolla of Widener University Delaware Law School, participate in a panel on free speech.

Though the First Amendment does not technically constrain private institutions in their rules about free expression and speech, many still question the extent to which free, and even hateful, expression should be tolerated on college campuses. Even though the Hamilton administration could technically shut down every campus media publication tomorrow if it disagreed with their material, a general communal and institutional validation of free expression precludes the administration from doing so.

On Oct. 3, several distinguished scholars in the field of free speech jurisprudence gathered to discuss the implications of free speech restrictions at both the national and college campus levels. They included Rodney Smolla, dean of Widener University Delaware Law School; Bryan Fair, Thomas E. Skinner Professor at the University of Alabama Law School and Southern Poverty Law Center Board of Directors member; and Ari Cohn, director of the Individual Rights Defense Program at Foundation for Individual Rights in Education. Government Chair and Professor Robert Martin moderated the discussion.

Though the panelists disagreed on the extent to which governments and private institutions should restrict free speech—and in particular, hate speech—the panelists all converged on the idea that over-restriction of speech would inevitably result in a Machiavellian scenario in which citizens might accept the government or institution's assessments as to what is and is not acceptable speech, but then would despair when a political radical comes into power.

On one hand, Cohn argued most strongly in favor of free speech protections, citing both constitutional and practical reasons why the acceptance of (even abhorrent and offensive) speech is always preferable to censorship.

For example, categorically rejecting certain types of speech not only fails to mitigate its effects, but also strengthens the impact and weight of that speech. In other words, we can mitigate the negative effects of hate speech by allowing rather than condemning that language because the former strategy draws more attention to the speech than the latter.  

On the other hand, Fair asserted that we don’t have free speech in the way that we commonly conceptualize it since speech can and is restricted by the government in various ways. Given this, he asserts that we should consider hate speech among the types of speech that can and ought to be restricted by the government (or institution) since its proliferation directly impacts the lives and capabilities of innumerable people (and students) across the country.

Between these two ideological poles, Smolla contends that there are some instances and situations in which speech on college campuses can and should be restricted by the institution since students are there with the purpose of engaging in scholarly and rational debates. However, Smolla also sees instances where administrators cannot rationally limited speech on college campuses since doing so effectively closes doors on the liberal discussions that institutions of higher education purport to facilitate.

Though the intricacies of the free speech debate may evolve in the legal field over time, we might consider Fair’s suggestion when students make questionable statements. The institution’s administration should “clearly enunciate the values and principles upon which [the institution] is founded and stands” so that the most vulnerable students feel supported and so that the institution is aware of the various competing forces at play in imposing restrictions on expression.

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