speak your mind without having to worry about getting in trouble . . . if you can make it in. Maybe this isn’t your fight. You switch off your computer and crawl into bed.
High Schools and Unlearning Liberty
You can’t fully understand what lessons colleges are teaching students about living in a free society without knowing what students have learned before they even step foot on campus. The news isn’t good. By the time they graduate from high school, American students already harbor negative attitudes about free speech. A survey of 100,000 high school students by the John S. and James L. Knight Foundation in 2004 found that 73 percent either felt ambivalent about the First Amendment or took it for granted.1 This should not come as a surprise, given how little high school students learn about free speech rights and how many negative examples they get from administrators.
Lessons taught by example are most powerful, and high school administrators have offered students some of the worst examples of censorship. In the past few years, high school student newspapers have been punished, censored, or shut down on a fairly regular basis not only for being critical of their administrations but also for publishing articles on everything from abstinence education, to the popularity of tattoos among students, to abortion and gay marriage.2 Of course, some lessons are more direct than others. Take, for example, this quote from a high school principal explaining his decision to confiscate an edition of the student newspaper because of an editorial supporting marijuana legalization: “I feel like censorship is very important.” He elaborated, “Court cases support school censorship of articles. And we feel like that’s necessary for us to censor editorials in the best interest of our program and the best interest of our school and community.”3 I believe this statement reflects the opinion of many other high school administrators: not only may a high school censor opinions, but it should do so for reasons ranging from harmony, to patriotism, to convenience.
And here is one of the great truths about censorship: whatever reason is offered to justify a speech code, such as the prevention of bullying or harassment, time and time again the school administration ends up using the code to insulate itself from mockery or criticism. People in power bamboozle the public (in this case, parents and students) into supporting rules that will ultimately be used to protect the sensibilities (or sensitivities) of those in power.
With high school administrative censors claiming the moral high ground, it should be no surprise that the Knight study also found that high school students were far more likely than adults to think that citizens should not be allowed to express unpopular opinions and that the government should have a role in approving newspaper stories.4 After all, if protecting everyone from the hurt and difficulty of free speech is a laudable goal, shouldn’t the government be empowered to do that?
Meanwhile, there is precious little education in the philosophical principles that undergird our basic liberties, which might otherwise counteract these bad examples. Civics has not been stressed at high schools in recent years, and ignorance of the basics of American governance is widespread. In 2009, the First Amendment Center’s survey of knowledge about basic rights found that 39 percent of Americans could not name even one right protected by the First Amendment.5 An online survey by the Bill of Rights Institute in 2010 found that 42 percent of adult Americans identified Karl Marx’s “from each according to his ability, to each according to his needs” maxim as a line from America’s founding documents.6 A more recent large-scale study rated less than a quarter of twelfth graders as having a decent understanding of our system of government.7
A shameful level of civics knowledge, in combination with the miserable state of student rights in K–12, leaves students uninformed about the importance of free speech and distressingly comfortable with censorship. The result is that students show up at college with little idea of what their rights are and even a little unsure if this freedom is a good thing. So before we embark on our college odyssey, there are some fundamentals that every student, and every citizen, needs to know about free speech.
“Seriously, Why Is Free Speech Important Again?”
Many of us are good at paying lip service to freedom of speech, but without having a fully developed idea why we should. Others, especially among academics, view it as a right whose importance is exaggerated and that might even stand in the way of progress. So let’s start with some fundamental questions that seldom get asked these days: Why is free speech such a big deal anyway? And why is it so important in college? Given that the age difference between a senior in high school and a college freshman is sometimes negligible, why should there be any difference in their rights? Isn’t protecting students from offensive or hurtful speech an important goal as well? To most high school students, the answers to these questions are not obvious. They can be found in areas of law, philosophy, and history that are seldom explored by today’s students, or even by high school or college administrators.
In law, there is a stark distinction between the free speech rights of college versus high school students. The law accepts K–12 as a sort of training ground for adulthood and citizenship, but higher education is the big time, with students from eighteen to eighty years old and beyond taking part. The function of high school is preparation, while the function of higher education is nothing less than to serve as the engine of intellectual, artistic, and scientific innovation. Any limit on the expression of college students is understood to endanger the entire academic endeavor. The Supreme Court has recognized this in unusually powerful language, declaring in 1957:
The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. . . . Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die. [Emphasis added.]8
Of course, some kinds of speech are unprotected even under our First Amendment, including child pornography, obscenity (meaning hard-core pornography, not simple swear words), and libel. However, the Supreme Court takes special pains to limit these restrictions to a handful of narrow categories in order to protect as much speech as possible and is hesitant to create new exceptions. Also, state officials, including administrators at public colleges, have the power to place reasonable “time, place, and manner” guidelines on some speech as long as it is done in a “content neutral” way. So a college is within its rights to stop a protest that is substantially disrupting the university. For example, nothing prevents colleges from stopping student takeovers of administrative buildings, from kicking a disruptive student out of class, or from punishing students for trying to disrupt a speech. (Throughout this book, you will see administrators exploit even that humble power beyond recognition.)
The First Amendment guarantees an exceptionally broad range of speech on campus. A unifying theme within First Amendment law is that those in power cannot shut down speech simply because they dislike the views being expressed. This is called “viewpoint discrimination” and it forms the very essence of what we normally mean when we say “censorship.” Despite the First Amendment’s clear prohibitions against singling out certain viewpoints for punishment, however, public campuses do precisely that on a regular basis.
Some of you may be wondering why I keep referring to public colleges and not private ones. The First Amendment does not directly bind private colleges. California is the only state (through a law known as the “Leonard Law”) to apply First Amendment standards to private universities.9 Yet, even though private colleges face different legal obligations than public ones, their actions are governed by their own promises and policies. The overwhelming majority of colleges promote themselves as intellectual centers that place academic rigor, free