language. Harvard, for example, advertises: “Free interchange of ideas is vital for our primary function of discovering and disseminating ideas through research, teaching, and learning. Curtailment of free speech undercuts the intellectual freedom that defines our purpose.”11 Schools make such promises in part because of the long tradition of freedom of speech on campus, but also because they know that most students will not be interested in attending, most faculty will not be interested in teaching at, and many alumni will stop giving to universities that choose sides on popular debates and silence dissent. Only a comparative handful of colleges, usually deeply religious ones, can get away with advertising themselves as schools that place other values above free speech.
Just like any other business, colleges have to be truthful about how they present themselves. They have to live up to their contractual obligations, and they cannot fraudulently induce people to attend their institutions. When a private college promises free speech, many courts have rightly found this to be binding.
Beyond the Law: The Grand Philosophy behind Free Speech
Learning the state of the law is all well and good, but it only scratches the surface of why free speech is so important. Today, many fall back on circular defenses of freedom of speech that sound something like, “free speech is important because it is protected by the First Amendment.” Far too few of us learn—let alone appreciate—that free speech is a crucial intellectual innovation that allows for peace, prosperity, liberation, creativity, and invention on an unprecedented scale.
While the philosophical case for freedom of speech has been compellingly made by authors as revered as John Milton, John Locke, James Madison, Thomas Jefferson, and Oliver Wendell Holmes, I always recommend the one presented in Jonathan Rauch’s 1993 book, Kindly Inquisitors.12 Rauch saw the West’s mixed and often unenthusiastic condemnation of Ayatollah Khomeini’s fatwa against Salman Rushdie on account of The Satanic Verses as symptomatic of a larger crisis.13 Jimmy Carter, for example, had lamented that the book had “violated” the beliefs of Muslims and caused them “suffering.”14 The chief rabbi of the United Kingdom opined that it “should not have been published.”15 While it was no surprise that a fundamentalist theocrat like Khomeini would so adamantly oppose free speech, it was a relatively new phenomenon that he would find sympathetic voices in the industrialized democracies among people who call themselves political liberals. Something had changed in the 1980s. As scholars advocated the suppression of pornography and “hate speech,” they launched a new, overarching commitment to fighting speech deemed “offensive” to historically disadvantaged groups. Thus, Muslim fundamentalists strangely found common ground with some liberal Western professors: the conviction that “insensitive” speech should be stopped.
So, what’s the big deal? What’s really at stake?
Everything.
If you take a step back and view history broadly, you see that free speech is an essential component of how we order our society and how we come to decide what is true or false. As Rauch explains, the intellectual system that gave birth to the Enlightenment—which in turn gave birth to the American economic and political system—has been around so long and has been so successful that we don’t even have a name for it. Rauch calls this system “liberal science.” (For conservatives reading this, don’t get too worried—he means “liberal” in its nineteenth-century sense, which was all about greater freedom and less control by government.) Often equated with the scientific method, this intellectual system is actually much broader, and possibly the most radical and brilliant system ever devised for resolving disputes and inching closer to the truth. Other systems too easily result in stagnation, ignorance, and oppression, or in division, tribalism, and warfare.
A society has to choose methods of settling disputes or deciding what is true, and the options are not infinite. Historically, the most common system for resolving these disputes was what Rauch labels “fundamentalist,” which is based on the supremacy of authority. Some people may associate “fundamentalism” with religion, but Rauch explains it as a broader refusal by those in power to recognize (at least publicly) the possibility that they might be wrong. Governments and social structures that relied on different kinds of “fundamentalist” systems dominate the world’s bloody history. Islamic theocrats, the pharaohs of Egypt, the emperors of China, the divine-right kings of Europe, the head priests of the Mayans, Stalin, and Hitler have all ruled with the conviction that they were uniquely attuned to the truth. Most importantly, a fundamentalist system places knowledge and the search for truth in the hands of the few—an order with horrible drawbacks. The history of fundamentalist systems at their worst is characterized by arresting and punishing or even wiping out people who disagree, often in defense of calcified ideas and often in pursuit of power for its own sake.
An alternative system is one in which all opinions are more or less equal. This is an asinine system because people believe contradictory things and everyone cannot be right at once. Two plus two equals four; people who say otherwise are wrong. Believing that all opinions must be protected allows for a flowering of rich debate, discussion, and artistic expression, but believing all opinions are true leads to nonsense. Unfortunately, a lot of students these days fall into this kind of uncritical relativism—in part because they are afraid of punishment, whether official or merely social, if they debate or disagree.
Among the scores of examples of mindless relativism on campus that I have seen, the one that haunts me the most comes from personal experience. During my time at Stanford Law School, when I took International Human Rights Law with Professor Thomas Ehrlich, there was a constant tension in the class between the value of human rights and a potent cultural relativism that insisted we had no right to judge the norms of other cultures. One day in class, this relativism was challenged by discussion of the practice of “female circumcision,” the euphemistic term for female genital mutilation (FGM), which in its various forms involves tearing or cutting out all or part of a girl’s clitoris or labia. The World Health Organization has rightfully described FGM as a horrific human rights violation, affecting between 100 and 140 million girls and women worldwide, according to the research.16 Nevertheless, one of my classmates disagreed that we should condemn it. The student was not a Muslim from a country that practiced FGM, but rather a white, probably upper-middle-class woman. She argued that there was no way we as Westerners could understand the “beauty” of this practice and its cultural meaning and therefore we should not oppose it. I was stunned by how few people in the class were willing to challenge her. She had evoked the “beauty” of another culture, and by some strange social compact we were not allowed to challenge that argument. Of course, perfect relativism makes it impossible to decide anything. But the class wasn’t canceled due to our newly discovered nihilism; instead, double standards became a virtual necessity. The very same student would thunder against far less horrific abuses as long as they were committed by people in America. A commitment to the idea that all opinions are largely equal is distressingly popular on campus, at least when someone wants you to drop your argument so they can make theirs. “Selective relativism” is a convenient tactic that educated people use over and over again to shut down debate and discussion, from the classroom to the cocktail party.
Another organizing principle that Rauch considers is the “radical egalitarian principle,” which says that all opinions have equal claim to respect, but the opinions of “historically oppressed classes or groups get special consideration.” There is also the “humanitarian principle,” which can be combined with the relativist or fundamentalist systems, with the caveat that the first priority is to “cause no hurt.” The radical egalitarian and the humanitarian principle are both especially seductive on campuses, where they are commonly used to silence the very discussions a society most urgently needs. After all, most serious discussions may involve facts or ideas that someone could claim are “hurtful.” Yes, some words are genuinely hurtful. But colleges too often call upon some form of the humanitarian principle to justify speech codes that are then used to punish mild speech that simply annoys the administration. In this way, they manipulate students into supporting their own censorship.
The “liberal science” system, developed slowly over centuries,