FREE SPEECH ON PUBLIC COLLEGE CAMPUSES

By Kermit L. Hall[22]

Free speech at public universities and colleges is at once the most obvious and the most paradoxical of constitutional principles. It is obvious because given the nature of academic inquiry, only an open, robust and critical environment for speech will support the quest for truth. At the same time, universities are at once communities that must balance the requirements of free speech with issues of civility, respect and human dignity. They are also part and parcel of the larger social order with its own, often competing set of values.

Public universities ar particularly rich grounds for conflict over matters of speech. They bring together persons with often strongly held yet contradictory views. Universities, for example, have their own newspapers, some of which may be operated by the university, by the students or by an off-campus group. Public institutions in their diversity often have students and faculty of different political persuasions, sexual orientations and religious commitments. Moreover, one of the driving concepts of the university campus is academic freedom, the right to inquire broadly, to question and to promote an environment where wrong answers, seemingly absurd ideas and unconventional thought are not just permitted bt even encouraged.

The concept of academic freedom and its connection to freedom of expression received full treatment in the landmark 1957 decision Sweezy v. New Hampshire. In that case, the attorney general of New Hampshire, acting on behalf of the state Legislature under a broad resolution directing him to determine whether there were “subversive persons” working for the state, had charged Paul Sweezy, a visiting lecturer at the University of New Hampshire, with failing to answer questions. The questions were about whether he had delivered a lecture with leftist contents at the university and about his knowledge of the Progressive Party of the state and its members. Sweezy refused to answer those questions, on the grounds that doing so would violate his rights under the First Amendment and the freedom that it provided him to engage in academic pursuits.

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.” In recent times, however, this broad statement in support of academic freedom has come under increasing attack, and ironically that attack has come from the liberal side of the political spectrum that the Supreme Court sought to protect in Sweezy.

Despite that seemingly ringing declaration, th justices have failed to define the exact nature and scope of academic freedom. They have als failed to develop a real constitutional theory to support it. Generally, the concept, as applied to public universities, is rooted in the First Amendment’s concern with free inquiry and promotion of heterodox views that critically examine conventional wisdom.