On Tuesday, October 3, the Office of the President and the Government Department hosted “Free Speech on Campus,”a panel discussion. Following opening remarks from President Wippman about the role of free speech and the First Amendment at Hamilton, Professor Rob Martin introduced the panelists.
Professor Rodney Smolla is the dean of Widener University Delaware Law School and author of Free Speech in an Open Society. Professor Bryan Fair is the Thomas E. Skinner Professor of Law at the University of Alabama Law School and is on the board of the Southern Poverty Law Center. Ari Cohn is the director of the Individual Rights Defense Program at the Foundation for Individual Rights in Education. It was a pleasure to have a balanced panel with a strictly academic perspective and both liberal pundits and a more conservative one.
Smolla began the discussion by outlining the two frameworks free speech discussions usually occupy–the “marketplace” theory and the “order and morality” theory. Under the marketplace theory, pushed by Supreme Court justices Oliver Wendell Holmes and Louis Brandeis, society should tolerate all speech, even hate speech, even if it is generally viewed as crass or cruel by most of society. A major argument here is that if a government body restricts evil speech, the evil speech, and the people who spew it, only become more powerful. The order and morality theory, on the other hand, posits that a decent society has the intelligence to judge for itself which speech has a plausible claim to attention and which speech is pure evil. In judicial history going back many decades now, the marketplace theory has won – the government generally cannot restrict speech even if it is hateful.
The complication Hamilton College and other colleges face is that although the marketplace theory has replaced the order and morality theory in the public sphere, the order and morality theory has the most traction on college campuses and similar small communities. Professor Smolla went on to say that each of the two theories has a time and place. In relationships with coaches and professors, and sometimes in the classroom, the marketplace theory often takes precedence. In most social scenarios, the order and morality theory holds.
Ari Cohn spoke next, about his work, protecting individual rights on campuses. He began by making clear that we do not have the idyllic free — speech situation in this country, as most liberal pundits would have us believe. His main example was that our speech is censored in the workplace. Cohn also stressed that we need to protect the expression even of hate speech, because free speech has often been the strongest tool of minority and oppressed groups to fight the status quo. Driving racism and hate speech underground has not eliminated those people in the cases Cohn cited: the racism, he said, only grew stronger. He offered this advice to colleges: Allow the “idiots” spouting hate speech to continue, argue with them, and offer support and counseling to those who are negatively affected by their words.
Professor Bryan Fair concluded the presentations with a call to change speech laws. In agreement with Cohn, he cited numerous cases where jurisprudence has drawn a line in the sand to say what kind of speech is acceptable. Fair argued for moving the line to include less hate and require more tolerance.
While all three panelists spoke well about free speech and engaged in a very civil discussion (falling quite short of actual debate), Cohn offered the most realistic advice for Hamilton College. Over the next month, there will be numerous (and necessary) lectures and presentations about free speech on campus. Hamilton should promote an environment in which students and professors are free to express contrarian beliefs, and an environment where we are free to call them idiots.