The Scope of Protection for Speech at the University--A View From the University of Chicago

(Pix (c) Larry Catá Backer 2015)

I have been considering the complications of both civility (Here) and academic freedom (e.g., Here and Here). Most institutions have expended a tremendous effort to avoid the issues (see, e.g., here, and here) or to redirect the conversation in ways that suit their own internal agendas (see, e.g., here).  Some institutions, public, have sought to build walls of constraint on faculty expression--privileging faculty status as university servants over their role as citizens in a democratic republic (see, e.g., here and here). 

In the case of Steven Salaita it has conflated issues of protection for speech and the constraints of civility to produce an ongoing and politically polarizing context.  (See here). The resulting intervention by a university committee would reject civility as a governance standard, while permitting the university to bring civility in through the "back door" by using evidence of incivility as circumstantial evidence of inability to meet professional academic standards. 

A committee of the University of Chicago has now also sought to add its institutional intervention to this conversation. Report of the Committee on Freedom of Expression (Jan. 2015).  The Report explains:

The Committee on Freedom of Expression at the University of Chicago was appointed in July 2014 by President Robert J. Zimmer and Provost Eric D. Isaacs “in light of recent events nationwide that have tested institutional commitments to free and open discourse.” The Committee’s charge was to draft a statement “articulating the University’s overarching commitment to free, robust, and uninhibited debate and deliberation among all members of the University’s community.”
The Committee has carefully reviewed the University’s history, examined events at other institutions, and consulted a broad range of individuals both inside and outside the University. This statement reflects the long-standing and distinctive values of the University of Chicago and affirms the importance of maintaining and, indeed, celebrating those values for the future. (Report of the Committee on Freedom of Expression , supra, pp. 1)

This Statement has already received an important endorsement--from the Foundation for Individual Rights in Education (FIRE (FIRE Endorses University of Chicago’s New Free Speech Statement, Jan. 7, 2015).

The text of the Report follows, along with some comments on this effort.  While the University of Chicago provides a useful set of general principles, it may be less useful generally in two respects.  First, it provides little institutional guidance for implementation, especially for public universities.  Second, the University of Chicago was careful to note that the statement reflected its distinctive values--and by implication suggested that other universities may be (legitimate) values different from that of the University of Chicago that might merit some deviation from the broad principles developed for a first tier private university educating the children of global elites.

Report of the Committee on Freedom of Expression

The Committee on Freedom of Expression at the University of Chicago was appointed in July 2014 by President Robert J. Zimmer and Provost Eric D. Isaacs “in light of recent events nationwide that have tested institutional commitments to free and open discourse.” The Committee’s charge was to draft a statement “articulating the University’s overarching commitment to free, robust, and uninhibited debate and deliberation among all members of the University’s community.”

The Committee has carefully reviewed the University’s history, examined events at other institutions, and consulted a broad range of individuals both inside and outside the University. This statement reflects the long-standing and distinctive values of the University of Chicago and affirms the importance of maintaining and, indeed, celebrating those values for the future.

From its very founding, the University of Chicago has dedicated itself to the preservation and celebration of the freedom of expression as an essential element of the University’s culture. In 1902, in his address marking the University’s decennial, President William Rainey Harper declared that “the principle of complete freedom of speech on all subjects has from the beginning been regarded as fundamental in the University of Chicago” and that “this principle can neither now nor at any future time be called in question.”

Thirty years later, a student organization invited William Z. Foster, the Communist Party’s candidate for President, to lecture on campus. This triggered a storm of protest from critics both on and off campus. To those who condemned the University for allowing the event, President Robert M. Hutchins responded that “our students . . . should have freedom to discuss any problem that presents itself.” He insisted that the “cure” for ideas we oppose “lies through open discussion rather than through inhibition.” On a later occasion, Hutchins added that “free inquiry is indispensable to the good life, that universities exist for the sake of such inquiry, [and] that without it they cease to be universities.”

In 1968, at another time of great turmoil in universities , President Edward H. Levi, in his inaugural address, celebrated “those virtues which from the beginning and until now have characterized our institution.” Central to the values of the University of Chicago, Levi explained, is a profound commitment to “freedom of inquiry.” This freedom, he proclaimed, “is our inheritance.”

More recently, President Hanna Holborn Gray observed that “education should not be intended to make people comfortable, it is meant to make them think. Universities should be expected to provide the conditions within which hard thought, and therefore strong disagreement, independent judgment, and the questioning of stubborn assumptions, can flourish in an environment of the greatest freedom.”

The words of Harper, Hutchins, Levi, and Gray capture both the spirit and the promise of the University of Chicago. Because the University is committed to free and open inquiry in all matters, it guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn. Except insofar as limitations on that freedom are necessary to the functioning of the University, the University of Chicago fully respects and supports the freedom of all members of the University community “to discuss any problem that presents itself.”

Of course, the ideas of different members of the University community will often and quite naturally conflict. But it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, how ever offensive or disagreeable those ideas may be to some members of our community.

The freedom to debate and discuss the merits of competing ideas does not, of course, mean that individuals may say whatever they wish, wherever they wish. The University may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University. In addition, the University may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the University. But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions never be used in a manner that is inconsistent with the University’s commitment to a completely free and open discussion of ideas.

In a word, the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or
wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose. Indeed, fostering the ability of members of the University community to engage in such debate and deliberation in an effective and responsible manner is an essential part of the University’s educational mission.

As a corollary to the University’s commitment to protect and promote free expression, members of the University community must also act in conformity with the principle of free expression. Although members of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe. To this end, the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.

As Robert M. Hutchins observed, without a vibrant commitment to free and open inquiry, a university ceases to be a university. The University of Chicago’s long-standing commitment to this principle lies at the very core of our University’s greatness. That is our inheritance, and it is our promise to the future.


Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law, Chair

Marianne Bertrand, Chris P. Dialynas Distinguished Service Professor of Economics, Booth School of Business

Angela Olinto, Homer J. Livingston Professor, Department of Astronomy and Astrophysics, Enrico Fermi Institute, and the College

Mark Siegler, Lindy Bergman Distinguished Service Professor of Medicine and Surgery

David A. Strauss, Gerald Ratner Distinguished Service Professor of Law

Kenneth W. Warren, Fairfax M. Cone Distinguished Service Professor, Department of English and the College

Amanda Woodward, William S. Gray Professor, Department of Psychology and the College

 The Report is notable for its formal narrowness.  The Committee appears at great pains to tie the principles it derives from the political-legal culture of the United States to the precise habits and history of the University of Chicago as a place apart--an elite place apart. They are even more careful to draw that history through the actions, courageous to be sure, of its many distinguished presidents. Those actions, stretching more than a century, ought to be a source of pride.  It is also a strong source of tradition and practice that becomes central to the articulation of the University of Chicago's core principles of speech. 

We can all share the pride of the Committee in the consistent and strong defense of speech in the service of the academy and our Republic.  But we can do that only at a distance.  For there are other institutions where the courage of their respective presidents have been less in ev9idence, and other institutions where there is a sense that the needs of speech must be cabined by other principles--civility, public purpose, and the like.  The Committee offers little but their example as a basis of the principles they adopt.  And that narrowness carries with it the implication that other universities might balance speech principles against other principles in a plausible manner, but with very different results. The Committee offers a convincing explanation of why speech matters at the University of Chicago; it offers precious little about why it should be valued generally in the academy (except indirectly by those who see value in emulating the University of Chicago).

Yet the principle espoused by the Committee is worth wide embrace. It is a principle of robust protection of speech, whatever its form or content, and where ever offered, subject only to two categories of restrictions. The first consists of a transposition of the narrowest, constitutionally compelled limitations on speech--"restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University." (Report, supra). The second goes to the protection of the core integrity of the institution of the University--"reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the University." (Report, supra). Though these exceptions might be broadly applied to narrow the effectiveness of robust speech, the Committee was clear that both be "never be used in a manner that is inconsistent with the University’s commitment to a completely free and open discussion of ideas."  (Report, supra).

While there will no doubt arise issues at the margin, the principles adopted ensure that the center of discussion focuses on the privileged value of speech at the university balanced only against the dignity interests of individuals and the integrity interests of the university itself.  Tghis balancing is underlined in the Report.  

On the one hand:

In a word, the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose. (Report, supra).

And on the other:

Although members of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe. (Report, supra).

The consequence produces a "solemn responsibility" on the part of the University of Chicago to protect the most loathsome and controversial speech even against those infuriated by that speech who seek active counter speech activities.   That obligation is almost the polar opposite of that adopted by other institutions, including for example, by the Trustees of the University of Kansas (see HERE). 

While the Report is long on principle--and sound principle at that--it is somewhat less helpful on operationalization.  We come closest in only two respects--the proffer of history and the articulation of the university's "solemn responsibility" to protect. With respect to the former, it appears that discretion lies almost completely with senior administration for the protection of speech, especially as against outsiders.  The proffer of history is a retelling of courageous defenses of speech by University of Chicago Presidents.  There appears to be no shared space for the protection of speech beyond the office of the president.  That may work well at a place like the University of Chicago with its rich traditions of presidential protections of speech (and thus of the University's reputation as an elite educational institution). Presidential responsibility, then, suggests the contours of the university's "solemn responsibility."  It is essentially an administrative responsibility, and one vested in the first instance in the office of the President.  But there are few mechanics for invoking this responsibility and little by way of process for assessing presidential choices.  That may well work at the University of Chicago, it is unlikely to work as well at many public and publicly assisted universities, even within the Committee on Institutional Cooperation (CIC) community, of which the University of Chicago forms an important part.  Perhaps the University of Chicago's leadership will prove effective in guiding the responses of other CIC  schools--Penn State, Northwestern, Ohio State, Indiana, Purdue, etc. But it is as likely that at the larger state and state assisted universities, more robust systems of accountability might be necessary to ensure  adherence to the principle.  And indeed, in some of these institutions, adherence to the principle may well be in doubt (see e.g., here and here).  

For all the the Report from the University of Chicago has shown a way toward understanding the scope and necessity of speech protections for faculty (especially) within the university.  It is to be hoped that this Report serves as a source of inspiration, and that its principles, contextualized for applying institutions, becomes better accepted within at least the CIC.