Private Universities and the First Amendment

Abstract

This Article questions whether private colleges and universities should act as though the First Amendment applies to them in the same way it constrains the policy of public colleges and universities. Specifically, the Article examines the common suggestion—by laypersons, lawyers, and scholars alike—that private universities ought to tolerate offensive, hateful, bigoted speech because the values animating First Amendment jurisprudence are similar to those guiding the decisions of good universities committed to free inquiry and the open exchange of ideas. It then notes that this suggestion, while commonly made, is rarely defended with much rigor or vigor. The Article next marshals arguments in opposition to the suggestion—including evidence that some of the sort of speech protected by the First Amendment at public universities may well hinder free inquiry and inhibit the open exchange of ideas. The Article concludes with the modest claim that if policymakers and scholars want private universities to voluntarily assume onerous free speech obligations imposed by the Constitution on public universities, they should at least consider whether the benefits of such obligations truly outweigh the harms.

Keywords: First Amendment, free speech, campus speech, race, white supremacy, alt-right, education, higher education, hate speech, academic freedom