Free Speech on Campus: Countering the Climate of Fear

Abstract

Similar to the entertainment industry in the time of the blacklist, a climate of fear has descended on the nation's universities and colleges. It is the fear of being punished, not for what one does, but for what one says. Today, students and faculty frequently refrain from expressing unpopular or “offensive” positions–often conservative, libertarian, or traditional religious positions–for fear of being labeled racist, sexist, homophobic, white supremacist, or of engaging in hate speech. The fear comes in two forms–the fear of being sanctioned by the university or college and the fear of being cancelled by one's fellow students or faculty members. In this article, I argue that these fears result from a set of perverse incentives on campus. I suggest that the only way to counter the fears is by changing the schools' incentive structures. I then show how coupling the addition of a “safe harbor” provision to a school's speech and expression policy with the creation of a pro bono legal organization devoted to the preservation of freedom of speech on campus can effectuate such a change.

Keywords: freedom of speech, harassment, First Amendment, defamation