The First Amendment guarantees “freedom of speech,” not freedom “from” speech. A progressive union, the American Association of University Professors, seems to have forgotten this, in its recent endorsement of certain forms of campus censorship.
The AAUP criticizes campus free-speech legislation because it would disproportionately benefit conservatives, who are often subjected to campus censorship. Free-speech bills, it complains, “are tailored specifically to respond to the kinds of incidents that have affected conservative speakers,” and “rarely address other constraints on campus free speech, such as the recording of professors in classrooms or professor watch-lists.”
What it characterizes as “constraints” on free speech actually are exercises of free speech. Courts have consistently ruled that recording an incident is itself a form of expression for First Amendment purposes. As a federal appeals court noted in Fields v. City of Philadelphia (2017), “every Circuit Court of Appeals to address this issue… has held that there is a First Amendment right to record police activity in public.” Similarly, criticism of professors — such as professor watch-lists — are forms of protected speech. Criticism of college officials is protected speech, unless it contains “overt threats,” as a federal appeals court made clear in Barnes v. Zaccari (2012). Professor watch-lists do not contain any hint of violence, but even if they were in fact vitriolic, they would still be protected speech — for example, an article in a campus publication yearning for the death of a college president was held to be protected speech in Bauer v. Sampson (2001), which ruled that it could not be punished under the college’s policy against “workplace violence.”
It may be true that free speech on campus disproportionately benefits conservatives. After all, they are more likely to be censored, due to the unpopularity of conservative views among campus administrators, who are overwhelmingly progressives. But this is not a valid argument against protecting such speech. As one journalist observed, “Free speech is meant to protect unpopular speech. Popular speech, by definition, needs no protection.” As a legal web site notes, “The First Amendment seeks to protect unpopular forms of speech.” As the Supreme Court explained in NAACP v. Button (1963), whether speech is protected does not turn on whether it lacks “popularity.”
The AAUP claims that equal First Amendment rights for conservatives will only “disempower public higher education.” Rather than legislation increasing penalties for First Amendment violations, which will supposedly create a “litigious atmosphere,” America’s “colleges and universities should decide their campus policy,” without any “interference.”
Allowing colleges to punish students for conservative or religious views undermines, rather than promotes, the purpose of higher education. As the Supreme Court explained in Rosenberger v. Rector of the University of Virginia (1995), in overturning a restriction on religious speech that the AAUP supported, for a “university, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the Nation’s intellectual life, its college and university campuses.”
Nor is the AAUP correct that the First Amendment leaves state “colleges and universities” free to “decide their campus policy” about free speech, such as whether to protect the rights of conservative speakers. As the Supreme Court noted in Healy v. James (1972), “state colleges and universities are not enclaves immune from the sweep of the First Amendment.”
The AAUP’s President, Rudy Fichtenbaum, often complains about conservatives making earmarked donations to support higher education and scholarly research, which he views as undermining leftwing control of higher education. In his mind, such laudable activity should be squelched in the name of “shared governance,” as he put it in a commentary in which he also denounced a 2010 Supreme Court decision vindicating First Amendment freedoms.