The Fair Speech Doctrine

*This article analyzes free speech on college campuses descriptively and recognizes that public institutions and private ones in California because of Leonard’s Law may be precluded from adopting this prescription*

Free trade and free speech theoretically even the playing field for all participants, encouraging a robust exchange of ideas, peoples and products. But in practice, these endeavors in the name of freedom often retrench privilege, holding grave implications for those left behind in our global society and economy.

Fair speech on a college campus, much like fair trade, seeks to engage with the world beyond borders, but in a manner with preconceived parameters conducive to collective development and empowerment. Thus, free speech’s laissez faire approach to discourse ought to be replaced by a commitment to fair speech.

Because of the various connotations evoked by the buzzwords “free” and “fair,” let’s first dispel possible interpretations of fair speech.

Fair speech in practice does not equate to an equal playing field for the forces of hate to spar with our norms of tolerance and respect. To provide a platform for the marginalized to speak only to compel them to defend their existence and collective history of oppression poses as intellectually and morally dishonest. Already, speakers from underrepresented communities confront great marginalization and worse when voicing their thoughts on stage, such as Princeton professor and author Keeanga-Yamahtta Taylor facing death threats after speaking at a commencement ceremony decrying racism and militancy. Nor does this theory amount to a tit-for-tat experiment in which for every Milo Yiannopoulos banned by a “liberal campus,” a conservative campus reserves the right to ban speakers such as Barack Obama, whom one campus attempted to disinvite.

Instead, in her 2010 work Unspeakable, author and feminist Betty McLellan defines the term “fair speech,” as “expand[ing] the idea of ‘free speech’ to incorporate the concept of justice.” In the context of this discussion, I build upon this concept to provide guidelines for the applicability of fair speech to the realm of a college campus.

Ultimately, fair speech sets clear parameters for discourse. And to trace the roots of this discourse and its role in these academic spaces, first we must evaluate the purpose and historical context for the university. The word "university," derives from the Latin universitas magistrorum et scholarium, which roughly means "community of teachers and scholars.” This definition encompasses the two aims of the historical and contemporary university: to tie students closer to one another and to knowledge. Specifically, fair speech would establish the parameters for discourse on a college campus to uphold the two principles outlined above and thus discourage speech that jeopardizes students relationships to one another and the truth.

How do the aims of the historical and contemporary university inform the roles of free and fair speech?

Discourse according to this formula would inevitably preclude certain types of expression, such as hate and violence-inducing speech, which would violate the community clause. Moreover, more insidious forms of speech, such as Charles Murray’s widely discredited pseudo racial science, that divide communities by appealing to falsehoods violate both the intellectual and community-centered standards. Screenings of speech such as this could be established based on subject matter for the discussion and past precedent for the speaker.

Yet this commitment to dialogue must avoid disingenuous appeals to logic, discourse and freedom. For example, after many students disrupted the presentation of Charles Murray on campus, University of Michigan students replied in an op-ed to the Washington Post, writing: “But we invited him because we feel it is important to make an unequivocal statement that we believe universities should remain bastions of civil debate and tolerance. We want our school to be a place where people of different ideas and backgrounds can genuinely learn from one another.” Examples such as Michigan reveal the tendency of free speech to prioritize sensationalism over sensibility. Testing student’s ability to sit quietly and behave while listening to the likes of Charles Murray represents a bastardization of the notion of the university as a forum for discussion and debate. Instead, universities must reject this sensationalism in favor of providing concrete opportunities for substantive and productive enlightenment and discourse outside of the classroom.

Once universities coalesce around the common goal of productive dialogue and sift through speakers and ideas clearly in violation of the principles of community and knowledge, the search for constructive engagement begins. I believe that the university ought to promote the notion that ideas ought not to be voiced in a vacuum. Two concrete means to achieve this ideal represent panel discussions and robust Question and Answer sessions to progress from ideology to interaction and from soundbites to substance. Yet the very substance of these ideas lies on the table as well. Veering from subjects such as “the myth of white privilege” to critical discussions of racial relations in the past and present represents a growing commitment to productive conversations and a welcome respite from sensationalism.

In the wake of campus shutdowns and fierce debates, some may characterize this fair speech doctrine as one that sanctions censorship and coddling. For example, a Washington Post article cites a Higher Education Research Institute study that shows that 71% of first year college students think that colleges should prohibit racist/sexist speech on campus to justify the assertion that “Maybe conservatives are right to freak out about illiberal lefty militancy on college campuses.” Despite roughly 60% or more of students holding this same view since 1992, the inception of this study, this article cries wolf when the real wolf lies in those who float racist or sexist speakers or ideas to promote controversy in academic and community-centered spaces. As Colby Professor Arron R. Hanlon puts it, “The real intellectual crisis in higher education is not over free speech, but the quality of speech.”

Over two centuries ago, George Washington referred to the Senate as a saucer that cooled the hot tea of the more partisan and visceral House of Representatives. Fast forward to 2018 and in a House divided, where bigotry and misinformation swirl around the globe, the university ought to project itself as its own saucer, one removed from some of the furors and falsehoods engulfing the world and one committed to respectful and productive dialogue – one committed to fair speech.