A little while ago, Brian Tamanaha on Balkinization raised the question of what is the right response where professors insult in class; his post began as follows [with some added links]:

The November issue of National Jurist has an article about a recent spate of law professors getting into trouble for comments inside or outside of the classroom that apparently offended students. According to the article, a Wisconsin professor made comments about Hmong men [IHT] in the context of discussing cultural practices that might be invoked as a defense against criminal charges. A Quinnipiac professor sent an email to students on his distribution list that “derided� them “for their concepts of how poor people and ethnic minorities are represented within the American legal system� [Quinnipiac Chronicle]. A John Marshall professor was reprimanded for asking a Jewish student “whether his religious training contributed to Jews passing the bar at higher rates than African Americans� [De Paul]. The article did not mention the most recent example of such controversy, involving a professor at Connecticut who showed a film in class, pausing at a scene that offended a few of the students [Law.com].

I was reminded of this as I listened last night to Dean Rod Smolla‘s Inaugural Lecture at WLU (poster above) on

Freedom of Expression and Religion on the Modern Campus: Academic Freedom at Public and private Universities

His basic theme was that First Amendment doctrine is capable of explaining and guiding the development of the principles of academic freedom in the modern American university. He began with an anecdote about Albert Einstein invoking academic freedom in confronting student revolutionaries in Berlin in 1918. It is a principle which inheres in what it means to be a university and which modern US universities have inherited from their European forebears and have then refracted through such US quintessences as the Bill of Rights. To illustrate the importance of the concept of academic freedom, he posed a series of hypotheticals implicating various conceptions of academic freedom, and argued that, whether the university is public or private, the best source for resolution of these hypotheticals (largely inspired by relevant case-law) is the First Amendment. And so he provided a fascinating primer on modern basic First Amendment doctrine.

Smolla began his overview by dividing current US free speech law between those principles that apply in the general marketplace of ideas and those that carve certain issues out of the marketplace and regulate them on the basis of specific rules rather than the general applicable First Amendment principles. He argued that the general marketplace of ideas involves several generally applicable principles. He began with three:
– the Neutrality Principle, which ensures that government cannot discriminate between speakers on the basis of the content of their speech or the viewpoints they express;
– the Emotion Principle, embodying the notion that the protections for speech are not limited to cognitive expression but extends to the non-rational, emotional realm;
– the Symbolism Principle, derived from the first two, to the effect that the First Amendment is not limited to language, but extends to expressive conduct, symbols, and so on.

In his view, all three of these principles came together in Texas v Johnston 491 US 397 (1989), in which the US Supreme Court held that flag burning as political protest was protected under the First Amendment: it implicated the Neutrality Principle as the government cannot choose between saluting the flag and desecrating it; it implicated the Emotion Principle as burning the flag hardly amounted to a rational statement of political disagreement; and it self-evidently implicated the Symbolism Principle.

This does not exhaust the general principles of the First Amendment. It also embodies:
– the Harm Principle, by which speech may be regulated to prevent it from causing certain kinds of harm, but the courts have relatively well developed views of which kinds of harm count and which do not. At one end of the spectrum, the prevention of imminent physical harm to persons or property is usually a good ground for restricting speech; at the other of the spectrum, the prevention of reactive harms such as emotional or intellectual offence will rarely if ever constitute a good ground for restricting speech; whilst in the middle, the prevention of relational harms (which are neither physical nor merely emotional, but reflect important social interests such as the protection of reputation or confidences or privacy), and if the intrusions upon them are severe enough, these can be a ground for restricting speech.

In his view, these elements of the harm principle were illustrated by the outcome in Hustler Magazine v Falwell 485 US 46 (1988), in which Rev Falwell could only point to the reactive harm of offence to the parody cartoon about him in Hustler magazine, but not to any physical harm or to any sufficient relational harm (Smolla has written a great book about the case: Jerry Falwell v Larry Flynt: The First Amendment on Trial (Amazon)).

Finally, here, he argued that the First Amendment also embodies three further principles:
– the Causation Principle and the Proximity Principle by which, even if an apprehended harm might prima facie potentially limit speech, the strength of speech protections are such that there must be strong connection in causation, proximity, likelihood and intent before the speech can in fact be restricted; and
– the Precision Principle, which is embodied in a number of discrete doctrines which preclude spillover (vagueness, overbreadth) and require narrow drafting (narrow tailoring).

In his view, therefore, this collection of principles embodies and ensures a robust commitment to freedom of speech. But these constitutional protections are not unlimited, and the Supreme Court has carved some important specific issues out of these otherwise generally applicable principles:
– the Children’s First Amendment, by which, where children are concerned, the Constitution eschews its usually libertarian approach in favour of a more paternalistic one, restricting both the speech of children and speech directed to children (he instanced Morse v Frederick 551 US – (2007) about which he has previously spoken);
– Government Speech; relating the speech of the government itself, an area which has developed doctrinally in the last 10 years or so, by which, where the government is the speaker speaking in its own voice, there may be political checks, but no legally enforceable First Amendment checks; and
– similarly, in cases of the government conducting its own business, the First Amendment is not necessarily applicable; he gave the example of prisoners who do not have the same free speech rights as general population, in part because they will by virtue of being prisoners have lost certain of their liberties anyway, and in important part because running a prison is not a free speech enterprise; and he argued that the same is true where the goverment acts as educator, employer, and so on;
– public forum law by which certain fora can be used for speech purposes, and others cannot;

He then argued that these principles can be applied to answer both the general issues of academic freedom and the specific issues which arose in his hypotheticals. In the first place, the question will be the extent to which the First Amendment’s general principles or its specific carve-outs apply. On the one hand, universities are founded upon the notion of the free exchange of ideas and wide-open and robust debate which is at the heart of the First Amendment’s general protections of the marketplace of ideas. On the other, they are communities of scholars which respect principles of community and scholarship and governed governed by notions of civility by which the neutrality or emotion principles might be excluded (for example, by the banning of hate speech on campus). Moreover, in the daily work of the university, all ideas are not created equal; academics make content-based judgments all the time in hiring, in grading exams, in research, and so forth. In his view therefore, the application of the First Amendment to an academic context and university environment has to be nuanced: he argued that, in principle, the general protections of the First Amendment do indeed apply to the academy, but that there have to be some (substantial) carve-outs which would allow for neutral academic quality judgments based on content, though not for viewpoint discrimination.

He detoured into some recent academic freedom controversies (the Solomon Amendment litigation; the withdrawal of an invitation to controversial former Harvard President Larry Summers to speak at a University of California Board of Regents dinner in Sacramento; the controversy over the appointment of former Secretary of Defence Donald Rumsfeld as a distinguished visiting fellow at the Hoover Institution; and the on again, off again, on again, appointment of Erwin Chemerinsky as inaugural Dean of the new Law School in the University of California at Irvine) before returning to his central claim that the source of modern academic freedom in the US academy is the First Amendment. And he teased out some of the consequences of this approach. First, public universities, as state entities, are subject to the constitutional protections of the First Amendment, so that the students, staff and faculty can rely on the First Amendment against them. Second, private universities can rely upon the First Amendment against the state. Third, however, there are conceptual difficulties in allowing public universities to rely upon the First Amendment against the state and in allowing the students, staff and faculty of private universities rely on the First Amendment against them. This is in part mitigated by the fact that First Amendment values are of such social as well as constitutional import that state (ie, public) universities often do successfully rely on the First Amendment against the State (even though this is the state suing itself) and that private universities accept that their students, staff and faculty can exercise equivalent rights against them, either as a matter of practice, or through codification of these obligations. Nevertheless, he acknowledged that, in these latter contexts, there are gaps in formal First Amendment coverage; but he argued that where a private university deviates internally from First Amendment norms, that comes at a social price, so that it should be done rarely, and after deep debate and reflection to vindicate other strong elements of institutional culture and identity.

To return then to the quote from Brian Tamanaha at the beginning of this post, it seems clear that (assuming that the colleges are public college to which the First Amendment does apply, or that they are private colleges which regard themselves culturally if not legally bound by First Amendment values) if a normative First Amendment approach to academic freedom is applied to the spate of law professors getting into trouble for their comments, they would all, in the first instance, be protected under Smolla’s approach, because the offence caused to or taken by the students and others who objected to the professors’ comments would amount to no more than reactive harms which are insufficient to trump general First Amendment protections. However, the question would then arise in each case as to whether a carve-out based on objective and neutral academic quality judgments might apply (remembering all the while that this carve-out, Smolla argued, would not encompass viewpoint discrimination); and it seems that all four of Tamanaha’s examples amount to impermissible viewpoint discrimination. Hence, applying Smolla’s approach to Tamanaha’s examples, all four of the law professors involved should have been able to invoke First Amendment-inspired conceptions of academic freedom in defence of their comments. I am sure that Smolla and Tamanaha would both agree that the fact that some at least were unable to do so is a sad day for the American academy.