Open Debate Can Sometimes Violate the Freedom of Speech

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St. Louis University, a private school, has drawn some attention from Inside Higher Ed for its treatment of campus speech.  According to controversial speaker David Horowitz, the university refused to allow the College Republicans to bring Horowitz on campus to speak about “Islamo-Fascism,” or to debate the subject of “Academic Freedom and Islamo-Fascism” with Cary Nelson of the American Association of University Professors.  Horowitz says the university would not allow him to speak unless “there was another speaker on the program to oppose his point of view,” and then rejected him again in debate format, stating it would permit the debate if it included a third speaker to represent the school’s Catholic values. 

Assuming the truth of these allegations, this move raises some interesting questions.  While such a move by a private university raises no First Amendment issue directly, it still reflects a certain attitude toward student speech, and it wouldn’t be surprising to see a public university also try such a tactic if it could.  But beyond the initial legal questions, what would be the problem with an additional voice in a debate?  After all, public debate is what the students are ultimately seeking, even if Horowitz speaks alone.  A university is for the free exchange of ideas, and a private university certainly has the right to speak its mind even where it rightfully respects the rights of others to voice disagreement.  So what’s the problem?  Doesn’t a more robust debate, even where compelled, respect the freedom of speech?

The problem here is reminiscent of the Supreme Court decision Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston 515 U.S. 557 (1995).  There, an Irish-American homosexual organization sued the private organizers of the Boston St. Patrick’s Day Parade after they refused to allow the homosexual organization to join the parade to celebrate their sexual orientation.  The Massachusetts courts ruled in favor of the homosexual organization, holding that its state public accommodations law, which prohibited discrimination “in any place of public accommodation, resort or amusement,” required the homosexuals’ inclusion in the parade.

The U.S. Supreme Court reversed the state courts, holding that “this use of the State’s power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message,” noting also:

Since all speech inherently involves choices of what to say and what to leave unsaid, one important manifestation of the principle of free speech is that one who chooses to speak may also decide “what not to say.” Although the State may at times prescribe what shall be orthodox in commercial advertising by requiring the dissemination of purely factual and uncontroversial information, outside that context it may not compel affirmance of a belief with which the speaker disagrees. Indeed this general rule, that the speaker has the right to tailor the speech, applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid, subject, perhaps, to the permissive law of defamation. Nor is the rule’s benefit restricted to the press, being enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers. Its point is simply the point of all speech protection, which is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.

[Internal citations and quotation marks omitted.]

Thus, the Supreme Court ruled in favor of the parade’s private organizer, holding that it “clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another.”  Likewise, “disapproval of a private speaker’s statement does not legitimize use of the Commonwealth’s power to compel the speaker to alter the message by including one more acceptable to others.” 

To reiterate, St. Louis University is not legally obligated by the Supreme Court’s decision because it is not a state university.  Nevertheless, the Supreme Court’s reasoning should instruct the university how it might show greater respect to students’ freedom of speech.  St. Louis University’s dictate that the student event allot time to opposing points of view abridges the students’ ability to freely speak because it requires that they include speech that they may wish to exclude and it denies their ability to “shape their expression.”  The best way for the university to express its values while respecting freedom of speech is to hold a separate event of its own, or perhaps suggest a symposium in addition to the student-sponsored event.  But any requirement that a student event with a controversial speaker include the university’s viewpoint exhibits not a respect for free speech, but a denial of it.

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