Working through the dilemma of free speech on college campuses

Bill Radke talks to Seattle University communication professor Caitlin Carlson about the tension between protecting free speech on campus and protecting the rights of students, faculty and staff.

Transcript edited for clarity and brevity.

You've seen video of the rally, you've talked with your students about it. Did the group Patriot Prayer utter hate speech?

I wasn't there so I can’t speak firsthand, but my understanding was that there wasn't necessarily hate speech in the official speeches or chants used by either group. From what my student Hannah Duffy told me was that it was when the altercations occurred. I believe the Patriot Prayer group was kind of cordoned off. When they left that area and had “skirmishes” with the counter protesters, that's when I heard some racial epithets and other kinds of terms were actually used.

Are you suggesting that the university would prevent a Patriot Prayer group from speaking because of skirmishes that might happen?

What we talked about in class, it was really interesting to watch this unfold when the UW administration leveled this $17,000 security fee on the College Republicans ahead of time. What a lot of us felt like was, "That's going to have a chilling effect." The purpose of that [fee] is based on the content of the speech, and it's easy for a lot of us, particularly in Seattle, to say, "Oh, Patriot Prayer group, that's got no place on campus. Absolutely not."

But if we let administrators start regulating speech based on its content, what happens when they decide that Black Lives Matter doesn't get to come on campus? And I think one of the misnomers with public colleges is that according to the government, they are a traditional public forum, that it's a place that people have come to share ideas. The fact that it harms student dignity or infringes on what professors are trying to teach there, those are the kind of rights that they need to balance with the free expression rights of the students.

On Friday, organizers of different campus events started canceling. What should the university do with groups canceling if they host a rally?

It's tricky because the university is acting in accordance with the law. So there is precedent that says it's not up to university administrator to decide how student fees are spent, even if students disagree with the content of the speakers being invited in, it's not the university's place to stop that. They're not able to silence any of those speakers. What I think is interesting is, fundamentally, the reason that we're saying "allow groups like Patriot Prayer on to campus" is we want students to wrestle with controversial ideas.

There's a famous case called Papish V. University of Missouri and the Supreme Court said that the mere dissemination of ideas, no matter how offensive to good taste, on a state university campus may not be shut off in the name of conventions of decency. So [universities] are really bound not to do this kind of content-based restriction.

I know the UW administration sent an email to students saying "steer clear of this area." The logic is starting to get a little faulty. If the Supreme Court is saying, we want students to wrestle with ideas and that's why the law is the way it is, well, you're now telling students "don't go there." This might be one of those places where, is it time for the First Amendment to change? Do we want to continue to protect hate speech in public spaces, which is what the law says now?

What's your solution? Solve this for us, professor!

I'm not of the mind that we need to change the First Amendment. I get really nervous about who gets to decide when and where expression gets to take place.

We have a really strong history in this country of being against prior restraints. We don't allow people to stop expression before it happens. And so I'm not of the mindset that we should tell people what to say ahead of time, but we can, I think, punish speech — especially low-value speech. I could see a situation where we adopt an approach like Germany that uses a fine or potential jail time to punish people if and when they use speech that crosses a line into infringing on others dignity, using racial, ethnic, misogynistic slurs.

How would you define low-value speech?

One example is commercial speech. We tend to put political expression up on this pedestal and say commercial speech is less valuable. If I want to have an advertisement that says, "drink this energy drink, you'll lose 20 pounds this week" — that's illegal. They can stop that right away. Do we want to look at some of the harm caused by hate speech and say that's the reason for punishing it, potentially after the fact?

How would you establish whether somebody's political opinion is a lie?

We have to be careful saying certain political opinions are hate speech. I think hate speech has a really clear designation as language or expression that demeans or dehumanizes another based on immutable characteristics — things they can't control, so race, gender, religion, etc.

So if you say something demeaning to someone based on race, gender, you would be arrested?

Not necessarily — that’s where I would probably differ from Germany. We have an option, which Jeremy Waldron talks about, of a libel-type penalty, so it would be more like a civil suit. So if you say racial epithets that demean or diminish my reputation, we create an opportunity for me to then sue you to say, "these things harmed my dignity or these things caused me emotional distress."

Would the harm include my feelings are hurt? Or what kind of harm would you have to prove?

Well, what’s funny, we actually already have a tort about "my feelings are hurt" which is intentional infliction of emotional distress. The courts have not been favorable to applying that to hate speech and that's why I say potentially there does need to be regulation. I think for a lot of folks, the lack of regulation is the government saying this type of language is okay, which is what we've done.