As my fellow Gen Z’ers and I are growing up and beginning to establish ourselves, the issues of modern society surround us more than ever. Hotly contested and complicated issues such as gender, sexuality, religion and politics have sparked intense debates nationwide. One issue that is consistently in the forefront is our right to free speech. I had the privilege of attending a debate on this topic this past September 17, sponsored by the McCain Institute for International Leadership at Arizona State University, as part of its Debate and Decision Series. Experts gathered to discuss whether college campuses are eroding free speech, and the topic sparked my interest — I decided to do some research of my own.
I found that there is a fierce divide amongst the people; and with it comes a hesitance to profess one’s beliefs or reach out to ask about another’s, especially on college campuses. According to a 2017 Gallup-Knight Foundation Survey, 61% of college students feel that the climate on their campus prevents them from freely expressing their views. These opinions make sense when considering the events of recent years: as stated by the Foundation for Individual Rights in Education’s Disinvitation Database, over four hundred attempts have been made to disinvite speakers from college campuses since 1998, involving pressure from both the left and right. As a Gen Z college student, I find a great irony in this situation. In an age where one of our most important values is diversity, universities are struggling with arguably the most important diversity: that of opinion.
The same 2017 Gallup-Knight Survey also finds that of all 3,014 college students surveyed, 53% value a diverse and inclusive society as more important than a society which protects free speech rights, in contrast to 46% who felt the opposite way. Reviewing these numbers, I find that people have perceived a difference between a diverse and inclusive society and a society which promotes free speech. In my mind, however, the two are one in the same: one cannot exist without the other. I see free speech as the expression of diversity itself: ideas conflicting, aiding or merging with other ideas. These differing ideas lead to action and create movements which speak for those who believe in them, ultimately creating and strengthening diversity. This freedom of expression and exchange of ideas is how different groups like Black Lives Matter and the National Rifle Association can coexist in the same country. Freedom of speech not only encourages diversity of thought, but it also creates the means for different thoughts to find voices to represent themselves. It is in this light that I find it the perceived divide between diversity and diverse speech as ironic.
Some might challenge these arguments with the notion that free speech is fine when considered alongside diversity, but hate speech is where the true danger to diversity exists. In certain cases, they are right. However, these concerns have been addressed by the United States Supreme Court, who have played a major role in determining the limits of free speech — there are indeed types of speech which are not constitutionally protected. In the cases of Schenck v. United States and Gitlow v. New York, it was determined that speech which advocates direct violence towards or resistance against the government may not be protected, especially in times of war. Feiner v. New York and Chaplinsky v. New Hampshire determined that speech which is inflammatory and incites disorder alongside speech which breaches the peace boundaries of a community — famously called “fighting words” by Justice Frank Murphy — is not protected by the First Amendment. Brandenburg v. Ohio overturned the Schenck decision and established the Imminent Lawless Action test, which states that speech advocating for violence and/or criminal activity, even against the government, is not constitutionally protected if and only if the speech is “directed at inciting or producing imminent lawless action” and is “likely to incite or produce such action”. Finally, Tinker v. Des Moines established that students do not lose their right to free speech when on campus, provided that their speech does not “materially and substantially” interfere with the operations of the school.
The above cases establish clear boundaries of what can and cannot be said under the First Amendment. If these types of hate speech occur on campus and challenge diversity, then of course they should be punished — but more often than not, the hotly protested speeches on campus grounds have been deemed not in violation of the Court’s established rules. Even in the cases of people making hateful arguments or advocating for hateful action, the likelihood that their hateful plans will ever actually go into any serious form of action has clearly been deemed very low and therefore protected under the Imminent Lawless Action test. This can be a good thing in my opinion: the market of ideas should be kept as open as possible. For if it is, then the bad ideas will be dismantled naturally when compared alongside other, better ideas: that’s the power of dialogue.
This is just my opinion, though. An interpretation of some laid out facts. Perhaps you disagree with it (which is fine!). Perhaps you aren’t sure what to think and want to gain more knowledge of your freedom of speech and other rights as an American. The McCain Institute has recently launched a brand new initiative called We Hold These Truths to help serve this exact purpose. In its own words, the movement seeks to “educate and galvanize the public to explore and engage — through the lens of the First Amendment — in human rights in a meaningful way that’s relevant and resonant to their own experiences, and then act to protect and preserve rights for others across the country and globe.” I would heavily recommend checking it out, getting immersed and developing a stance of your own.
DISCLAIMER: McCain Institute for International Leadership is a non-partisan "do-tank" that is part of Arizona State University. The views expressed in this blog are solely those of the author and do not represent an opinion of the McCain Institute.