To see the highly politicized nature of our society, look no further than our college campuses. While colleges and universities are hotbeds for new thought, they can also be a battleground for examining old ideas through fierce debate. And it's not just students who want their opinions heard—professors are often at the center of controversy.

Historically, the First Amendment has done a lot to protect professors' free expression on controversial topics. As our political climate gets more and more fraught, some folks are re-thinking just how far the First Amendment should go in protecting professors' free expression.

Professors Disciplined for Controversial Viewpoints

In the past decade, the news has been peppered with stories of professors who have been embroiled in controversy or even disciplined for expressing certain viewpoints. In a famous 2007 case, a tenured professor was fired from the University of Colorado, Boulder, after he wrote an essay blaming U.S. foreign policies for the terrorist attacks on 9/11. More recently, professors citing their religious beliefs have been disciplined for failing to use transgender students' preferred pronouns. Last year, a Georgetown law professor was fired for her comments during a Zoom call that she was frustrated that “a lot” of her “lower students” were black.

Universities Focused on Inclusion

In the wake of today's cultural reckonings, many universities are focused on creating inclusive campuses where all students feel welcome.

But how do professors' First Amendment rights collide with a university's desire to create an inclusive environment and tamp out what many see as hateful speech? Should a professor have the academic freedom to deliver a lecture denouncing certain races or sexual orientations? Should a professor have the academic freedom to harshly criticize the government's response to crises (like the response to COVID-19, for example)?

New Book Argues the First Amendment Should Not Protect Certain Speech

In their new book, professors Michael Bérubé and Jennifer Ruth argue that colleges and universities should adopt academic freedom policies that restrict hateful speech on campus. In It's Not Free Speech: Race, Democracy, and the Future of Academic Freedom, Bérubé and Ruth argue that academic freedom should not extend to professors who espouse racist views. For them, the soundness of a faculty member's viewpoint should be judged by a jury of her peers. For instance, a believer in flat-Earth theory is not fit to be a geology professor. It follows, they say, that a believer in theories of racial or cultural hierarchy should not be teaching political science.

The Strength of the First Amendment

What the book misses is just how strong our county's First Amendment protections are. The First Amendment has long protected downright awful speech. It is part of the fabric of our nation. Universities are fertile grounds for the exchange of ideas, and the First Amendment protects the flow of those ideas. The fact that some ideas may be detestable to some audiences is precisely the reason the First Amendment is so important.

Moreover, restrictions on speech can have unintended consequences. If a university can restrict speech it deems hateful, then what's to stop a university from restricting a lecture with an honest telling of the events leading to the civil war? Or from limiting a professor's criticism of the U.S.'s involvement in world politics or controversial domestic issues?

Speech needs to be protected from government interference, even if the cost of that freedom is that we have to hear some unpleasant or even horrific viewpoints from time to time.

How to Protect Your Free Speech Rights

If you are a faculty member at a college or a university and you have questions regarding your free speech rights, contact Joseph D. Lento. He can explain the legal options available to ensure your free expression on campus. Call the Lento Law Firm now at 888.535.3686 or reach out online.