Fenster writes:

I have written before that I am not a free speech absolutist but that it is a damn close-run thing.  From a gut point of view I reflexively support free speech, and so I suppose I am objectively 100% there.  But my mind continues to remind me — the nag! — of its default reliance on pragmatism as an underlying philosophy, and I end up acknowledging that my support is ultimately based on a view of the usefulness of free speech in comparison with alternatives, and that in principle nothing can be absolute.

And neither it is absolute in law.  This is only sensible given the pragmatist Holmes’ view that the life of the law is not logic but experience.  So for that very reason the legal view, even as firmly as expressed as it currently appears to be, is not the end of discussion.  People who are in favor of restricting speech are free to call for such restrictions in law if they do not now exist.  Reasonable man standards can shift, paving the way for a drift in opinions of all kinds, including the legal ones.

Additionally, any discussion about law has limits based on the outer reach of the law: the legal concept of free speech does not mean that no person or institution may inhibit speech in any way.  In a constitutional context free speech is about Congress (government) not suppressing speech.  There are many venues in which constitutional free speech protections may not be relevant.  These will include private corporations, perhaps even educational corporations.   That does not mean free speech may not be recommended for reasons of wisdom or prudence.  And educational corporations may have a heavier obligation to worry about free speech than other corporations, given that free speech is a kind of cousin to free inquiry.  But it is simply not the case that anyone can say anything anywhere under the law, including at universities.

That said, the law is plenty robust and where it does apply it is a pretty uncompromising thing.  Allowable restrictions to speech are few and far between–essentially the more or less defined domain of “fighting words”.  This fact is well known but needs constant reinforcement for the simple reason that people who should know better keep ignoring it.  Howard Dean is not the only person who should know better repeating the incorrect mantra that free speech does not cover “hate speech”  (take CNN’s Chris Cuomo, please.) Eugene Volokh and Glenn Reynolds ably take Dean’s assertion apart here , here, and most recently here.  Good for them.  Dean is at the least guilty of willful legal ignorance and more likely guilty of guile and bad faith in the name of what he considers holy.  But as far as I am concerned: punch back twice as hard, and with the law on your side.

Still and all let us acknowledge that there are dangers to treating free speech itself as a holy object.  One of the practical benefits of free speech is that it is a curative for an excess of the sacred.  Making ideas sacred walls them off from needed ventilation and can promote a kind of rotting.  The need for ventilation applies to the idea of free speech itself in the same way as it is useful more generally.

The concept of absolute free speech can be ventilated on at least two dimensions.  First, there is a useful debate to be had over the reach of the concept.  Congress may not pass a law restricting speech but the devil is in the detail.   What does this broad notion mean in application?  And is everything permissible outside the scope? And even where constitutional language clearly does not apply when might it be wise — or unwise  — to insist on free speech as a broad concept even if it is not mandated?

The second dimension for ventilation is not about where robust constitutional principles apply but the very wisdom of those principles in the first instance.  The postmodern critique of free speech, redolent of those well-known categories or power and privilege, may lack legal traction (at least under current constitutional interpretation) but it is nonetheless a set of ideas worth debating.  That argument is presented articulately, if not necessarily persuasively, in this NYT article by a vice provost at NYU, a person of some power and privilege in academia.

The idea of freedom of speech does not mean a blanket permission to say anything anybody thinks. It means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community. Free-speech protections — not only but especially in universities, which aim to educate students in how to belong to various communities — should not mean that someone’s humanity, or their right to participate in political speech as political agents, can be freely attacked, demeaned or questioned.

Me, I don’t buy that tripe at a gut level.  My mind, however, reminds me that a real argument presents itself and should be reckoned with on its own terms.  And so I ask myself: would the world be a better place if our institutions took formal note of slippery concepts like power and privilege in dealing with speech issues, and built a new series of rules around them?  Or are we better off holding on to the old view of the benefits of robust speech?  To me it is no contest: the traditional view wins hands down.

But that NYU dean is an easy target because despite his lofty status and accompanying privilege his argument is a lazy one.  But is a more effective challenge possible?  Of course.  The mind is fertile.  So if you want to read a decent argument seeking to ventilate free speech you could do worse than turn to that rascal Stanley Fish, author of such contrarian works as There’s No Such Thing as Free Speech: and it’s a Good Thing Too.  Sometimes Fish comes off as a modern day Socrates using reason to herd people to uncomfortable truths.  But he can sometimes tend to sophistry, too . . . assuming a firm distinction can be made between Socrates and sophism.  But he is always worth paying attention to.

He recently wrote a relevant article at The Chronicle of Higher Education, the text of which I have linked to here to get around the Chronicle’s paywall.  His basic argument: that academic values are not free speech values and the two should not be lazily conflated.

It’s more about thoughts than the law’s effort to capture thoughts but the law is important and so Fish starts there.  He makes the important distinction between public and private universities, with public universities having the heavier burden with respect to free speech matters under the law.  He reminds us of the nature of jurisprudence on the broad question of free speech in public universities, and that most of this jurisprudence deals with whether the speech of faculty members or others can be restrained in an employment context.

The constitutional status of free speech at public universities has been worked out in a series of court decisions. The jurisprudence is a bit complicated, but it boils down to a key distinction between speech on a matter of public concern and speech that is personal or internal to the operations of the unit (i.e. a district attorney’s office or an academic department). If the speech at issue falls under the first category, it is constitutionally protected; if it falls under the second, it can be regulated in the same way any employer can regulate speech that disrupts the core business of the workplace.

Justice Thurgood Marshall described the adjudicative task. We must, he said, “arrive at a balance between the interests of the teacher as a citizen in commenting on matters of public concern, and the interest of the State, as an employer, in promoting the efficiency of the public services it performs” (Pickering v. Board of Education, 1968). So, in what might seem to be a paradox, the public university is “absolutely committed to protecting free speech” only when the speech produced is nonacademic. When it is academic speech that is being produced the interest of the employer is paramount and speech is permitted only when it serves that interest.

It is to be noted that the gist of the law here is about “employee” speech in a public entity with an acknowledged public mission.  Moreover that public mission is not about building highways but–as the law itself acknowledges–seeking the truth in an atmosphere of academic freedom.

What does this have to do with the obligation of the University of California to host Ann Coulter on the day of her choosing?

Fish would likely argue: not much.  As he puts it relative to Charles Murray and Middlebury:

Not all universities understand the difference between curricular and extracurricular activities and the different responsibilities attendant on each. They are confused in both directions: They think that the partisan passion of the extracurricular sideshow has a place in the classroom, and they think that something genuinely academic is going on when speakers invited precisely because they are controversial become the occasion for controversy. They don’t see that it is the administration’s job, first, to ensure that the classroom is a safe space for intellectual deliberation (that’s the only safe space I’m interested in), and, second — a very distant second — to maintain control of the energies that have been let loose once the decision to have a lecture or mount a panel discussion or allow a rally has been made.

I put it that way so as to emphasize the fact that nothing requires the making of that decision; nothing requires that there be extracurricular activities at all.

That’s an interesting, though not totally persuasive, argument.  Fish wants to separate the academy (classroom) from extracurriculars (a rock band in the Student Union on Friday night).  But I think his sophism gets the better of him here.  He probably knows very well that you cannot cleave things this neatly.   Surely a rock band on Friday is an extracurricular activity and in essence a lifestyle amenity of the type the colleges are obliged by the market to offer.  But Charles Murray’s talk at Middlebury?  A speech by a scholar sponsored in part by an academic department?  Seems to me that is academic speech, and in essence part of the core academic mission of Middlebury.

That does not mean Middlebury was compelled to host Murray or anyone else.  It is still not clear to me that a university–especially a private one–is under any legal obligation.  But I am not persuaded much by Fish’s attempt to cleave the institution into two parts, rending unto Caesar and God accordingly.

Fish makes a stronger argument on his general point: academic values are not free speech values.  Of course that is correct.  No two categories of thought are identical, though they more overlap to a greater or lesser degree.  Academic values will have something to do with free speech values because of academic freedom (itself a hazy, overlapping concept) but it will not be exactly the same thing.

Fish argues that the area of non-overlap has to do with the inherent nature of academia as a means of not just being open to all ideas but to vetting them, and coming up with some consensus on what ideas are actually better than others.  Academia is not–or at least should not be–a free-for-all.  Scholarship is in some ways a private activity but since it is developed in a communal way within an actual academic institution it must also have a collegial dimension too.  Not everyone gets tenure, and good luck to the tenure track professor relying on free speech arguments when appointment time comes.  Rather the question must be: are the ideas of the wannabe professor sound ones or not?

Looked at in this way, academic freedom is not just good for its own sake.  Higher education’s core commitment to academic freedom is a pragmatic effort to support the core goal of academic excellence and superior scholarship.

In turn, academic freedom’s cousin, free speech, is better than other alternatives on questions of expression.  But the concepts are different as each supports different, though related goals.  It will often be the case that the ideas will be in sync.  But not always.  Is a private institution with a religious orientation compelled to permit scholarship at odds with its mission?  Or even compelled to permit a heretic a soapbox on campus? I don’t think these things are constitutionally mandated and neither do I think they are necessarily recommended or wise.

While one could argue that this Fish-like view should apply equally to public and private universities because academic values are present at all higher education institutions, it is here we come back down to earth, and to the application, sorry to say, of the law.  The law simply trumps a Fish-style argument in a public context, if not in principle then at least in power.

That said, the application of the law is not a sure-fire cut-and-paste thing.  Legal reasoning is anything but black and white. It is all about working from principles into the morass of messy reality, and sometimes back again.

So take the case at hand: should Ann Coulter be barred from speaking at Berkeley?

The lawsuit just filed says she may not be stopped from speaking, and any effort to do so constitutes and abridgement of her constitutional free speech rights by a public body.

The university argues that it is not barring her completely but has an interest in safety.

Is this really so difficult a matter to deal with?  How is it that different from a billion other clashes in the intersection between principles and facts?  The institutions of the law are constantly in motion to evaluate such claims.  Case law and precedent consist of iterative attempts at squaring the circle between agreed upon principles and facts on the ground.

So let the lawsuit proceed.  We need case law here.  I do not think for a minute that courts should alter Supreme Court precedents on the meaning of free speech, which are per the above quite expansive in terms of permissible expression.  But is the university actually taking steps to gag Coulter?  Or is it acting reasonably under the actual circumstances at hand?

Alas, and with respect to the impassioned on both sides, there is no black and white answer to this.  The answer should come from a reasoned application of legal principles to the unique set of facts presented in the case.  Good faith efforts to maintain public safety before calling for cancellation?  Reasonable alternatives that allow for a broad venue for expression and are not a de facto tamp down?

I don’t think this ought to be a terribly hard case but I am not a lawyer so what do I know?  Maybe it is a hard case, and therefore capable of making bad law.  But in any event I say bring on the lawsuit and let’s hope that lower courts handle the matter with a clear head.  If not, it will be time to call the Supremes again.