Guaranteeing academic freedom with safe harbor provisions and pro bono litigation

by Dorian S. Abbot

This post is about the article, “Free Speech on Campus: Countering the Climate of Fear” by John Hasnas at Georgetown University. The article is extremely insightful and important, but it is 50 pages long so a summary may be useful.

The basic problem the article addresses is that although we have excellent academic freedom/free speech policies at most universities, we still have a crisis of self-censorship that is severely hampering the pursuit of truth, which is the nominal purpose of those universities. To address this problem, Hasnas proposes: (1) adding “safe harbor” provisions to academic freedom and harassment policies making it absolutely clear that speech will not be restricted on the basis of content and (2) setting up a pro bono legal group to litigate issues as they arise.

Hasnas starts by providing data to establish the fact that there is in fact a speech crisis on campus. This is important because there are still some people who try to obfuscate or deny these data for political reasons. He also points out the speech crisis on campus is due to both the fear of being officially sanctioned by the university and the fear of being canceled, defamed, and ostracized by other students and faculty. So his proposed solution is going to have to address both issues. 

The next important point for us to understand is the legal situation of free speech at colleges and universities. For public universities the situation is simple: the First Amendment requires them to guarantee free speech. They can have rules on the time, place, and manner of speech, but they cannot restrict speech based on content. Critically, so-called “hate speech” is a made-up concept with no legal basis. Speech cannot be limited because someone thinks the content is hateful. Private universities, on the other hand, have the right to set their own rules, which could include limiting speech for any reason. That said, “The overwhelming majority of private colleges and universities have made commitments to extend the `broadest possible’ or `unfettered’ protection to freedom of speech on campus.” Since the First Amendment places some limits on free speech, these guarantees are implicitly even stronger than what public universities have to abide by. Finally, we should all be aware that representations made in university speech and harassment codes are legally binding and part of our contracts as faculty members.

Since almost all universities guarantee freedom of expression, what else is there to talk about? Well, it turns out that a law is only as good as its enforcement, and administrators have lots of incentives not to enforce academic freedom commitments in the current climate: “Deans get no reward for upholding abstract principles in the face of student outcry and protest. Their incentive is to quell the dissension as quickly as possible, which usually means mollifying the protestors… Deans who successfully quiet the disruption often earn praise from the administration, but they suffer no personal blowback for violating the institution's abstract commitment to freedom of speech.” Another perverse incentive structure (this time on community members) is that DEI bureaucrats incessantly encourage reporting anything that might offend someone, but there is no penalty for falsely accusing a person who was legitimately exercising freedom of expression in an academic environment.

Now we get to the first part of Hasnas’s proposed solution: a “safe harbor” provision such as the following to be added to university freedom of expression policies: “The University will summarily dismiss any allegation that an individual or group has violated a policy of the university if it determines the allegation to be based solely on the individual's or group's expression of his, her, or its religious, philosophical, literary, artistic, political, or scientific viewpoints.” This would make it clear to everyone that they will not be punished for expressing themselves and discourage self-censorship for fear of the authorities (or for fear of a mere accusation that would require an extended fight with an antagonistic bureaucracy). 

Next Hasnas addresses harassment law and policies. This is very important because it has become common for people to claim that expression of certain ideas creates a “hostile environment” and to try to use this to shut down perspectives they disagree with. I’ve experienced this myself and it is frightening and extremely disorienting to present a rational argument and be met with the response that it is harassment that creates a hostile environment. Hasnas points out that harassment law is not somehow exempt from the First Amendment. As a result, “It can outlaw expression to the extent that it is the equivalent of harm-causing conduct, but not to the extent that the harm is caused by the content of what is being expressed. Harassment law cannot ban or punish expression merely because of its offensive content.” Crucially, this means that “There is no conflict between [protecting free expression and preventing harassment] because the expression of offensive beliefs or opinions cannot constitute harassment.”

Unfortunately most university harassment policies do not explicitly point this out, which allows many people (both community members and bureaucrats) to misunderstand this point and be led to the false conclusion that protected expression can be a form of harassment. Hasnas proposes adding the following safe harbor statement to university harassment policies: “An expression of one's religious, philosophical, literary, artistic, political, or scientific views regarding any protected category either in writing or verbally does not constitute harassment and is not prohibited by this policy. The University will dismiss any harassment allegation that it determines to be based solely on such expression.” This needs to be followed up with training programs that clearly explain the difference between banned conduct and protected speech on campus. 

But even with these safe harbor provisions, administrators and the DEI bureaucracy will still throw heterodox speakers under the bus to satisfy braying mobs unless their incentive calculation can be changed. This motivates Hasnas’s proposal of a pro bono legal group that would litigate violations of university speech and harassment policies. The safe harbor provisions are essential for this because they make the commitments specific and easier to enforce, as opposed to general or abstract statements about the importance of freedom of expression which well-paid university lawyers can weasel out of. 

Next Hasnas considers efforts to suppress speech by individual actors. An important message is that we all have to be tough and ready to take a certain amount of abuse if we want to live in a free speech culture: “Expressing an unpopular or offensive position on campus exposes the speaker to a wide range of responses. Some will reply with reasoned argument. But others with expressions of shock or disgust, derision, or ad hominem attacks. The speaker may lose friends and suffer varying degrees of social ostracism for his or her words. Such consequences must be borne.” Personally, I have found that this is actually not too hard. Speaking your mind is a good way to find out who your real friends are, and I’ve even found that it leads to making better and more interesting friends. But I understand that social pressure is a stronger barrier to some people and perhaps universities could implement programs to help students develop the mental armor necessary for intellectual combat. Finally, Hasnas argues that it may be possible to sue attackers in some circumstances. The problem is it is expensive and the students you are suing may not have any money. So Hasnas again suggests a role for the pro bono legal fund. Even a few relatively small wins could scare activists into behaving better. One issue he didn’t address that I wonder about is whether lawsuits can be pursued by faculty who are considered public figures. 

Overall, this is an excellent paper and I agree with Hasnas that if his system were implemented the academic freedom situation would dramatically improve. I also think there would be many lawyers willing to work for the pro bono legal fund and benefactors could likely be interested in the project. I think the weakest part of the plan is getting universities to adopt the safe harbor provisions, which they have to willingly enter into. This seems extremely unlikely in the current climate, where even abstract statements of support for academic freedom are being attacked and replaced with self-contradictory schemes like “inclusive” academic freedom that explicitly exclude those whose speech most needs protection. So I worry that the only institutions that might adopt Hasnas’s safe harbor provisions, like perhaps the new University of Austin, would be the least likely to actually need them.