Free Speech on Campus

Authors _ Erwin Chemerinsky and Howard Gillman

Publisher _ Yale, 2018. 208p. Paper. $26.00. ISBN 978-0-300-22656-0

Reviewer _ Rosanne M. Cordell, Northern Illinois University, retired

Free speech on college and university campuses in the United States is a complex topic with competing and conflicting rights, governing body responsibilities, goals, legal precedents, popular views, and purposes. To untangle all of this requires both attention to fine legal points and a broad view of societal needs. Chemerinsky and Gillman have the expertise and experience to bring both these characteristics to bear on discussions of this topic, but they do much more: they outline specific policies that can and should be followed by universities and colleges in seeking to provide the best of higher education. Chemerinsky (The Conservative Assault on the Constitution, The Case Against the Supreme Court, Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable) and Gillman (American Constitutionalism: Structures of Government, The Votes that Counted: How the Court Decided the 2000 Presidential Election) have distinguished positions at the University of California, Irvine, School of Law and taught an undergraduate seminar on Free Speech on College Campuses in 2016. Their combined voices bring a clarity and, surprisingly, brevity to this topic that are rare.

Chapter One lists very recent events and court cases related to free speech on campuses, explaining the contradictions and legal problems involved. The tension between providing supportive educational environments for minorities and underrepresented populations and the critical need for free speech in democracies is presented in a compelling and sympathetic manner. The current population of students is not denigrated as overly sensitive or cushioned, but the critical place of First Amendment rights is also clearly demonstrated. The authors believe that the principles of free speech and the associated constitutional rights are at risk, in part, because the Office of Civil Rights (OCR) in the US Department of Education have muddled the issues involved and have initiated investigations when none should have occurred. The authors believe that both inclusive educational environments and defense of free speech are possible if their guidelines are followed.

Chapter Two details the primacy of free speech in constitutional law and provides a brief history of First Amendment rights in the United States. The distinction between past attempts to censor speech by the government and current calls for censorship by the very student bodies that demanded free speech in the 1960s is explored in ways that will make the Vietnam War era much more real than recitations of dates and events typically do. The Berkeley Free Speech Movement is placed in the legal context that gives it meaning beyond background color; it demanded that university administrators provide two different types of speech zones, an arrangement that has had lasting effects on the free speech rights of post-secondary students.

Chapter Three explores the role of colleges and universities in American society and how it has changed significantly from keepers of known truth to havens of continuous discovery of truth. This essential role is the basis for requiring free speech to thrive on campuses, but it seems little understood by today’s students or citizens. Chapter Four delves into the legal definition of hate speech and its status in American law. This critical area of law is relevant to free speech on campuses because it is hate speech that is under attack when calls for censorship of speech are heard on today’s campuses. What constitutes hate speech, and what must be tolerated for inquiry to flourish? In many ways, this is the heart of the authors’ arguments for greater protection for First Amendment rights on campuses.

Chapter Five outlines clearly what campuses can and cannot do in controlling (and censoring) speech. Given the previous chapters, one should be able to follow this delineation easily, but legal arguments and precedents are complex. This book cries to be used as a textbook in an undergraduate course where students trace these precepts back to the authors’ reasoning in previous chapters, or as a launching pad for graduate student research on any of these distinctions.

Chapter Six draws the necessities of both free speech and inclusive education together to demonstrate how they can and should work in tandem to fulfill the role of American colleges and universities. This, of course, would require a clear understanding by those in the Department of Education’s OCR to clarify institutions’ responsibilities and OCR’s own working model. Dare we hope that the publisher provides OCR with numerous copies?

Although other books on First Amendment rights in academia exist, none is as up-to-date nor as accessibly written as this one. Every academic librarian should have this book as required reading, since we so often find ourselves lonely voices defending First Amendment rights on our campuses. These are not theoretical situations that are presented; the authors’ experiences teaching an undergraduate seminar on free speech are echoes of this reviewer’s experiences attempting to help our Affirmative Action office navigate the fraught climate on campus after the 2016 presidential election. However, it is never enough for librarians to speak only among themselves; the authors are eminent academic scholars and administrators, and their voices should be heard by all in the American academic community. This reviewer examined an advanced copy of Free Speech on Campus, which lacked a planned index. Even without an index, this title would be essential for all academic libraries and should be considered for Big Read or One Book programs.