FREE SPEECH IN THE COLLEGE COMMUNITY by Robert M. O'Neil. Bloomington, IN: The Indiana University Press, 1997. 280 pp. Cloth $24.95.
Reviewed by Mark Rush, Department of Politics, Washington and Lee University.
This is an engaging and highly readable discussion of the intricacies of First Amendment jurisprudence as it is applied to the college campus. Having served as president of the University of Virginia and founding director of the Thomas Jefferson Center for the Protection of Free Expression, O'Neil is imminently qualified to guide the reader through the maze of difficulties that currently characterizes free speech law--especially as it applies to the college campus.
The book's chapters are organized as memos from one public university official to another discussing the difficulties of keeping the peace on campus, maintaining the integrity of the university's educational mission and trying to remain faithful to the principle of free speech. The problem, of course, is that while the public university is an arm of the state, it is also committed to discrete, if not clearly defined educational goals. Hence the focus of the book: under what circumstances can free speech be limited or restrained if it can be argued that some speech is antithetical to the educational aims of the university?
O'Neil focuses on the travails of public universities because they clearly fall within the purview of the Constitution insofar as they are state institutions. However, in a concluding chapter he reminds us that private universities are hardly sheltered from such controversies because they may be subject to statutory restrictions such as harassment or civil rights laws which end up drawing them into controversies that are grounded in First Amendment issues.
FREE SPEECH IN THE COLLEGE COMMUNITY is both commendable and disappointing. On the one hand, O'Neil does a superior job of presenting the intricacies of speech codes, first amendment law and campus administration in very accessible language. On the other, he never bites the bullet and suggests a means by which the controversies concerning speech on the college campus can be managed, let alone resolved. As a result, while the book is an enjoyable and thorough narrative, it does not offer much in the way of conclusions.
That having been said, O'Neil should not be taken to task for this shortcoming since there are no solutions forthcoming anywhere else. Perhaps his most telling statement comes at the end of Chapter 6, in which he addresses freedom of the press on the college campus: "Surely the First Amendment does not compel the impossible, even for the best of causes"(143).
If one comes away from O'Neil's work with any one clear impression, it is that the law does currently place universities in an almost certainly impossible lose-lose situation. If, in order to protect the integrity of he school's educational endeavors, a university takes affirmative steps to keep the peace by restricting or silencing particularly inflammatory speech, it is almost certain to be subjected to a First Amendment lawsuit. Should the university do nothing to prevent or discourage inflammatory speech or that which, under current harassment laws, can be said to contribute to a "hostile environment," it is almost certainly equally liable to a lawsuit.
What plagues the university--and perhaps this is a reflection of the culture in which the American university functions--is a clear absence of or apprehensiveness to define appropriate standards of conduct and speech. Since, by definition, education entails the exposure to new ideas, there is a natural tendency to encounter resistance from those who do not wish to hear or learn about them. But how can we distinguish--consistently--between forcing students to learn about new ideas and subjecting them to indoctrination that they have a right to resist?
What jeopardizes the university is the absence of any means by which it can distinguish between speech in a bona fide academic or educational setting and speech which is malevolently intended only to inflame passions and instill feelings of discomfort if not offense. How, for example, do we distinguish between professors who contend that the Holocaust was a myth and those who make the same argument about creationism? Sadly, O'Neil's discussion leads one to believe that speech law has evolved to the point that there are no means by which bona fide, falsifiable scientific inquiry and discussion can be distinguished from unsubstantiated statements.
Were universities able, clearly, to define the scope and content of their academic missions, they might therefore be able to define as well what sorts of conduct and speech are, indeed permissible on the campus and by students and employees when they are off-campus. In this respect, what is absent from the case law involving universities are decisions such as Adderly v. Florida (385 US 39 (1966)) in which the Supreme Court sustained the arrest of protestors who had chosen to holed their demonstration on prison grounds. The demonstrators argued that insofar as the prison was state--i.e., public--property, they could not be denied access to it. However, the Court ruled that since prisons were not erected as public fora, the state and prison officials were justified in forbidding trespassers from prison grounds, even for the purposes of free speech. Since education is not as easily defined as incarceration, university officials have a much harder time setting forth restrictions on the use of the campus.
O'Neil does mention (88), for example that the university cannot be regarded in the same light that the Court cast on the streets qua public fora in Haig v. CIO (307 US 496 (1939)). However, as he documents throughout, attempts by universities to set forth codes of speech and conduct are virtually always found wanting due to vagueness or overbreadth.
In sum, one comes away from O'Neil's book with a renewed appreciation for the intricacies of free speech law. This is nothing new to students of the Supreme Court. However, O'Neil's portrayal of the vulnerability that seems now to threaten universities will most certainly cause the reader to appreciate the costs that arise as a result of the vagaries that plague free speech jurisprudence.