Chemerinsky: Navigating free speech on campus - The University of Tulsa
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Chemerinsky: Navigating free speech on campus

Dean Erwin Chemerinsky

On Feb. 1, The University of Tulsa’s College of Law hosted Erwin Chemerinsky, a renowned constitutional law authority, as the keynote speaker at the annual John W. Hager Distinguished Lecture in Law. Attendees from different parts of the region gathered to hear Chemerinsky discuss the intricate nature of free speech on college campuses.

This discussion becomes even more relevant now, where rights and respect intersect with the rapid growth of social media, racial strife, and political polarization. “We invite [experts] to our campus to enrich our community and provide students with the opportunity to learn from their expertise and real-world experiences,” said TU Law Dean Oren R. Griffin. “Additionally, our faculty engage in dialogue that refines their legal proficiency and perspectives.”

Chemerinsky delivered a compelling and timely address on the First Amendment’s protection of free speech. Although the subject matter was specifically designed for a university audience, the principles discussed were applicable and relevant across a wide range of applications. The dean of UC Berkeley Law delivered a captivating thesis recognizing how higher education encourages the exchange of diverse and sometimes conflicting perspectives. He also stressed that the U.S. Constitution safeguards the right to express any viewpoint or idea without fear of government repression.

However, this principle is not without its caveats and considerations, even for private universities. “Now, as everyone in this room knows, the First Amendment applies only to the government, so it applies only to public college universities,” Chemerinsky said. “But that doesn’t mean that private universities like [TU] are unconstrained when it comes to speech.”

The First Amendment thrives on the power of an open platform. What emerges from Chemerinsky’s address is the critical role of the institution in defining the boundary between freedom of speech and harmful conduct. Citing seminal court cases like Snyder v. Phelps, which involved a small church in Topeka, Kansas (Westboro Baptist Church) whose members audibly demonstrated against the LGBTQIA+ lifestyle of a U.S. Marine at his funeral. This case illuminated how the judiciary grapples with delineating between protected speech and a menacing or disruptive expression as the Supreme Court reversed a $10 million judgment in favor of the family who sued for intentional infliction of emotional distress and invasion of privacy. Chemerinsky noted, “… under the First Amendment, all ideas and views can be expressed, even deeply offensive ones.”

When speech infringes upon the rights of individuals belonging to protected classes based on race, sex, religion, or sexual orientation, it can exceed the boundaries established by the Constitution. “Harassment occurs when there is severe and pervasive interference with educational opportunities based on these factors,” he said, and colleges are required to take action to prevent indifference. However, the challenge lies in striking a balance between fostering free expression and upholding safety measures, which may result in significant costs.

To address harassment, policies must be meticulously worded, capable of enforcement, and aligned with constitutional principles. Despite early attempts, Chemerinsky highlights that in the 1990s, more than 360 hate speech codes were unsuccessful in legal tests due to their lack of clarity. To foster open dialogue on campuses, it is important to manage disruptive speech. Guidelines pertaining to time, place, and manner enable educational activities while respecting the principles of free speech. According to Chemerinsky, specific restrictions can be imposed on demonstrations near classrooms during class hours, the use of loud amplifiers, and protests in residential areas at night.

During the discussion, Chemerinsky also explored the question of whether student organizations have constitutional protection to invite speakers who align with the group’s mission and ideology. According to Chemerinsky, the First Amendment safeguards this right. However, colleges and universities retain the authority to assess the merit of such activities for academic credit. Finally, the highly contentious topic of diversity, equity, and inclusion was addressed, with Chemerinsky proposing a potential solution to prioritize the ultimate objective of DEI. By emphasizing that DEI is not about imposing specific beliefs, but rather about fostering an environment that acknowledges the needs and experiences of every student, staff member, and faculty, institutions can showcase their dedication to equity and inclusion while staying within the bounds of the Constitution.

The college takes great pride in offering these educational experiences with leading experts to students and supporters, reaffirming our dedication to experiential learning and enriching the community’s perspectives. Such initiatives not only prepare our students for legal complexities in the real world but also fortify a culture of critical thinking and reasoned discourse.