Principles of Free Speech and Free Expression
Oct. 10, 2018
Dear Members of the Brandeis Community,
In November 2016, I convened a Presidential Task Force on Free Expression “to come together to reflect on and re-examine our university’s policies and practices related to academic freedom and free expression.” The task force, led by Professor George Hall, was charged with drafting a set of principles to guide “free and robust debate and deliberation among all members of the university community.”
The task force studied Brandeis’ history regarding free expression and academic freedom, reviewed other universities’ statements and practices, and engaged in conversations with a wide range of campus constituencies. It held a half dozen community-wide meetings, and met as a body and with various groups on some 25 occasions. The product of this extensive work was a set of five proposed principles to serve as the foundation for policies that define what free expression means on our campus. The committee submitted the principles to me at the end of the 2017 academic year.
After receiving the report, we invited members of the Brandeis community to comment on and react to the principles through open meetings and a dedicated website. Many offered their opinions, sometimes with great passion.
These issues were of considerable interest to our off-campus constituencies, too. Questions about how “free” speech is today on our campus is typically among the first questions asked by alumni and parents during the Q&A sessions I hold on the road. In Miami, Los Angeles, Phoenix, Chicago, Toronto, Las Vegas, and all points in between, alumni of all ages — from the “pioneers” of 1952 to members of Generation Z — have weighed in on the subject. They recalled their Brandeis experience as one characterized by free inquiry, intense debate, and respectful protest. They boasted of the rigorous intellectual environment for learning, predicated upon the ability to speak up, speak out, engage, debate, and, in the end, learn. Some noted the 1969 Ford Hall protests as a watershed in the university’s then-brief history (in fact, the university was, in 1969, younger than many of the Ford Hall protesters were); many noted how important it was for students who were previously denied a voice to have taken the initiative, to have had the freedom to speak out and express their dissatisfaction with society in general and the university in particular.
The older alumni recited Louis Brandeis’ quotes on the importance of free speech. Many asked how we could retain our motto, “Truth Even Unto Its Innermost Parts,” if we didn’t defend and support free speech. Others voiced concern over ensuring “fair and equal access” to any and all conversations on campus — in the classroom, in the residence and dining halls, and even in the student newspaper.
One thing that had been excluded from the principles — by design, as was explained by the committee during the open meetings — is the question of when freedom of speech is not absolute or fully protected. Even the most vigorous proponents of free speech recognize there are limits, both legal and practical, that need to be clearly articulated and shared. The University of Chicago, perhaps the university most known for taking a stance on freedom of expression, included the following in its 2015 statement:
“In narrowly-defined circumstances, the university may properly restrict expression, for example, that violates the law, is threatening, harassing, or defamatory, or invades substantial privacy or confidentiality interests. Moreover, the University may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the University.”
Princeton University, which adopted principles on freedom of expression in 2015 based on Chicago’s document, also noted when such freedom might be limited:
“The freedom to debate and discuss the merits of competing ideas does not, of course, mean that individuals may say whatever they wish, wherever they wish. The University may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University.”
Therefore, following the period of public comment at Brandeis, I proposed that the Board of Trustees adopt the principles as put forth by the Presidential Task Force on Free Expression, with the addition of a sixth principle, which discusses time, place, and manner restrictions.
At its meetings on September 26-27, the board voted unanimously to adopt the following:
Principles of Free Speech and Free Expression
1. Maximizing Free Speech in a Diverse Community
All members of Brandeis should be able to put forth ideas for consideration, engagement, and criticism by others, as such exchanges are core to the mission of institutions of higher learning. We explicitly connect free speech concerns with our desire for a diverse, inclusive community. Free expression, including the arts, implies the free exchange of ideas — talking and listening. We endorse as a principle for action Louis Brandeis’ remark: “If there be a time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” The university has a responsibility to encourage the airing of the widest range of political and scholarly opinions and to prevent attempts to shut down conversations, no matter what their topic.
2. Developing Skills to Engage in Difficult Conversations
The Brandeis community rightly prides itself on debating difficult issues vigorously. To introduce prior restraint by attempting to define realms of prohibited speech would be for the administration to produce a chilling effect upon speech and exchange of views on campus. Reaching our fullest potential in this regard will entail an ongoing educational process, a curriculum that exposes students and the entire community to various viewpoints, and a long institutional memory about how free expression operates and has operated at Brandeis. All this will require the intellectual courage to risk discomfort for the sake of greater understanding.
3. Sharing Responsibility
All members of the Brandeis community bear the moral responsibility for their actions and the impact those actions have on the community. Open-minded disagreement can be a marker of respect, the sort of response for which we strive. We should embrace civility, but in the larger sense: an issue can be engaged with emotion, and even a raised voice, if the humanity of all involved is respected. We should work toward a campus life that promotes the expression of a diverse set of intellectual, political, cultural, and social outlooks. The university’s commitment to freedom of expression is an essential part of the ethical and intellectual imperative to strive for diversity and inclusion on campus. The university must find ways to engage the whole community about each person’s responsibility to foster a just and inclusive campus culture so that all can participate fully in the intellectual and social life of the university.
4. Rejecting Physical Violence
Peaceful protest is fully appropriate to an environment of vigorous discussion and debate, but physical violence of any kind or the prevention of speech is unacceptable. Once violence is normalized as an ingredient of free expression, it sets the pattern, ending rather than supporting free expression.
5. Distinguishing between Invited Speakers and University Honorees
Brandeis should provide space for campus organizations of all sorts, including invitations to outside speakers: such openness does not constitute a university endorsement of the organizations or the speakers. However, there are certain circumstances, especially the granting of honorary degrees, in which an invitation issued by the university does constitute an endorsement of some major aspect of their life or work. A protest against the university for making a disfavored choice for a prestigious honor is not, in itself, an attack on free speech.
6. Institutional Restrictions
The freedom to debate and discuss ideas does not mean that individuals may say whatever they wish, wherever they wish, or however they wish. In narrowly-defined circumstances, the university may restrict expression, as for example, that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the university.
With these principles now adopted, the university will undertake a review of all related policies to ensure they are consistent with and support these principles.
Brandeis is far from alone among colleges and universities in recognizing the need to review the protection and promotion of free expression on our campus. At its most recent meeting in April, the presidents of the 62 leading research universities in North America that make up the Association of American Universities endorsed a statement on free speech. I want to quote from its opening sentences, which underscore the importance of free expression in higher education:
“The free and open exchange of ideas and information is fundamental to the educational mission of AAU universities. The robust discussions and debates that occur at research universities have been central to the advancement of democracy, the creation of new knowledge, the fostering of educational excellence, and the promotion of social progress.”
The principles adopted by the Brandeis Board of Trustees are consistent with the AAU statement and are critical to fulfilling our mission as a leading institution of higher education.
I want once again to thank Professor Hall and the members of the task force for their excellent work on behalf of the university. I believe the principles reflect the purpose and the historic role of the university as a place where the pursuit of knowledge is paramount, a place where ideas and opinions are freely offered no matter how new, controversial, unpopular, or even offensive they may be. As Justice Brandeis argued nearly 100 years ago, the best antidote to speech with which one disagrees is not ensuring less speech but, rather, more speech.