Noah Feldman on Neo-Nazis, Academic Freedom, and Free Speech


Neo Nazis on  campus? The lines get kind of blurry the more clearly they get drawn. In an interesting article Noah Feldman  parses out the difference between academic freedom and free speech with an eye  on the First Amendment (which may or may not apply in certain or all cases), the distinction between public and private institutions of higher education, different zones on campus, recognized by law, that relate to the regulation of free speech, and the intellectual and moral norms that are supposed to define the academy. The whole article is here. My digest of what to me were the most important parts of the article are below, Feldman’s words under rubrics of my own design.

Private Colleges and Universities

Although some private institutions may have internal rules that commit them to treating different viewpoints fairly, nothing in the First Amendment requires them to be neutral. To the contrary, a private institution has a First Amendment right to promote any viewpoint it wants and to discriminate against any viewpoint it would prefer to exclude. That’s why when private universities cancel speaker invitations, the speakers’ only recourse is criticism.

Public Universities

But on closer examination, academic freedom and constitutional free speech are actually pretty different. In private universities, the act of creating a campus where academic freedom exists requires the creation of a community that shares certain scholarly norms. If students and teachers could shout each other down, free exchange of ideas on campus would quickly become impossible.

And in truth, public universities aren’t much different. To function as universities, they need to create an environment of communal commitment to exploring the truth. That includes, in my view, great latitude for expressing almost any imaginable viewpoint. But it does not include threats or harassment. And it does not allow for gross violations of civility. Consequently, public universities may regulate, for example, threatening racist or sexist speech, much in the way that private corporations do (and are required to do by federal law).

Free Speech and Academic Freedom

I have no doubt as a First Amendment matter that such white supremacist speech, hateful as it is, must be permitted on public streets provided the marchers have a permit and proceed peacefully.

But on a campus that is trying to shape a respectful environment for intellectual community, such a march by people unconnected to the university is wholly inappropriate. It bespeaks potential intimidation and an invitation to raucousness that is unsuitable to what we might unironically call the groves of academe.

In short, the university is not the public square. Where the First Amendment requires it to be treated as such, it’s crucial for public university administrators to follow the law. But wherever possible, we should use all lawful means to distinguish the free-for-all of public argument from the structured, reasoned debate to which the university as an institution is supposed to be dedicated.


About zjb

Zachary Braiterman is Professor of Religion in the Department of Religion at Syracuse University. His specialization is modern Jewish thought and philosophical aesthetics.
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