In US law and in Article 19 of the Universal Declaration of Human Rights, free speech means rights of individuals and associations against their governments. If you have a right to a given form of speech, then your government may not block, ban, or punish that speech.
Free speech is very extensive in the USA. In 1969, in Brandenburg v. Ohio, the Supreme Court found that a KKK leader had the right to advocate publicly for “revengeance” against “black peoples” and “Jews.” This decision clearly protected hate speech and remains the law.
One important exception has involved non-US citizens. Periodically throughout US history, the federal government has barred people from entry or deported them on the basis of their speech. This is an unsettled area of constitutional law that is before courts right now.
Notwithstanding their constitutional free speech rights, Americans generally lack the right to speak as they wish at work. An employer can usually fire you for what you say, or even for speaking at all.
There are some exceptions. Many employees have a right to advocate unionization under the National Labor Rights Act, although that right is poorly enforced. Some public employees have free speech rights because their employer is also the government, but they are not protected when they are speaking in their governmental role. For instance, a state attorney does not have a constitutional right to dissent publicly about a case being handled by his office (Garcetti v. Ceballos, 2006).
Since the late 1800s, some have argued that students and faculty need freedom of speech to advance the mission of an educational institution. An early statement was by the University of Wisconsin in 1894: “Whatever may be the limitations which trammel inquiry elsewhere, we believe that the great state University of Wisconsin should ever encourage that continual and fearless sifting and winnowing by which alone the truth can be found.”
This is academic freedom in the form of rights for individuals and groups of students and faculty in relation to their own educational institutions. Today, it is encoded in the form of policies adopted by specific schools and colleges, employment contracts, student disciplinary codes, prevalent norms and expectations, and some state laws that afford rights to students or faculty in state schools and colleges.
For the most part, academic freedom is not a constitutional right derived from the First Amendment. A college or a state system can choose not to offer it. When individuals sue for academic freedom, it is usually for breach of a contract that was voluntarily adopted by their employer.
It is tempting to envision academic freedom as just like freedom of speech, except that an educational institution is like the government: prevented from censoring or punishing individuals’ speech. But this model quickly falls apart, because educational institutions are fundamentally and intrinsically involved in choosing, evaluating, rewarding, and penalizing speech. For example, a department will select the prospective instructor who offers the best writing and oral presentation among all the applicants. That person is hired to teach courses in the approved curriculum. Professors award grades based on the quality and relevance of the students’ writing and speaking.
Thus the idea of neutrality or non-interference, which applies to governments, simply cannot govern schools or colleges.
Instead, academic freedom is a patchwork of provisions that vary by institution. Many universities have adopted explicit policies of not restricting faculty or student speech based on its point-of-view or position, usually within limits. (For example, the right to express opinions on political issues does not allow a faculty member to take extensive time in the classroom to discuss issues unrelated to the course content.) Colleges generally adopt procedures for faculty hiring, promotion, and tenure that are meant to enhance freedom along with quality. We talk about a “tenure case” because it has the feel of a legal process, with rights afforded to the applicant. Receiving tenure then prevents professors from being fired for the content of their speech.
Further, universities assign many decisions to groups of students or faculty instead of the central administration. For example, student groups often have broad rights to invite speakers of their choice. Departments are influential in choosing faculty and determining curricula. The whole body of faculty of a college votes on key curricular matters. These are examples of academic freedom as a kind of freedom of association for specific categories of people within the institution. The Supreme Court has also sometimes acknowledged a free speech right for each university to determine its own programming (Justice Powell in Regents of the University of California v. Bakke, 1978).
The norm not to interfere with speech on the basis of viewpoint or content is quite strong in higher education (much less so in K12), yet the prevalent rules leave many gaps. In particular:
- Only students and “instructors” are typically protected. At my university, just under 30% of the employees are faculty, broadly defined. In general, if you cut the grass at a college, you have no more free speech than if you cut the grass at a condominium. And if you are a dean or vice-provost, a laboratory technician, a clinical physician, or a counselor, you may not be covered by academic freedom.
- Academic freedom is quite strong in a setting like a philosophy seminar, where the participants probably enrolled by choice, the professor had a lot of scope to choose the curriculum, and everyone can choose their own positions. But switch your example to a laboratory in the medical or engineering school. This is a highly capitalized enterprise with expensive equipment and many at-will employees. It probably exists thanks to government grants and private philanthropy. These two go together because private donations are what allow universities to hire the faculty, attract the graduate students, and build facilities that make them competitive for federal funds. Harvard wins $8 billion in federal grants annually because it has $53 billion in private money. In the lab sciences, key decision-makers include donors (often members of the board of trustees) and government officials. Now switch back to the philosophy class and bear in mind that overhead from STEM research may subsidize the professor’s salary. From this perspective, a university is not a community of citizens in a republic of letters who each decide what to say. It is an expensive, top-down enterprise whose research agenda is negotiated with outsiders.
- Title VI of the Civil Rights Act prevents discrimination on the basis of race, color, religion, sex, and national origin. For decades, it has been interpreted to mean that schools and colleges have a legal obligation to prevent speech by their own students and employees that causes discrimination. This principle is in tension with academic freedom as the right to choose and express one’s own view.
I do not regard this tension as simply unfortunate. In an educational institution, which is an employer, a gatekeeper to professions, and usually a landlord as well as a venue for “continual and fearless sifting,” both academic freedom and anti-discrimination are important. But I have long worried that penalizing speech and treating it as a disciplinary concern violates valid speech rights, hampers debate, and creates opportunities for bad actors to suppress valuable speech.* The Biden Administration investigated at least a dozen universities for potentially failing to protect Jewish students’ civil rights by stopping anti-Israel protests. I strongly disagreed with those actions, but far worse are the Trump Administration’s arbitrary and vindictive attacks on specific universities, which use Title VI as a weapon. (Interestingly, the latest letter from the Trump Administration to Harvard drops the pretext that the issue was ever antisemitism.)
- Alex Gourevitch makes an important point that the whole framework of preventing harm to students especially threatens the right to protest, because protests involve “public expressions of hostility toward political views and often the people who hold them.” I would add that protests are collective actions, during which individual participants can say a range of things. If a whole protest is shut down or punished because of what some people say, then all the other people’s right to protest has been curtailed.
- There is a live debate about whether educational institutions, as opposed to individual faculty and students, may or should speak. Proponents of the Kalven Report argue that speech by university leaders may chill individuals’ dissenting speech and purport to represent employees and students who cannot determine what the college says in their name. Critics of the Kalven Report argue that universities should be able to speak freely in the public sphere and doubt that these institutions could or should be neutral. I served on Tufts’ committee that considered these issues, and I am proud of our report, but I can’t describe it yet because it hasn’t been released. I would only say that this is a complex topic because institutions communicate in so many ways. Statements by university presidents are just one example.
*See also: freedom of speech for universities (2003), free speech and school discipline (2006), a theory of free speech on campus (2009), free speech at a university (2014), science, law, and microagressions (2017), podcast on free Speech, democracy, and campus discourse (2024), etc.
