Solutions for Higher Education

Episode 2: Free Speech


When, if ever, is it permissible to curtail the right to free speech? This has been a hot topic at many colleges and universities; this episode digs into the legal issues and looks at what the university role is in the debate.


Full Transcript

Steve Meredith: Welcome to Solutions for Higher Education. I'm Steve Meredith and with me as always is Scott Wyatt, the president of Southern Utah University. Hi, Scott.

Scott Wyatt: Hello Steve, it's good to be with you today. 

Meredith: Nice to see you again. Today we're going to talk about an issue that is much in the news, and the source of some controversy, perhaps at colleges and universities more so than anywhere else, and that is the issue of free speech, and when, if ever, it is permissible to curtail the right to free speech. As a former attorney before you got into higher education administration, I'm curious as to your thoughts about all that. 

Wyatt: Well, it's interesting because universities and colleges today find themselves between competing interests. On the one hand, we really want an environment that is welcome to all. We really want our students to be respectful and courteous, and to make a place where everybody feels comfortable, wanted, welcome. But in order to do that, too often times there is a temptation to curtail speech. You know, the kind of speech that creates an environment that might be less than warm and welcoming to everyone. And we sometimes attach a name to this type of speech called "hate speech". Speech that expresses negative and disparaging things about groups. 

Meredith: Groups that are typically thought to be either minority or aggrieved in some way, or worthy of special protections under the law perhaps?

Wyatt: Yeah, or groups that have been marginalized in one way or another, and so it's just a real temptation that . . . universities—at least public universities—are government spaces, and the employees are government employees. The president of the university (that's me), faculty (that's you), and all of the staff and faculty members—we're actually government employees. Sometimes we don't think that. We're members of the executive branch of government, and therefore, the First Amendment protections of free speech—which bars government from denying free speech—applies to us. We're government. The First Amendment was written to keep us from censoring speech. So some speech can be offensive, but the First Amendment was written to keep us from barring that speech. This is a really interesting world. You're a musician, so you're familiar with the case that was decided June of 2017. It's a recent decision about The Slants. 

Meredith: Right, indie rock band. 

Wyatt: Out of Portland. 

Meredith: Right. Asian Americans who decided to take a derogatory racial term and name their band that to sort of commandeer the term and turn it into a positive. 

Wyatt: Yeah. So they went to the patent office and said, "We want this name, we want this name ours." And the patent office says, "You can't have it because this is an offensive term. This is disparaging." The language that the patent office used in statute was that they "cannot register a trademark which may disparage persons living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute". So, they said, "You know what? We're not going to let you used that name. Period." And so they appealed it at the Supreme Court, the Supreme Court said, "We're infringing on free speech here. This is what we're not supposed to do. This is amendment number one." 

Meredith: And was it a divided court?

Wyatt: Yeah, you would think it would be because the issue of speech, the issue of hate speech (demeaning comments, the protection of minority or other groups that may have some history of being marginalized)… Republicans and Democrats don't always have the same view on this subject. And the Supreme Court is made up of those who were appointed by both Republican and Democrat presidents, but in this case, the case was decided 8-0. Every single justice that participated joined in declaring that this group could call themselves The Slants and they were entitled to protecting that name, that they could trademark that name. 

So here's what the opinion said. Justice Alito wrote the opinion in The Slant's case and he referred to the idea that government may restrict speech expressing ideas that offend, and he said that strikes at the heart of the First Amendment. This is a quote from him: 

"Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar grounds is hateful. But the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate." 

Interesting, isn't it? That we simply cannot trust government—and at public universities, all employees are government—we cannot trust government to censor speech. We cannot turn over to government employees the ability to tell us what we can and cannot say. To regulate what people communicate based on the content of that speech. There's obviously a few very, very limited exceptions like fraud and defamation and incitement for violence—those kinds of things—but in general, and clearly what the Supreme Court unanimously just said, is that hate speech is protected constitutional speech. 

Meredith: So what is the university role? I mean, we want to educate our students, we want to make them active citizens, but we also want them to feel safe and protected, and I know that there's a certain amount of feeling on campuses across the country where someone saying something that I deem to be hateful makes me feel physically unsafe or mentally unsafe. And there have been people in your position that have advocated for the creation of what are called "safe spaces" at colleges and universities. What's your sense about that? 

Wyatt: So it strikes me that one of our deepest challenges in America today is divisiveness. It is the inability of Republicans and Democrats to work together; that the challenges we face between different groups of people see to be getting worse, not better; that we're really struggling with these kinds of things, and the beauty of it, in our positions anyway, is that on a campus, we have a great opportunity. And the opportunity that we have is not to censor speech to make people feel comfortable. Not to say, "You're ideas are acceptable" and "Sorry," to someone else, "your idea's are not," so that "you're welcome" and maybe "you're not as welcome," or, "you need to stop saying what you're saying or else we'll throw you off"…but rather, this is a great opportunity for us to invite onto our campuses people of all backgrounds and beliefs and ideas, and help them process those ideas in a way that both meets the demands of the First Amendment and helps us become a better nation, a more cohesive nation.

That fact is there that we will always have reason to be offended, and we will always try to reduce offense, you know. I mean, I can express my opinion as the president of the university that we should not make any negative racial comments, for example. We shouldn't do that. But as the president, I can't punish that or prohibit that. So I can express my free speech of, "Please, be respectful," but the best thing that we can do is to help those who might be offended or those who are causing the offense to come together and talk it through. The great saying about America is that, "We are a marketplace of ideas." And Steve, I know you've heard that phrase before, "the marketplace of ideas," and what that comes from is years and years of both philosophy and Supreme Court decisions, but it's drawing analogies between speech and products—goods and services. So we trust that the market is the best place to…you know, if you put out a bad product, it's going to…nobody's going to buy it eventually. So we've got a couple of options when a speaker comes onto campus that is considered by many to be offensive. 

Meredith: And that happens all the time? 

Wyatt: All the time, yeah. We're always reading about a speaker being disinvited or something like that. We've got a couple choices and the one choice is to say, "Bring it on. We're the marketplace of ideas. We are a government sponsored university, and it is our mission to provide a free market of ideas in order to teach, in order to allow this market to work. And we know that the best ideas eventually surface to the top and bad ideas are rejected." That's one way to do it is to say, "Bring it on!" And we combat bad ideas with good ideas. We help people learn how to be critical thinkers, how to take offense and turn it into evidence of, "How do I respond to that?" The other alternative is to try to censor it and as always, we're government, we try to push a speaker off or something like that and it ends up bringing more attention to the bad idea than what the speaker herself or himself would have done in the first place. So as university employees, our mission is to allow speech, to help our students process that speech…to help them find ways to not be offended by it so that we become more divided, but rather, to find ways to think through the ideas—to talk through them—to allow the market to work. 

Meredith: And strengthen your debating skills or to have a conversation about, "Why I disagree with your point?"

Wyatt: Our standard method is to say, "You're a bad person. You said something bad and hurtful, so you're a bad person." Well, that's not necessarily true. It might be true, but it's not necessarily true. And to say that "you're a bad person" is polarizing. It's the same thing that causes Republicans to think that Democrats are bad and Democrats to think Republicans are bad and therefore we don't want to cooperate or do anything, and therefore Congress gets gridlocked and the country comes to a standstill and our differences continue to explode. 

Meredith: This is a topic I'm sure we're going to come back to because it is a raw sore right now in America, and you know, I so appreciate your viewpoint both as an administrator and as an attorney, because you have a background that most of the rest of us here at the university don't have. And your commitment to free speech I think some would look at you and say, "Well, he is of a particular political persuasion. That's why he's saying this." Your attachment to free speech is more an attachment to the rule of law. 

Wyatt: It's to attachment of the foundation of the form of democracy that we have. And once you take away that free speech, you're on a path to losing free government. You're on a path to totalitarianism where government is trying to dictate the way you think in addition to the way you act. That's the most dangerous thing we can do. And so on university campuses, we have a job to be the greatest examples. If you're a real university then you welcome all ideas, and you help everyone work through those ideas. And ultimately, through the processes that we teach and experience, the best ideas always surface to the top. 

I was a member of the Utah Legislature several years ago and somebody ran a bill that was intending to dictate to public schools certain things that they would need to teach in biology. 

Meredith: Yeah, we see this around the country all the time.

Wyatt: Yeah. So you can't teach evolution, you need to teach creationism. There's nothing more dangerous than government saying, "This is the way we should think and this is the way we should teach." We need to recognize that science has its way of studying and learning and processing and developing and for thousands of years, government has tried to stifle speech, and it has not gone well for any society. 

Meredith: Yes, option two that you mentioned of the two options never works out well, ultimately.

Wyatt: Yeah, just look at the past. It's always taken us down the wrong road. So we are in a great place. We need to make those who have any kind of viewpoints welcome on our campuses. We need to create, if I can borrow the phrase, we need to create universities that are safe for everyone. Because if there's somebody that's making horrible statements—let's say that there's somebody who has what we think is a really awful, backward view of gender, or race, or disabilities, or any of these kinds of things—we actually want them on our campus. Because we want to have a shot at it. We want them to feel comfortable. We don't want to run them away. We want to have the chance to teach them. That's what we do, we teach. And we prepare people to be fully engaged members of this self-government that we're so proud of. And if we go the other direction and start punishing people and pushing away people who do things that are constitutionally protected—that are opinions that may not be reasonable or sensible, but there nevertheless fundamental opinions of people—if we push them away, we will never have a chance to reach them. We will disenfranchise them. That's the worst disservice we can do.

Meredith: Well, and it not only strikes against the foundation of the Constitution, but it strikes against the foundation of what the academy says we're going to do. We say we're going to teach people to be good critical thinkers. And part of that, I think, is the assumption that you're going to hear some ideas that are not particularly good ideas, and that you need to be able to pick your way through those bad ideas. 

Wyatt: Right. One of our jobs is to make sure that every conservative student that comes on our campus—I'm using the word "conservative" in a very general way—but every conservative student needs to be confronted by liberal ideas. And every liberal student needs to be confronted by conservative ideas. Now the world isn't black and white, liberal and conservative, but the point is that we all need to be confronted by ideas that we disagree with. We all need to be subjected to ideas that ultimately, in one way or another, offend us. And we need to not be offended by that! We need to take this as an academic enterprise. We need to say that there is no better time of our lives, referring to the youth in particular who come on our college and university campuses, there's no better time in our lives for us to help them work through their biases and prejudices in a really health way. I fear that we have a tendency to push them out—the people that say things that are hurtful—that we tend to just push them away, or gag them or silence them, and the outcome of that is always worse than the other thing. 

Meredith: This is such an interesting conversation, and I know that this conversation is going on in college boardrooms across America right now. 

Wyatt: I had a Pulitzer Prize winning historian on our campus recently who said to me, "I can't tell you how lucky you should feel, because at Southern Utah University, liberal and conservative views are both welcome. Because," he said, "they're not on my campus. You can only express one side." That's really pretty dangerous. The ultimate test of whether you are confident that you're right or that any of us are right is that we allow the opposite view to be expressed. That's the ultimate test. Because if we know we're right, we're…the other views don't make us insecure. And so we need to welcome ideas that we disagree with so that they can be exposed in the light of day and our students can understand how to process these conflicting ideas, these notions that are in violence with each other—verbal violence—and work through them in an intellectual way rather than in a violent way. This is the gift that we have for democracy. This is why universities prize their task so highly. It's because we are indispensable to democracy. We can make it or break it depending on how we respond to this challenge of free speech. I hope we do it well.

Meredith: You've been listening to Solutions for Higher Education with Scott L Wyatt, the president of Southern Utah University. Thanks for listening.