Daniel Klinghard
Professor of Political Science

At the second Faculty Assembly meeting of the Spring 2020 semester, Holy Cross faculty will vote on a proposed “Freedom of Expression Philosophy Statement.” We are told that this is only a precursor to a freedom of expression policy that will reflect the philosophy. We are also told that it will not threaten academic freedom or freedom of speech on campus generally, because it is only meant to guide decision makers seeking to decide whether to invite speakers from off campus.

Don’t buy it. The proposed philosophy statement not only stands in stark contrast to the best traditions of free expression, it directly contradicts the standards that Holy Cross currently has codified in its fundamental policy statement—the Statutes of the Faculty. Although presented as merely an administrative convenience to help restrict harmful speech from off campus, the statement is over-broad, and threatens rights that currently protect the expression of all members of the campus community.

It is true that colleges and universities today face a very difficult situation. Partisan groups are increasingly working to send speakers to campuses around the country, many of whom are deliberately provocative (think Milo Yiannopolous), some of whom have caused violence, damage, and conflict. Holy Cross does need to determine an approach to this problem and engage with students interested in inviting such speakers to campus.

But we must find solutions to this problem that do not violate well-established principles of free expression. They should be accomplished through narrowly-written policies that take care to preserve existing expressive rights. This is not just wise—it is widely acknowledged as the best practice in higher education. 

Consider the American Association of University Professors’ 1992 report on campus speech codes. The AAUP acknowledges that:

“In response to verbal assaults and use of hateful language, some campuses have felt it necessary to forbid the expression of racist, sexist, homophobic, or ethnically demeaning speech, along with conduct or behavior that harasses. Several reasons are offered in support of banning such expression. Individuals and groups that have been victims of such expression feel an understandable outrage. They claim that the academic progress of minority and majority alike may suffer if fears, tensions, and conflicts spawned by slurs and insults create an environment inimical to learning.” These are exactly the concerns that our proposed statement is designed to address.

However, the AAUP continues that “while we can acknowledge both the weight of these concerns and the thoughtfulness of those persuaded of the need for regulation, rules that ban or punish speech based upon its content cannot be justified. An institution of higher learning fails to fulfill its mission if it asserts the power to proscribe ideas—and racial or ethnic slurs, sexist epithets, or homophobic insults almost always express ideas, however repugnant. Indeed, by proscribing any ideas, a university sets an example that profoundly disserves its academic mission.” Such restrictions “cannot be justified.” Speech codes are a profound disservice to a college’s academic mission.

This AAUP statement is not merely good rhetoric. The AAUP’s standards are widely held as a measure of college and university policies across the country. They are also codified in the Statutes of the Holy Cross Faculty—Chapter VIII, Section A explicitly cites the AAUP statement as part of the official College policy on expressive activities.

The point is not that the proposed philosophy statement contradicts the Statutes of the Faculty—though it pretty clearly does so. The point is that the proposed philosophy statement is not simply filling an empty space in College policy in response to a timely issue. Instead, rights that College policy now protect will be undermined by the passage of this new statement on expression. True, we are told that this is “just” a philosophy statement, that it is “just” to control outside speakers. But one wonders why the College needs a new philosophy to accomplish such a modest goal. One wonders why the statement does not explicitly limit itself to such activity. In the legal language of free expression jurisprudence, such a statement is over-broad—it covers more than it needs to cover, and contradicts the current policy when it could be written more narrowly.

Here’s a practical example of why both students and faculty should care. Last Monday, Manhattan Institute Fellow Heather Mac Donald, who has caused controversy on college campuses for her views on diversity, gave an invited talk at Holy Cross. Before the event, student protesters filled Seelos Theater, leaving a number of interested students and faculty unable to enter. After a few minutes of Mac Donald’s talk, the protestors left the theater, leaving her to lecture to rows of empty seats; because Public Safety officers refused to admit students to the theater after the event started, those left outside the theater were effectively shut out of the event.

As protest strategies go, this one was ingenious and effective. It accomplished its goal in a way that demonstrated clear thinking, resolve, and political savvy on the part of the planners. It is also clearly contrary to the spirit of the proposed philosophy statement, which urges students to “strive to exercise our freedoms to enhance the freedoms of others.” It is hard to see these activities as anything other than the protesters using their freedom to assemble and deprive—not enhance—that freedom from students interested in hearing the talk, and from the organizers to hold such an event.

I don’t think we have good reasons to restrict such protest activity as happened on Monday night. The philosophy statement suggests that we do. Stretching the statement only a little, the statement’s insistence that “we recognize that we will be challenged to expand our own perspectives,” and that “this challenge can only be fruitful in a context grounded in mutual respect,” would also seem to condemn the students’ behavior, even as it would do nothing to prohibit Mac Donald.

Of course, no one thinks that the current administration would do such a thing. They’re clearly interested in banning Mac Donald, not the students, and perhaps that’s a reasonable goal. But future administrators can point to this philosophy statement to write or execute policies that limit student and faculty expressive rights. If you’re certain that administrators who favor your point of view will always be in power, then, by all means, you should support this statement. For my part, I’m concerned about codifying language that condemns expressive activity that is currently allowed, regardless of our current reasons for doing so.

Speech restrictions are notoriously difficult to design with precision. The lesson of nearly 230 years of free speech cases teaches us that the most innocent of restrictions tend to restrict more than they intend, and to empower officials more than we like. One must recognize that most officials in situations like this—presidents, governors, police chiefs, school principals, NFL commissioners, college administrators—are ultimately biased to order, to de-escalation of uncomfortable tensions. When besieged by controversy, they will seek shelter under the rules, and even broaden their applications to provide themselves as much cover as possible. So today’s racist gets banned, but so does tomorrow’s transgender activist, if the case can be made that their language does not demonstrate the philosophy statement’s “mutual respect.” This difficulty of effectively singling out the expressive activity we don’t want without catching up the activity we do want doesn’t mean we can’t have a new freedom of expression philosophy. But it does mean that we need to be very cautious when proffered a new philosophy that clearly limits our existing rights.

There are other things to be concerned about in this philosophy statement. At the end of the statement is a curious note that “our institutional identity places Holy Cross in relationship with other institutions and communities,” including the Catholic Church and the Jesuits. It notes that “the College’s attention to these relationships includes a commitment to dialogue rooted in our self-understanding and the practices that flow from and advance our mission.” This makes a whole lot of sense, as it pretty much states the truth of our relationships in the broader community.

But what do these relationships have to do with my expressive rights? Or yours? Advocates of the new philosophy statement will tell you not to be concerned, that they don’t mean for it to impose a religious test on anyone’s speech. But then why have it there at all, in a statement ostensibly devoted to the notion of free expression? And what would it mean in the hands of an administrator who feels that speech advocating LGBTQ+ rights puts Holy Cross faculty and students into tension with the Church, and with “the practices that flow from and advance our mission”? If the Bishop feels that it does, can he point to our policy as a justification for asking us to shut such speech down?

Looking into the history of the First Amendment, I’m struck by the fact that the way that social institutions—particularly religious ones—typically interact with individuals’ expressive rights is to restrict them. Schools’ interests in maintaining order, churches’ interests in hiring believers, communities’ interests in prohibiting disruptive advertisements, all have been cited as justifying restrictions on otherwise expansive rights of individuals to express themselves. They have never, as far as I am aware, been used to defend the rights of dissent, speech, or expression. Make no mistake; this element of the proposed philosophy statement can only serve to delimit the range of expressive activity philosophically justified on this campus—whether the current administration intends that it do so or not.

Perhaps it won’t. I’m sure no one intends for it to do so. But there is no analogue in the current policies enshrined in the Statutes. I have to think that we would just be better off without it.