Dear Administrators: Enough With the Free-Speech Rhetoric!

Dear Administrators: Enough With the Free-Speech Rhetoric!

It concedes too much to right-wing agendas.

By Richard Amesbury and 

Catherine O’Donnell

November 16, 2023

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cademics are losing the support of the public. We read it in newspapers, we see it in surveys, we feel it in our bones. There are many dimensions to this problem. One is the claim that colleges restrict speech and lack intellectual diversity. Earlier this fall, the Foundation for Individual Rights and Expression ranked colleges in terms of their commitment to free speech, praising a few but concluding that “the free-speech climate at even these campuses has room to improve.” The American Bar Association is considering a proposal that would require law schools to adopt written free-speech policies that “protect the rights of faculty, students, and staff to communicate ideas that may be controversial or unpopular.”

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These concerns have attracted the attention of lawmakers here and abroad. The United Kingdom has just created a director for freedom of speech and academic freedom position under the Higher Education (Freedom of Speech) Act 2023. The newly appointed “free-speech tsar,” Arif Ahmed, a professor of philosophy at the University of Cambridge, has promised to defend free speech “for all views and approaches — postcolonial theory as much as gender-critical feminism.” And recently, the House Committee on Education and the Workforce released a report on “Freedom of Speech and Its Protection on College Campuses.” Citing the philosopher John Stuart Mill, the report begins with the claim that “a ‘marketplace of ideas’ is necessary to seek truth effectively” and concludes that “the First Amendment is under threat on college campuses across the nation, and the federal government must step in and provide protection for students and faculty.” Perhaps sensing a cultural opening, Princeton’s James Madison Program in American Ideals and Institutions has released the “Princeton Principles for a Campus Culture of Free Inquiry,” which alleges that “many of our nation’s colleges and universities are failing to maintain cultures of free and vigorous inquiry,” and calls on administrators to “allocate resources to promote intellectual diversity.”

Whether and by whom free speech is under threat on campuses are hotly debated questions. Less commonly examined, however, are the assumptions that free speech is a cardinal virtue of higher education, and that colleges should aspire to a diversity of opinions. Are these goals in their own right, as college administrators often seem to think, or means for achieving something else altogether?

Our contention is that calls for greater freedom of speech on campuses, however well-intentioned, risk undermining colleges’ central purpose, namely, the production of expert knowledge and understanding, in the sense of disciplinarily warranted opinion. Expertise requires freedom of speech, but it is the result of a process of winnowing and refinement that is premised on the understanding that not all opinions are equally valid. Efforts to “democratize” opinion are antithetical to the role colleges play in educating the public and informing democratic debate. We urge administrators toward caution before uncritically endorsing calls for intellectual diversity in place of academic expertise.

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he function of higher-ed institutions is not to mirror public opinion but to inform it. A diversity of opinion — “intellectual diversity” — isn’t itself the goal; rather, it is of value only insofar as it serves the goal of producing knowledge. On most unanswered questions, there is, at least initially, a range of plausible opinions, but answering questions requires the vetting of opinions. As some opinions are found wanting, the range of opinion deserving of continued consideration narrows. On some fundamental questions, a diversity of defensible doctrines — what the political philosopher John Rawls called “reasonable pluralism” — may persist, as it does, for instance, with respect to certain philosophical questions. All of these are worthy of analysis and debate. But colleges are under no obligation to balance warranted, credible, true opinions with unwarranted, discredited, false ones. The purpose of considering differing opinions about disputed questions is precisely to sort the wheat from the chaff. Only those opinions that survive scrutiny deserve to be treated as authoritative, and only until something better comes along.

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    The function of higher-ed institutions is not to mirror public opinion but to inform it.

It is true that the production of expert knowledge is not the college’s only purpose. Colleges also offer themselves as places where students explore the world beyond the direct guidance of faculty. Student clubs invite speakers for all kinds of reasons, most of which have nothing to do with academic expertise. Colleges volunteer themselves as neutral hosts to students’ enormous range of views and pursuits, but this neutrality isn’t neutral: There is a moral or civic purpose to it, an implicit or explicit goal of civility. Colleges prepare students for citizenship in pluralistic societies.

Students, for their part, don’t always care: They shout down others’ speakers and invite speakers solely to provoke hostile responses. Exercises of hecklers’ veto, along with the awkward ways in which colleges vacillate between encouraging exploration and seeking civil discourse, lead to concern over whether students value free speech. They also raise questions about how free expression might itself be limited by the goods it subserves. These are important questions. But it’s also important to distinguish between students’ expression and colleges’ production of knowledge. Administrators can declare that students’ meaningful engagement with the challenges of diverse civic life requires that student clubs face as little regulation as possible. But faculty research, teaching, and sponsorship of college programming are rendered meaningful — made useful to the public — only through the application of expertise.

That expertise is cultivated within academic disciplines, battle-tested traditions of research and analysis, which are safeguarded by quality controls like peer-review and tenure. The distinctive value in such contexts isn’t free speech but academic freedom — that is, the protection, against interference, of the methods through which knowledge and understanding are reliably generated. What academic freedom seeks to safeguard are not primarily the utterances of individual faculty members, but the procedures governing their disciplined production and assessment.

Put another way, academic freedom, as distinct from free speech, entails intellectual responsibilities. Far from a license to voice just any opinion, it protects the processes by which scholars distinguish what is warranted, credible, and true from what is not. Moreover, it is worth noting that even in a legal context, First Amendment appeals to free speech carry little weight where professional expertise is at stake, such as in expert-client relationships, or where the public is entitled to reliable information, such as with respect to commercial speech. As the constitutional-law scholar Robert C. Post has pointed out, “free speech” is no defense against the charge of malpractice or fraud. Theranos founder Elizabeth Holmes enjoyed free speech, but it did not indemnify her against the charge that she had misled investors about the company’s blood-testing devices. Although the First Amendment safeguards the rights of speakers, it has also been interpreted as protecting the rights of audiences outside public discourse. Post argues that, notwithstanding important distinctions between commercial information and expert knowledge, they are alike in being addressed to audiences who have a right to rely, within limits, on what they are told, and that “constitutional protections for the dissemination of expert knowledge should therefore be roughly analogous to those applicable to the circulation of commercial information.” Insofar as colleges have a fiduciary responsibility to students and the wider communities they serve, faculty, when speaking as experts, are similarly obliged to abide by the professional norms on which their expertise is grounded.

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The truth-seeking function of colleges and the social value of scholarly expertise are, it would seem, reasonably well understood with respect to the natural sciences, medicine, engineering, and certain of the social sciences. Few would expect a biology department to hire a creationist or a geography department to host a flat-earther. In these contexts, a premium is placed on getting it right, in part because the social costs of getting it wrong are significant. Structural engineering is seldom described as a “marketplace of ideas.” Even in the sciences, though, expertise can be met with skepticism, and fields that adjoin the public sphere, and which thus might be expected to inform public opinion (what the sociologist Gil Eyal calls “regulatory sciences”) — climate science and epidemiology, for instance — are often framed by hostile parties as “political.” The effect of such a framing is to create the impression that they are “mere opinion,” which is another way of saying that, when it comes to these subjects, there is no such thing as expertise; all opinions are equal.

The humanities and the more-humanistic social sciences, perhaps because they frequently make claims about matters also hotly debated in the public sphere, and perhaps because their practitioners often argue for the reconsideration of texts, events, and social processes, have particularly struggled to resist being cast, even by college administrators, as simply a speaker’s corner in which every perspective should somehow be accommodated. Here, one is told, colleges should seek a diversity of opinion, and every opinion deserves to be heard. Accepting this role for the humanities and social sciences, however, means that their faculties risk losing the ability to judge any ideas (or proposed curricula or public programming) unworthy of sponsorship. Offering up the humanities and social sciences as the realm of free speech deprives those faculty of academic freedom and deprives the public of the faculty’s expertise.

Suggesting that faculty activities are different from student clubs, and that academic freedom is distinct from free speech, is not radical. Yet administrators choose again and again to accept a free-speech framing that undermines colleges’ central role of knowledge creation. Why? We academics tend to want to understand ourselves as egalitarians, and it can feel awkward — undemocratic, even — to claim authority based on expertise. Facing increasing skepticism from the public, we are loath to seem elitist. But we’re not claiming a universal expertise, just a limited scholarly expertise, and it’s for the public to judge how much that kind of expertise matters. For our part, we either stake our claim to the expertise our training and experience provide us, or we stake no claim at all. Nor is it elitist to insist that scholars are best suited to judging whether curricula should be adopted, or speakers sponsored as part of academic programming. Our workplace is not the world, nor even the republic. Speakers can hold forth in all kinds of forums (including student clubs at the college itself), even if faculty don’t sponsor them. Ideas and values can be shared and vetted outside the college if their proponents don’t think that scholarly vetting and scholarly audiences are needed or desired. Administrators, in short, can more robustly defend colleges if they take a more modest view of what colleges are. Only by disavowing pretensions to be the public sphere can colleges perform their critical role in relation to it.

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here is another reason that administrators accept — or at least, struggle openly to reject — a free-speech framing. Free-speech claims have opened the door to well-funded campaigns to inject particular points of view into college curriculums and teaching, even when these opinions have not undergone or survived the critical scrutiny that the college is meant to provide. In this way, the rhetoric of free speech is deployed to level opinion, reducing a regime of expertise to a freewheeling market of ideas, some of which enjoy the competitive advantage of intellectual venture capital. “Free speech” and “intellectual diversity” are the gates through which pours funding from donors, foundations, and state legislatures keen to align teaching and even research with ideological, often right-wing, agendas. It is no surprise that foundations like Koch and Bradley claim to be promoting the seemingly noble goal of “free speech.” Nor is it surprising that many colleges have rolled out the welcome mat, creating externally funded centers and schools that purport to provide “intellectual diversity.” Yet there has also been considerable unease, with some faculty, students, and public stakeholders deploring these centers and schools as beholden not to truth-seeking, but to the representation of particular interests.

    Only by disavowing pretensions to be the public sphere can colleges perform their critical role in relation to it.

The Princeton Principles, whose name implies an endorsement the university has not granted, are a case in point. They set out to offer a rationale for substituting legislative and donor wishes for faculty stewardship of curriculum and programming. They do so, not surprisingly, under the banner of free speech and intellectual diversity, and they serve both as an open invitation to monied interests to interfere in faculty governance of the curriculum and as a retroactive benediction for decisions long since made.

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The Principles assert that “government and private donors may fund programs devoted to fields of inquiry that they think would enhance intellectual diversity and therefore contribute to the vigor of inquiry on campus, provided they specify and justify intellectual or pedagogical reasons for the effort.” Whereas, on a traditional understanding of academic freedom, the curriculum is the collective responsibility of the faculty, the Princeton Principles state, “If there is clear and convincing evidence that faculty members and administrators are not adequately fulfilling their responsibilities to foster and defend a culture of free inquiry on campus, other agents including regents, trustees, students, and alumni groups in the wider campus network may and indeed should become involved.” Notably, the document does not specify to whom evidence of an alleged dereliction of duty must be “clear and convincing,” or by whom “intellectual or pedagogical reasons” for new program funding are to be assessed. Since faculty are imagined to be the root of the problem, however, this formulation appears to place these decisions outside faculty control.

Lots of research is externally funded, and many faculty members hold endowed chairs or work in buildings named for donors. What is the difference here, and what is the harm? Why can’t these parts of the college, whether free-standing schools or programs that reside within older departments, simply add to the breadth and appeal of the college as a whole? After all, the claim that a unit’s value resides in providing “intellectual diversity” does not in theory preclude that unit, once founded, from participating in the production of expert knowledge nor from joining the ongoing processes of faculty governance.

In practice, however, legislators — for instance, in Arizona, Florida, Tennessee, and Texas — are increasingly willing to demand detailed yearly accounting of such units’ offerings, with the implicit or explicit threat of withdrawing money should the units’ purposes differ from their own. Ironically, units funded in this way tend to lack intellectual diversity: They don’t aspire to offer diversity but only to be it. Centers such as the University of Tennessee’s Institute of American Civics, the University of Florida’s Hamilton Center, and the Civitas Institute at the University of Texas at Austin, along with the free-standing Jack Miller Center, declare themselves devoted to exploring America’s founding principles and institutions. Supporters of these institutions describe them — as Lt. Gov. Dan Patrick, a Republican of Texas, and other donors did of the Civitas Institute, and Gov. Bill Lee, a Republican of Tennessee, did of the Institute of American Civics — as ways to bring intellectual diversity to colleges that have become closed-minded clubs. But the institutions themselves are peopled by faculty who serve on each other’s boards, invite and re-invite each other to give talks, appeal to the same funders, and even publish in each other’s journals and book series. The Jack Miller Center touts itself as an antidote to colleges’ “ideological monoculture.” The phrase instead perfectly describes the ecosystem of which the center is a part.

Moreover, the simple fact that a unit is being funded because it ostensibly provides intellectual diversity means that its resources depend on its insistence that it does not fit into the college — and that the rest of the college is possessed of a fatal homogeneity. The need to demonstrate difference from the rest of the faculty and adherence to the views of funders makes it terribly difficult for these units to avoid conflicts of interest when participating in the processes through which scholars pursue truth and make decisions about curricula and programming. In short, although such efforts are frequently portrayed as making colleges democratically accountable to the wishes of the public and their elected representatives, the logic of intellectual diversity arguments is toward ever greater mistrust between colleges and the public they serve.

Administrators’ reluctance to challenge the emphasis on free speech and intellectual diversity leaves them poorly suited to defending colleges against this kind of encroachment. After all, a donor or politician is not having professors silenced; the goal is instead to make professors’ voices indistinguishable from those of people without scholarly expertise. That goal is unobjectionable outside the college: The extent to which scholarly expertise matters should absolutely not be a subject on which only scholars expound. But if that goal is achieved within the college, the college ceases to be. How do we proceed?

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n his Democracy, Expertise, Academic Freedom: A First Amendment Jurisprudence for the Modern State, Post argues that free speech is important not because every idea is worth taking seriously, but because it makes possible a public sphere within which everyone may contribute. An accessible public sphere is necessary for democracy, because democracy rests on public opinion. Post calls this value, recognized in the United States by First Amendment jurisprudence, democratic legitimation. For democratic government to be legitimate, the public must be able to understand itself as the author of its laws. The ability of citizens to contribute to public discourse is a prerequisite for the legitimacy of the state. Unlike a university, the public sphere is thus in many respects a marketplace of ideas, and a prudent principle is caveat emptor. Left to its own devices, a marketplace of ideas is under no necessity to converge on the truth. Taken alone, that account of the First Amendment’s understanding of free speech is in tension with expert knowledge, the acquisition of which requires discrimination. The creation of knowledge through academic disciplines would be undermined by a jurisprudence that insisted on content neutrality in this context. The question for Post is, thus, how the conditions required for expert knowledge might be reconciled with the comparatively permissive standards of the public sphere.

    When free speech drowns out expert speech, we all suffer.

Post argues that a First Amendment jurisprudence of academic freedom, as distinct from a First Amendment jurisprudence of free speech, takes its bearings from a constitutional value he calls democratic competence. Democratic competence is “the cognitive empowerment of persons within public discourse, which in part depends on their access to disciplinary knowledge.” Insofar as truth matters, democracy benefits when public opinion is informed by expert knowledge. This is one of the central roles of any college, and it is in terms of the value of democratic competence that academic freedom — the freedom of experts to employ disciplinary standards to distinguish knowledge from mere opinion — can be justified and understood. Democratic competence is a different value than democratic legitimation, but the latter needs the former.

As Post notes, however, a jurisprudence of democratic competence requires the courts to take up a position with respect to which putative disciplines are reliable in the production of knowledge. This is because courts defer to experts and thus have to decide which disciplines (homeopathic medicine, astrology?) produce expertise. He writes, “Insofar as the value of democratic competence safeguards the circulation of expert knowledge, it must necessarily also incorporate the disciplinary methods by which expert knowledge is created and certified. A constitutional sociology of knowledge is thus inevitable.”

Post doesn’t pursue this point, but perhaps a way of understanding our present moment is as one in which that sociology of knowledge is itself increasingly contested. (Does critical race theory produce knowledge? Gender theory? “Patriotic education”?) So it might be the case that, while democratic legitimation depends on democratic competence, as Post convincingly argues, the public recognition of competence cannot escape the public sphere; it is a matter, ultimately, of public opinion. And at the moment, the public sphere is fractured and restive. We don’t mean that it is simply a matter of public opinion which claims constitute knowledge (whether this or that claim is true or justified) — just that knowledge also needs to be recognized as such if it is publicly to be accorded a status different than that of mere opinion. As Émile Durkheim put it:

    Opinion, a preeminently social thing, is … a source of authority, and we can even speculate whether all authority is not the daughter of opinion. Some will object that science is often the combative antagonist of opinion, rectifying its errors. But science can succeed in this task only if it has sufficient authority, and it can draw this authority only from opinion itself. All the scientific demonstrations in the world would have no influence if a people had no faith in science.

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At the moment, a lot of knowledge, particularly (though not exclusively) in the humanities, while the product of rigorous and reliable disciplines, isn’t publicly perceived as authoritative. In many cases, experts enjoy no special public esteem.

No doubt much of this is deliberate, the result of political efforts to delegitimize certain disciplines, as is evident in the study of race and gender. But well-meaning administrators contribute to the problem when they portray the college — or the part of the college that includes the humanities — as a public sphere, speaker’s corner, or marketplace of ideas. To insist that the college function as a public sphere is to collapse the distinction between expert knowledge and mere opinion. Democracy, ironically, is ill-served by the democratizing of all opinion. Far from safeguarding academic freedom, calls for greater freedom of expression in academe work to relativize the disciplined conclusions of scholars. This is why we call on administrators to take a more critical approach to the rhetoric of free speech. Essential though it is, free speech is only one ingredient for democracy. When free speech drowns out expert speech, we all suffer.

To be sure, the public often has good reasons to distrust the pronouncements of “experts,” and the foundations of knowledge are subject to disagreement within the academy itself. Properly understood, academic freedom is compatible with robust debate in both the college and the public sphere about the central problems of epistemology — what we know, and how we know it. The public also is right to demand academics be able to explain not only what they know and how they know it, but why what they know matters to anyone but themselves. Academic freedom is also compatible, therefore, with robust debate about what kinds of knowledge should inform decision-making in the public sphere. In short, public scrutiny of academic conduct must be welcomed, even now, when it can feel hostile. Perhaps especially now.

If that’s right, however, it suggests that embattled academics cannot simply fall back on academic freedom. That concept is, to be sure, indispensable, but, as Durkheim observed, it has to be undergirded by public trust in academics, or, more broadly, by disciplines whose status as disciplines isn’t itself a matter of public dispute. Otherwise we end up where we find ourselves now: with a lack of public support not simply for the claims of certain scholars, but for the value of the disciplines and departments of which they are part — the very disciplines within which these claims might be knowledgeably assessed. Or a sense, at any rate, that these are just further opinions — a dissolving of expertise into a flattened-out theory of knowledge. “Free speech” is what we are left with when we recognize no experts.

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Free SpeechAcademic Freedom

Richard Amesbury

Richard Amesbury is a professor of religious studies and philosophy at Arizona State University.

Catherine O'Donnell

Catherine O’Donnell is a professor of history at Arizona State University.