A Third Way on Campus Speech

There’s no question: our country is in the grips of a free speech identity crisis. And that struggle is playing out nowhere as vividly as on American college and university campuses, where crises related to controversial speakers and speech-related faculty fracases are erupting on an alarmingly regular basis.

Two viewpoints on free speech have been key in expanding or restricting speech. But for the future, a third viewpoint would be a better guiding light.

This struggle over free speech is not new—for the country or for higher education. In the early part of the 20th century, an “order and morality” paradigm of free speech prevailed, with an emphasis on keeping the peace and preventing speech that constitutes harm. As the century wore on, a different paradigm emerged. Increasingly, Supreme Court decisions drew upon Oliver Wendell Holmes’s stirring dissent in Abrams v. United States (1919). That dissent championed the notion that “the ultimate good desired is better reached by free trade in ideas” and held sway for decades.

Now, however, Holmes’ “open marketplace of ideas” notion is being challenged head-on, with critics asking why we would want the “anything goes” mentality of the marketplace to determine what is said on campus. We have managed to ban lead paint; why not ban racist, misogynistic, homophobic, and xenophobic speech that has, arguably, caused much greater harm? And why, given their lack of academic credibility, do we allow these ideas and their champions on a college campus?

From this “order and morality” perspective, the campus should not be the kind of anything-goes arena of the public square where hate-filled, angry purveyors of false claims are afforded equal footing in the marketplace of ideas. A campus should be a community where informed rational discourse and morally permissible speech prevails. In a word, there should be order.

On the other side of the debate, free speech advocates argue that openness is more important than order when it comes to the intellectual enterprise. And we may be doing more harm—cultivating fragility rather than resilience in students—by not exposing them to ideas that may make them uncomfortable.

Many seem to be groping for some sort of “third way” that affords freedom without destroying civility; some paradigm of speech governance that allows for the free exchange of ideas that leads to learning, without the anarchic “anything goes” mentality of an unregulated marketplace of ideas.

The third way that so many of us are searching for is right in front of us: it rests with the gatekeeping authority vested in every professor holding an appointment at an American institution of higher learning. This third way is a bottom-up regulation of speech on campus rather than a mythical “no regulation” marketplace or a top-down regulation of the “order and morality” crowd.

Like most academic economists, I am fond of—scratch that—I love the “marketplace of ideas” metaphor. But it only works as a metaphor if we understand what marketplaces are. The “order vs. anything goes” dichotomy suggests that marketplaces are regulation-free spaces. When we hear the word “regulation,” our brain is trained to hear it as “government regulation,” so if we see lots of voluntary exchange, and not a lot of top-down authority, we assume that there is no regulation.

But that’s not the case. It’s not an accurate understanding of how actual markets work, nor does it describe the marketplace of ideas. In both cases, there are multiple regulating forces at work—but much of the regulatory force is bottom-up, and therefore, not as easy to see.

This power of bottom-up regulation fosters order and minimizes harm—and is already built into the market. In markets, consumers provide the most basic form of bottom-up discipline, punishing businesses with lost earnings if they do not meet customers’ demands. Creditors, contractual obligations, and the prospect of civil legal action if the business harms its customers or employees also serve as source points for bottom-up regulatory discipline, helping to ensure that businesses are run safely and according to sound business practices. When I look at the market, I see some things that I might describe as “anything goes” (e.g., “What happens in Vegas…”), but mostly what I see is a lot of people engaging in orderly, safe, and morally acceptable transactions.

This third way is a bottom-up regulation of speech on campus rather than a mythical ‘no regulation’ marketplace.

The same is true in the academy where the faculty provide the most basic form of bottom-up regulatory discipline. In their choices of readings, guest speakers, and research topics, academics select what comes into and out of the classroom, university public spaces, and scholarly research. The gatekeeping authority I describe here is a regulatory process—a process grounded in the fact that faculty possess the disciplinary expertise and local knowledge of their institution needed to render informed judgment. Given the importance of reputation in higher education, faculty have a strong incentive to consider their choices carefully and to exercise sound judgment. Peer review of teaching and scholarship serve as other sources of bottom-up regulatory discipline within and across the academy.

The approach I am suggesting here does raise difficult questions like, “Should students be allowed to issue invitations to speakers without faculty authority?” It’s a good question. In searching for an answer, let’s recognize that it is not the top-down imposition of order that gives rise to rational discourse and a community of scholars—it is the bottom-up regulatory forces of scholarly norms and professional reputation that generate these outcomes.

My description of bottom-up governance is not to suggest that only truth, beauty, and wisdom emerge in the open marketplace of ideas, any more than the disciplinary forces of market competition filter out every product and service that corrupts mind, body, and soul. The point is, rather, that the order vs. anything goes tradeoff represents a false choice. Bottom-up regulation allows order to emerge on campus as students, faculty, and administrators respect a robust understanding of free speech.

Dr. Emily Chamlee-Wright is the president and CEO of the Institute for Humane Studies, which supports and partners with scholars working within the classical liberal tradition to advance higher education’s core purpose of intellectual discovery and human progress. She previously served as provost and dean at Washington College and professor of economics and associate dean at Beloit College.