Academic Freedom and the Scope of Protections for Extramural Speech

Every semester brings a fresh round of incidents of professors coming to public attention for the wrong reasons, testing the ability of college and university leaders to work through the controversy without sacrificing institutional values. To take a recent example, during the Brett Kavanaugh confirmation hearings, Georgetown University was forced to issue a statement defending the “right of our community members to exercise their freedom of expression” after a tenured member of the faculty briefly had her Twitter account suspended for posting that “entitled white men” deserved castration and “miserable deaths.” So long as such comments did not “substantially affect their teaching, research, or University service,” Georgetown’s statement insisted, faculty members were not subject to university discipline for their extramural remarks. In the aftermath of the Kavanaugh hearings, Brooklyn College pointed to First Amendment protections while resisting calls from students to dismiss a business professor who joked in a blog post that “the Democrats have become a party of tutu-wearing pansies” who had jumped on “spin-the-bottle crimes.” In the midst of such controversies, colleges and universities have often emphasized the freedom that members of the faculty enjoy as private citizens but have struggled to explain why higher education institutions should take no notice of how faculty members exercise that freedom.

It is important that colleges and universities act to protect the rights of faculty members to speak out about matters of public concern even when their views are controversial, but we need a better explanation of why that should be so. No doubt professors sometimes behave irresponsibly in public or voice ill-considered, mistaken, or even disgusting opinions. Nonetheless, institutions of higher education would be worse off if they regularly sought to censor such speech by members of the faculty. It is no easy task to explain to skeptical students, parents, alumni, and donors why that might be true, however. Certainly, it is not obvious why the vital interest of the university in fostering high-quality teaching and scholarship is enhanced when professors get into heated political arguments with members of the general public on social media. I believe that colleges and universities need to protect such speech not because it is central to academic freedom as such but because failing to protect the right of faculty members to say controversial things in public will tend to undermine the freedom for scholarship and teaching that we most value. An institution’s brand should take account of the fact that colleges and universities are places where people voice controversial ideas, where competing ideas are welcome, and where ideas can be fearlessly debated, defended, and rejected.

Controversies around Extramural Speech

The political activism and speech of professors once stirred up only local controversy. For better or for worse, modern technology has given professors’ utterances a greater reach. Social media permanently preserves passing thoughts, decontextualizes them from their initial setting, and promises the possibility of reaching a wider audience. The gatekeepers who might once have filtered out the more dubious op-eds from the pages of a newspaper can now be circumvented with the immediacy of a blog post. Meanwhile, interest groups and media figures have found it profitable to stoke outrage by publicizing any controversial statement that can be ripped from the Twitter feed of a previously unknown college professor. The challenges associated with extramural speech are unlikely to go away anytime soon.

Institutions of higher education are hardly the only organizations trying to navigate this new information environment. Businesses have likewise found themselves enmeshed in public scandals when wayward employees have said or done something controversial in public. For-profit enterprises have often addressed such scandals by simply cutting ties with the individual at the heart of the controversy. We would hope that colleges and universities would be more tolerant of faculty who espouse controversial ideas, but the analogous controversies that arise in other types of organizations highlight the very real difficulties that institutions face when such scandals erupt.

Tolerating extramural speech is hard, because the damaging consequences to institutions are sometimes real. College and university leaders can no doubt be overly cautious in anticipating the harm that might result from an ill-considered tweet, but that is not to say that there are never such consequences. There can be financial and political fallout when members of the faculty say unpopular things in public. Parents and students might worry about whether professors will treat all their charges fairly if those professors act as strident partisans and engage in emotional political debates in public. We might think it awkward—or worse—when a university dedicated to the pursuit of truth retains on its faculty a professor who, in his or her free time, traffics in conspiracy theories or promulgates obvious falsehoods.

Defending the right of members of the faculty to express themselves freely in public is not costless, but the cost is worth paying. In its foundational 1915 Declaration of Principles on Academic Freedom and Academic Tenure, the AAUP asserted that academic freedom consists of three elements: freedom of research, freedom of teaching, and “freedom of extramural utterance and action.” The Association recognized that it was this third freedom of “university teachers to express their opinions freely outside the university or to engage in political activities in their capacity as citizens” that was often under threat. In 1940, the organization reemphasized its position that “when they speak or write as citizens,” professors “should be free from institutional censorship or discipline,” though it urged them to “exercise appropriate restraint” as befitting their role as scholars when engaging in such extramural activities. But, of course, professors sometimes fail, as other people do, to exercise appropriate restraint when engaging in public debate on subjects about which they care passionately, and even when they do behave in a sober-minded fashion, they might find that this is not enough to insulate them from public controversy when the nation itself is divided and inflamed.

Academic Freedom versus Free Speech

Although extramural speech might deserve protection, it is not obvious that it can be integrated into a broader concept of academic freedom alongside freedom of research and teaching. Former Yale Law School dean Robert Post has pointed to the complication of treating extramural speech as a natural component of academic freedom. Post has emphasized the different principles that underlie our ideas about law and speech rights in different domains. Of particular importance for our present purposes, he has distinguished the conceptual logic that justifies academic freedom in a university setting from the logic that justifies free speech more generally. Notably, he argues, extramural speech tends to share in the characteristics of free speech rather than the characteristics that can be found in the core components of academic freedom.

The rationale for respecting academic freedom rests on the value of expertise to society. In his 2008 Julius Rosenthal Lectures at Northwestern University, Post noted that “universities are essential institutions for the creation of disciplinary knowledge, and such knowledge is produced by discriminating between good and bad ideas.” Securing the right of free speech generally requires emphasizing our inability, or unwillingness, to distinguish between good and bad ideas. Academic freedom, by contrast, incorporates within itself the effort of a scholarly discipline to filter out bad ideas. Knowledge produced within a scholarly setting is routinely vetted, assessed, and, if necessary, censored. The scholars who emerge through that process can boast credentials that vouch for their expertise within their chosen discipline, and on the basis of that expertise they in turn can demand autonomy to operate within the bounds of professional norms. That claim to specialized knowledge justifies the insistence of scholars that nonspecialist administrators, trustees, or politicians not interfere with their choices about what or how to teach or the direction of their scholarly inquiries. In short, as Matthew Finkin and Robert Post concluded in their 2009 study of the work of the AAUP’s Committee A on Academic Freedom and Tenure, “academic freedom establishes the liberty necessary to advance knowledge,” with the understanding that knowledge is best advanced not through the complete freedom to utter every passing thought but through the rigorous and disciplined application of scholarly modes of inquiry appropriate to particular areas of study.

Free speech rests on a different foundation from academic freedom. The rationale for respecting free speech is a democratic and egalitarian one. We respect the right of individuals to express themselves even when what they want to express is widely considered to be erroneous or absurd. While we may each come to our own conclusions about the value of fellow citizens’ contributions to public discourse, preserving freedom of speech requires that the state refrain from deciding that some contributions can be suppressed because they are of limited value or widely discounted. Freedom of speech presumes the freedom of the individual to opine without regard to standards other than the dictates of his or her own conscience and the minimal requirements of the law. By contrast, scholars are failing to do their job—and may be subject to discipline— if they do not reject ideas that have been tested and found wanting. In the words of Finkin and Post, “academic freedom consists of the freedom to pursue the scholarly profession according to the standards of that profession.”

On this account, extramural speech looks far more like free speech than part of academic freedom. Perhaps ironically, professors are understood to have greater freedom to opine on subjects about which they know little precisely because in such contexts their claim to the authority to speak is based on their equal standing with other citizens as participants in a democratic society rather than on their special standing as scholars and experts in an academic community. An engineering professor who makes a hobby of Holocaust denial might expect to be shielded from professional repercussions, but a historian of twentieth-century Europe espousing the same views should expect closer scrutiny and likely adverse professional consequences. If the extramural speech of professors has more in common with free speech than with academic freedom, why should colleges and universities offer particular protections for it? Public universities, of course, are bound by the US Constitution to respect the right to free speech, but why should academics insist that any institution of higher education extend protections to professors speaking out in a nonscholarly context?

Free Speech and Prophylactic Rules

Protections of extramural speech are best thought of as prophylactic rules. So-called prophylactic rules are common in American constitutional law. Law professor Brian Landsberg has characterized them as “risk-avoidance rules that are not directly sanctioned or required by the Constitution, but that are adopted to ensure that the government follows constitutionally sanctioned or required rules.” They “build a fence around the Constitution” to reduce the risk that core constitutional commitments are violated by discouraging behavior that might be innocent in itself but that unacceptably increases the probability that constitutional violations will occur. In 1938, for example, the US Supreme Court struck down a city ordinance that required those wishing to distribute literature on city streets to get the prior written permission of the city manager. From the court’s perspective, giving the city manager this kind of standardless discretion over permits created impermissible risks that legitimate free-speech interests would be violated in individual cases, even though the city manager might in many instances use that discretion in perfectly reasonable ways. The court wanted to tie the hands of city administrators not necessarily because freedom of speech had been violated but because the permitting requirement made violations more likely.

To understand why protecting extramural speech might be an important prophylactic rule for protecting academic freedom, consider how universities might operate if extramural speech were cast outside the scope of protected speech. If faculty members could be dismissed for what they say in public, then the core mission of the university to advance and disseminate knowledge would come under pressure and be subverted. If higher education institutions were to construct a regime to monitor social media for professors making controversial statements or adopt the view that professors could be dismissed if students or alumni objected to statements that a professor made in public, the practical scope of free inquiry on campus would be diminished.

Perhaps the easiest case for insisting on such protections comes in the context of extramural speech about matters closely related to the scholarly expertise of the speaker. Colleges and universities should encourage faculty to bring their expertise to bear on matters of public concern and express their informed judgments to public audiences when doing so might be relevant to ongoing public debates. No doubt the first task of professors is to communicate the fruits of their scholarly labors to the scholarly community and to their students, but the public interest in maintaining universities as bastions of free inquiry is that the pursuit of truth might ultimately be useful to society at large. If we are to make the most of scholarly knowledge, we need to design institutions and practices that facilitate the diffusion of that knowledge.

If extramural speech is unprotected, however, faculty will be discouraged from sharing what they have learned and will be subject to sanctions that arise from their scholarly pursuits. Professors are properly subject to discipline if their teaching and research do not meet professional standards, and on first impression we might think it would be unobjectionable if scholars were held to the same standards when they speak publicly about issues that fall within their expertise. But professors are likely to fall short of our normal expectations for scholarly discourse when engaging in public debate. There are some venues, such as testifying in a legislative hearing, in which scholarly standards might be reasonably maintained. But in many contexts in which public arguments take place, scholarly corners will almost unavoidably be cut. A short newspaper op-ed will not provide the author with enough space to add the necessary qualifications, supporting evidence, and consideration of opposing points of view. A Twitter thread will certainly fall short of what we would expect from a responsible scholar speaking in an academic forum.

The exigencies of public debate not only truncate academic arguments, but they also frequently necessitate rhetorical moves that we would appropriately criticize if they were made within an academic context. Professors often participate in public debates as passionate advocates and not merely as detached experts. We can reasonably hope that professors will be responsible and sober-minded participants in public discussions when they talk about their areas of expertise, but we cannot reasonably expect that those contributions to public debate would hold up to the scrutiny of a tenure file. What is worse, if professors are being drawn into public debates about matters relating to their research, then that would suggest that their research is necessarily going to be seen as controversial. Pressuring colleges and universities to sanction those professors because of the controversial content of their extramural speech would be tantamount to pressuring them to sanction professors for the controversial content of their scholarly research. If extramural speech were unprotected, faculty members could secure a refuge for pursuing their scholarship about controversial topics unmolested only if they assiduously refrained from bringing that scholarship to public attention.

Beyond Scholarly Competence

Controversial extramural speech on topics distant from the scholarly expertise of the professor in question are more difficult to justify protecting. Cases certainly exist of professors finding themselves enmeshed in controversy as a result of public statements that build upon their scholarly expertise, but many such controversies involve professors engaging in public debate on matters about which they have no special expertise and on subjects they would never be hired to teach or research at any self-respecting institution of higher learning. Why protect speech of this sort?

One type of concern with not protecting extramural speech unrelated to scholarly expertise is that it would leave professors vulnerable to being dismissed from their positions for pretextual reasons. It is all too easy to imagine unscrupulous administrators leaping on the excuse of a potentially controversial public comment to rid themselves of a faculty member who has crossed them in other ways. Public statements that would be unremarkable if made by a professor in good standing with the administration might be held out as intolerable if made by a professor otherwise at odds with university leadership. Extramural speech would become a loophole by which administrators could circumvent tenure and gut academic freedom, requiring that unpopular members of the faculty take extraordinary precautions not to provide an excuse to dismiss them.

But we should worry about leaving extramural speech unprotected even if administrators are not nefarious. Colleges and universities strive to foster creative intellectual environments in which it is possible for members of the campus community to explore difficult questions and see where they lead. They do not try to confine those explorations to the classroom, the library, or the laboratory. Professors and students alike are allowed to stretch boundaries, float new ideas, and probe unconventional ways of thinking. Flights of fancy on the quad or in the pub might well inspire new angles of research or innovative approaches to teaching. To be sure, many such undisciplined conversations will lead nowhere and plenty of hobbyhorses will remain nothing but a diversion, but the openness of a campus to such provocative exchanges helps provide the setting for important academic work.

If extramural speech distantly related to scholarly inquiry is held to be wholly unprotected, then professors will find the intellectual environment chilled. They would appropriately be less willing to say what they think is true and embark on new paths of discovery if they worried that an unguarded public remark that generated controversy could become the basis for dismissal. The censorial structures needed to monitor, investigate, and punish extramural speech would dampen freedom of thought more generally. A faculty intent on self-censorship to avoid the possibility of becoming a source of public controversy is unlikely to be able to pursue research confidently or facilitate lively classroom discussions. A biology professor who could be punished for publicly expressing a careless political opinion is unlikely to feel secure in challenging local orthodoxies within her own field of study. We should be concerned with protecting the ability of the biology professor to express ill-informed opinions about politics not because the ability to express ill-informed opinions about politics is part of academic freedom but because the kind of stultifying intellectual environment in which one is wary of expressing a political opinion is not likely to be conducive to the voicing of bold new ideas and the rigorous exploration of them.

Institutions of higher education should want to construct a vibrant intellectual ecosystem in which members of the campus community are unafraid to propose unconventional ways of thinking about the world and explore a trail of ideas wherever it might lead. Ultimately, we should want those ideas to be subjected to the disciplined scrutiny of careful scholarship, and it is the process and product of scholarship that colleges and universities should be most zealous in protecting. But intellectual ecosystems are fragile, and we should be cautious not to disrupt them. Academic freedom is more likely to thrive if professors do not have to worry that an incautious remark that lands them in hot water will be parsed by university leaders to determine whether the controversy resulted from their teaching and research or involves merely their extramural speech. We should be comfortable giving the faculty freedom to engage in idle speculation and boisterous public debate because we want to give them the freedom to speak their minds and to develop the habits of thought that allow them to think in ways that are creative and unorthodox, sometimes ingenious but sometimes just wrong. Cultivating a professoriate willing to speak its mind on any topic and in any forum is a necessary precondition for intellectual progress. Extramural speech might not contribute much to that progress, but failing to protect such speech might well hamper the kind of advancements in human knowledge that we most care about.   

Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University, an inaugural fellow at the National Center for Free Speech and Civic Engagement, and the author of Speak Freely: Why Universities Must Defend Free Speech. His email address is [email protected].