Dean Chemerinsky Discusses Free Speech

By Helena Chen-Carlson

UCI Student Life & Leadership hosted an event series last Monday and Tuesday on “Free Speech on Campus” and The Nuances of Free Speech,” inviting Dr. Erwin Chemerinsky, Dean of the School of Law, to expand on the importance of protecting the freedom of expression both on college campuses and in society at large.

“Free speech on campus has been a hot topic issue across the nation,” said Rameen Talesh, Dean of Students and Assistant Vice Chancellor of Student Life & Leadership at Monday’s event, “and we felt that more education on this important topic would be beneficial for the campus community.”

Dean Talesh and Associate Dean of Students, Sherwynn Umali, were among the faculty from Student Life & Leadership to set up the event series in hopes of benefitting the student and faculty body in understanding the legal technicalities and justifications that define the first amendment.

Dean Chemerinsky began by emphasizing that his presentation would only be part of an enduring dialogue that will also be “a dialogue that I hope continues for months and years to come.”

There are challenges, he said, in dissecting free speech but the Supreme Court has historically set specific distinctions between free speech and other forms of speech that are unprotected by the Constitution and punishable by law.

During the presentation, Chemerinsky detailed six principles that everyone should follow when considering free speech. He cited examples to illustrate how the government has reacted to controversial incidents of free speech and the nuances that come with them, given the complicated nature of real-world circumstances.

First, although often overlooked, is that free speech only applies to public institutes, which excludes private entities such as private universities. However, Chemerinsky affirmed that he deeply believed private entities also have an obligation to obey the principles of freedom of expression. This is something that is essential to academic freedom on campuses, which is “integral to the existence of universities,” he said.

Freedom of speech is not absolute, however. Chemerinsky identified several exceptions in which speech is unprotected and punishable by law. These exceptions include false and deceptive advertising, speech that incites illegal activity with the intention of doing so, obscenity, child pornography, so-called “true threats” where the speech is targeted at one individual to the point where they fear for their safety, as well as harassment that is pervasive and creates a hostile environment specifically targeted towards an individual. Other restrictions include the fact that one cannot exercise free speech to prevent another from exercising their own free speech.

“You’ll notice what’s not on that list,” said Chemerinsky. “Hate speech. Hate speech is speech protected by the first amendment.”

This includes very offensive speech, said Chemerinsky. All viewpoints must be allowed to be expressed, even if they can be deeply offensive or hurtful. The Supreme Court has ruled that the government cannot restrict speech on the basis of its offensive quality.

To censor words is to censor ideas, said Chemerinsky. The Supreme Court has long upheld the notion of the “marketplace of ideas,” originating from John Milton’s book, Areopagitica published in 1644, and cited by Justice Oliver Wendell Holmes. According to Holmes, all ideas and all viewpoints are to be accepted into a marketplace of ideas, and through the test of time, society will determine whether in this marketplace, certain ideas will survive or be rejected.

“False ideas may influence people to cause great harm,” said Chemerinsky, acknowledging that a society may come to accept false, malicious ideas that may eventually pervade the culture, “but what’s the alternative to a marketplace of ideas? The alternative would be the government officials decide what they think is true and false and censor that which they find objectionable.”

Chemerinsky explained that Americans wouldn’t want to live in a society where the president could punish certain ideas over others, and neither would students want to be at a campus where the chancellor could make the same judgement. Whether a form of speech is considered objectionable or not is inherently subjective.

As articulated by the Supreme Court, the first amendment prevents the government from punishing speech based on subjects or views that they don’t find acceptable. Chemerinsky explained why this is the case, as “once we give the government the power to censor messages, if it finds those messages to be offensive, there’s nothing left of freedom of speech, there’s no stopping point to censorship.”

Chemerinsky explained that government institutes can regulate speech by setting up time, place and manner restrictions; however this must function under the condition that there is adequate alternative times and places for speech, and must be content neutral.  

On Tuesday, following Dean Chemerinsky’s presentation, Dean Talesh hosted a discussion examining the issue of time, manner and place restrictions. During the event, audience members were offered case studies in which universities in the past had to react to incidents of controversial speech on campus. An allotted time was given to the audience to discuss what form of administrative intervention would be most appropriate, further illustrating the complexities that surround distinguishing free speech from unprotected speech.

Student Life & Leadership saw the more interactive format of the event’s second day as a way for the audience to gain an appreciation of the difficulties surrounding free speech.

“We wanted the audience to understand the nuances that are in play when protecting speech on campus and tried to use case studies to draw this out,” said Talesh.

Jacob VanDrunen, one of the student attendees, said he found the event very informative.

“I have a friend who’s engaged in a legal suit against the Los Angeles Community College District over their miniscule ‘free speech zones’ on campus, and hearing the Dean elucidate the ‘time, place and manner’ justifications for free speech zones was helpful and timely,” said VanDrunen.

Freedom of speech is essential to the freedom and liberty that forms the backbone of our nation. However, Chemerinsky asserted that campuses have an obligation to step in under instances of expression that threaten its cultural tolerance and inclusivity. Just because the university allows free speech does not mean it is endorsing all the messages that take place on campus, he emphasized. Safe spaces cannot be used as a basis for censorship and punishment of speech, yet there is still an unequivocal importance of creating a safe environment for all students to feel comfortable and thrive in.

Campuses cannot restrict speech, but they often forget the influence of their own speech. This led Chemerinsky to his final argument, that the best remedies for damaging speech is to address it with more speech.

This is where education comes in, said Chemerinsky. It is important to remember that universities have free speech rights but they should also let students be aware of how their speech may affect the safety and comfort of other students. Campus administration can do this through orientations, programs and sessions. “I’ve seen this work very well,” said Chemerinsky.