Bolstering Free Speech

Yesterday I mused on why today's university administrators don't have the same courage to guarantee on their campuses freedom to both speak and hear opinions unpopular with the left as both the mayor of Syracuse and the owner of the venue at which Frederick Douglass was to speak demonstrated in 1861.

Coincidentally, a business professor at Georgetown named John Hasnas provides us with an answer in Monday's Wall Street Journal (paywall).

Hasnas explains that his university actually violated its own rules concerning free expression when they put newly hired administrator Ilya Shapiro on leave for his criticism of President Biden's declaration that he will only appoint a black woman to replace retiring Justice Stephen Breyer on the Supreme Court.

He writes that:

Georgetown’s policy states that speech “may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or ill conceived.”

Yet suppression is exactly what happened:

Mr. Shapiro tweeted that the candidate he viewed as “objectively” most qualified for the Supreme Court “alas doesn’t fit into latest intersectionality hierarchy so we’ll get lesser black woman.” The dean of Georgetown Law, William Treanor, announced that Mr. Shapiro’s comment was “at odds with everything we stand for at Georgetown Law” and ordered “an investigation into whether he violated our policies and expectations on professional conduct, non-discrimination, and anti-harassment.”

Hasnas wonders rhetorically why universities make "grandiloquent commitments to freedom of speech, then fail to honor them?" The answer, he avers, is that they have every incentive to do what they do.

University administrators get no reward for upholding abstract principles. Their incentive is to quell on-campus outrage and bad press as quickly as possible. Success is widely praised, but there is no punishment for failing to uphold the university’s commitment to free speech.

In other words, it doesn't cost the university anything to throw free speech overboard, but it could cost them plenty to protect it. Thus, university administrators, whose only principle is protecting the bottom line, will almost always take the easy route.

This pathetic state of affairs has a remedy, however, and Professor Hasnas outlines it:

The solution is to create an incentive for schools to protect open inquiry—the fear of lawsuits.

First, universities should add a “safe harbor” provision to their speech policies stating: “The university will summarily dismiss any allegation that an individual or group has violated a university policy if the allegation is based solely on the individual’s or group’s expression of religious, philosophical, literary, artistic, political, or scientific viewpoints.”

This language would be contractually binding.

Second, free-speech advocates should organize pro bono legal groups to sue schools that violate the safe-harbor provision. This would make it affordable for suppressed parties to bring suits over the violation of their contractual rights.

This sounds very appealing, but I see a problem. Why would weak-kneed administrators already inclined to cave at the slightest pressure from the left make it harder on themselves to capitulate by implementing the "safe harbor" provision? Isn't that a bit like telling a cowardly soldier that he should make it harder for himself to avoid the battle?

Anyway, Hasnas closes with this:

In the absence of damage awards, university administrators won’t act against their own interests merely to uphold an abstract commitment to free speech. The threat of such awards would make universities like Georgetown put their money where their mouths are.

It'd be marvelous if universities followed Professor Hasnas' recommendation, but it would take both courage and wisdom to do so, so I'm not optimistic.