Trump’s Plan to Protect Free Speech on Campus Is a Bad Idea

(Bloomberg Opinion) -- Free speech on campus is crucially important in a free society, and in some ways under significant threat. But President Donald Trump's proposal over the weekend to impose free speech on universities isn't the answer.

Rather, any effort from the White House to control campus speech would become part of the problem.

Public universities are already bound by the First Amendment. And private ones have their own free speech and free association rights, which presidential intervention would potentially violate.

It's essential to understand that freedom of speech on a university campus isn't the same as speech in a pure public forum, like on a street corner.

A university, whether public or private, is an intellectual community organized to promote learning and knowledge. For those goals to flourish, there have to be enforceable norms that govern academic standards as well as civility.

Consequently, all universities have the authority to decide on the virtues of truth and scholarship that go into determining who teaches and what should be taught. In doing so, the universities ought to respect the value of academic freedom.

Academic freedom is a different value from free speech, as Robert Post, past dean of the Yale Law School, has long argued. Academic freedom assumes the existence of a scholarly community with collectively developed norms of excellence — and of truth.

Under academic freedom, some ideas can be designated as better than others. The university doesn't have to offer a tenured position to a geologist who teaches that the earth is flat or a biologist who denies natural selection.

In contrast, free speech in the public square is based on the principle that the government should never be the arbiter of what ideas are true or false.

What's more, academic communities are designed to produce the exchange of ideas through discussion and argument. Meaningful argument requires some basic conditions of civility and decorum, including respect for others and tolerance of dissenting views. The public square doesn't have those same goals, and so it doesn't share the same ground rules.

That said, there's a constant risk on campuses that enforcing civility can shade into the censorship of ideas that are unpopular. The danger is especially great when student groups invite speakers whose views offend other students.

It's completely proper for offended groups to protest speakers they don't like. What's wrong, in my view, is for campus authorities to intervene and cancel unpopular speakers. That gives an effective heckler's veto to students who can raise a ruckus.

Similarly, it is poor form at best — and dangerous at worst — for universities to cancel speeches or honorary degrees to unpopular figures just because students don't like the administrators' choices.

This analysis brings us to Trump's rather vague proposal, which he mentioned in a two-hour-plus speech Saturday to the Conservative Political Action Conference.

Trump invited to the stage an activist named Hayden Williams, who was assaulted while recruiting students for a conservative organization at the University of California at Berkeley.

“If they want our dollars, and we give it to them by the billions,” Trump said, speaking of universities, “they've got to allow people like Hayden and many other great young people and old people to speak.”

He concluded: “Free speech. If they don't, it will be costly. That will be signed soon.”

The idea seems to be that Trump will issue an executive order conditioning universities' receipt of funds on adhering to some sort of free-speech code.

The president almost certainly can't impose such conditions unilaterally, as we learned when Trump tried to condition so-called sanctuary cities' receipt of federal funds on cooperation with federal immigration officials.

But that technical impediment aside, what's really worrisome about Trump's proposal is that the executive would be telling universities what speech can or cannot be allowed on campus.

When it comes to public universities, that's unnecessary. They are already considered state actors, subject to the full reach of the First Amendment.

And when it comes to private universities, executive intervention would violate the institutions' own free speech rights, themselves guaranteed by the First Amendment.

Just like any other private actors, universities must be able to choose what they will say and what they will not say. The right to speak freely carries with it the right to freedom of expressive association.

For the president to stop campuses from making their own choices about speakers would infringe on their academic freedom, both with respect to determining the truth according to scholarly standards and creating an atmosphere of civility.

It's easy to imagine that if the president could force universities to decide what speech to allow based on a threat to their funding, Trump or another president could go on to tell the universities what to teach — and what rules to use in determining how dialogue will be shaped and presented on campus.

In short, under the guise of free speech, Trump is threatening academic freedom — and free speech itself.

And if Congress passes legislation imposing funding conditions, it would as a matter of constitutional law have to be forward-looking, clearly stated and connected to the purposes of the funding.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”