There is no 1st Amendment right to speak on a college campus

By Robert C. Post  Updated Dec 31, 2017, 11:33am EST

We are witnessing an escalating chorus of complaints that modern universities are trampling on the First Amendment. Universities stand accused of catering to the weakness of students with “fragile egos,” in Attorney General Jeff Sessions’s words, who cannot bear to be offended by ideas that they oppose.

“Freedom of thought and speech on the American campus are under attack,” Sessions said at Georgetown in September, in a speech that referred to several incidents that have become touchstones for free speech advocates — including the the controversy that erupted at Berkeley when right-wing columnist Ben Shapiro spoke, and the shouting down of The Bell Curve author Charles Murray at Middlebury College last spring. Especially deplorable was the fact one of Murray’s hosts, a professor, was injured in a post-speech scuffle.

Seen in its best light, the controversy about free speech in American universities bespeaks fear that the next generation of Americans will not have been educated to engage in public debate, which necessarily entails encounter with alien and frequently outrageous perspectives. That is a problem well worth addressing, especially as our politics grows more diverse and more polarized. Universities do have a great responsibility to educate students for citizenship in a country violently split along lines of ideology and identity.

The language and structure of First Amendment rights, however, is a misguided way to conceptualize the complex and subtle processes that make such education possible. First Amendment rights were developed and defined in order to protect the political life of the nation. But life within universities is not a mirror of that life.

The Supreme Court has often observed that the First Amendment is the “guardian of our democracy.” By guaranteeing that all can participate in the formation “of that public opinion which is the final source of government in a democratic state,” the First Amendment lies at the foundation of our self-governance.

The noted legal scholar Alexander Meiklejohn once said that the First Amendment created an “equality of status in the field of ideas.” It prevents the state from excluding persons from public discourse on the basis of what they have to say. It extends to each citizen the promise that they will enjoy the equal right to influence the development of public opinion.

There are many arenas in which all ideas are not considered equal
But here we are talking about public discourse: the free flow of ideas in newspapers, in public squares, on debate stages, on theatrical stages, in art galleries and concert halls. Outside of the sphere of public discourse, equality is not so obviously desirable. Consider, for example, doctors and their patients. The law properly does not treat doctors and their patients as equals. We do not apply to doctors sued for malpractice the core First Amendment doctrine that “there is no such thing as false idea.” We hold doctors accountable for their expertise.

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https://www.vox.com/the-big-idea/2017/10/25/16526442/first-amendment-college-campuses-milo-spencer-protests