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Free speech on campus: The real crisis is the confrontation that never happens

TEMPE, Ariz. — It's a Wednesday evening in mid-August and Arizona State University's student pavilion smells like sweat and sounds like a bar. New freshmen move slowly through the space, trying to figure out who they'll be for the next four years.

"What's your name?" "Do you sing?" "What's your major?"

The questions ring out from upperclassmen stationed in front of colorful posters. They're at tonight's "Passport to ASU" event to attract new members for their favorite student clubs, so they offer friendly smiles and free pieces of candy.

On the surface, it seems all that's at stake this evening are participants' social calendars. But the future of free speech, tolerance and religious freedom also hang in the balance.

Three hours later, many sign-up sheets are full. The freshmen have taken a step toward becoming LGBTQ activists, K-pop performers, anti-abortion protesters or campus Republicans and gained a sense of who at ASU shares their view of the world.

The promise of student organizations nationwide is that they make life on campus a little easier for students with minority beliefs or backgrounds. They offer easy friendships and organized activities, creating a support system in the midst of chaos.

Joshua Bernard, left, of California, vice president of the ASU College Republicans United, visits with Arizona State students on Wednesday, Aug. 15, 2018, at the Arizona State University Memorial Union in Tempe, Arizona.

Jeff Brown, For the Deseret News

Joshua Bernard, left, of California, vice president of the ASU College Republicans United, visits with Arizona State students on Wednesday, Aug. 15, 2018, at the Arizona State University Memorial Union in Tempe, Arizona.

"I'm very heavily involved in the music community here, but I know there are other performing arts communities and different academic-type things," said Aliyah Qualls, a senior music education major who belongs to ASU's gospel choir group. "From what I've heard, there's something for everybody."

There's a negative side to this abundance of options, according to Geoffrey Stone, a law professor and free speech advocate at the University of Chicago.

"Students increasingly tend to congregate with people like themselves," avoiding arguments over government policies and personal beliefs, he said.

"At the end of the day, we just ignore each other," said Thomas Schramek, a 19-year-old registered Republican, about his Democratic classmates. Some of them, members of ASU Young Democrats, were standing fewer than 10 yards away.

This phenomenon isn't what comes to mind when you hear about a college free speech crisis. It's not as controversial as students proclaiming the evils of the Vietnam War in the 1960s or as violent as students setting a building at the University of California, Berkeley, on fire in February 2017 to protest an appearance by Milo Yiannopoulos, a conservative commentator who outrages people for a living. It's not as expensive as providing security for white nationalists or neo-Nazis.

But it's devastating the core of American democracy, threatening to divide us permanently along political and religious lines. Students are failing to learn how to engage the arguments they hate, which puts all of us at risk, according to First Amendment scholars, policymakers and university professors.

There's "a greater likelihood of certain kinds of fanatical ways of thinking. You go farther and farther in an extreme direction because you have nobody disagreeing with you, nobody challenging you and asking you to correct yourself," said Paul Carrese, director of ASU's School of Civic and Economic Thought and Leadership. "There's nobody saying, 'Really? Why do you think that?'"

Young adults who want to silence the people they disagree with grow into leaders who try to make everyone believe the same thing, said Robert George, a Princeton professor of jurisprudence and politics. He's worried about deteriorating interest in healthy arguments and the threat this trend poses to people of faith. Religious freedom protections depend on our ability to civilly disagree.

"If you have people who are dogmatists, whether they're atheists or believers, they will seek to impose their convictions on others and refuse to permit other people to pursue the truth for themselves," he said.

Nearly 9 in 10 college students say that free speech protections are very or extremely important to American democracy, according to a 2017 survey on First Amendment issues. But when asked to choose between protecting free speech and promoting inclusivity, most thought the latter was more important. A majority also said hate speech, which, to some, includes conservative religious teachings on same-sex marriage, doesn't deserve constitutional protection.

Members of an Arizona State University Native American group, from left, Nazhoona Betsuie, of Phoenix, Lauren Slim, of Tuba City, and Savannah White, of Glendale, talk with an Arizona State student about the group Wednesday, Aug. 15, 2018, at the ASU Memorial Union in Tempe, Arizona.

Jeff Brown, For the Deseret News

Members of an Arizona State University Native American group, from left, Nazhoona Betsuie, of Phoenix, Lauren Slim, of Tuba City, and Savannah White, of Glendale, talk with an Arizona State student about the group Wednesday, Aug. 15, 2018, at the ASU Memorial Union in Tempe, Arizona.

The First Amendment's free speech clause protects all messages except threats of imminent violence or shouts about nonexistent emergencies. But at many colleges, students seem to think unpopular speech should be banned, said Tyson Langhofer, director of the Center for Academic Freedom at the Alliance Defending Freedom, which is based in Scottsdale, Arizona.

"The Supreme Court has said over and over again that the highest principle of the First Amendment is that we protect the right to express thoughts we hate and that that's the only type of speech that really needs protecting," he said. "That's what I think our college students are missing today: an understanding of that."

Policymakers and professors are trying to provide it. In legislatures and on campuses across the country, there's a growing interest in instilling a passion for free speech. A Deseret News analysis of state legislatures found that, of all religion-related policy concerns, this issue got the most attention in 2018. An unprecedented 23 states debated some form of campus free speech bill.

What happens on campus doesn't stay on campus, which is why school leaders are scrambling to solve this speech crisis before it gets worse.

What happened?

The day after "Passport to ASU," Arizona State's fall semester officially begins. The line at the on-campus Starbucks is nearly out the door and even professors like Carrese, who teaches on leadership and political theory, struggle to find their assigned classrooms.

"Is this the way to the east wing?" he asks a group of students. They aren't sure.

Carrese, who has dark hair and glasses, is intimidating and endearing, referencing Plato and Edward Said while asserting he doesn't know nearly enough about Islam. He studies Woodrow Wilson even though he can't stand Woodrow Wilson, because there are just certain things a Constitution scholar should know.

Carrese's in a blue button-down shirt and brown blazer, appearing better suited to the U.S. Air Force Academy, where he taught for nearly 20 years, than sunny ASU. He gathers his 10 students around a single, rectangular table in the large, basement classroom and talks about the joy of learning, especially on a campus far from home.

"You're supposed to be safe in the university and have people challenge you not with their fists, not with demonstrations, but with argument," he said. "That's the idea of the university, to allow that kind of freedom of discourse."

Freedom comes from the incredibly diverse environment, from the fact that most everyone you meet is a stranger, with few assumptions about how you'll behave or what you believe. You read important books and study under brilliant professors, and you learn to think for yourself.

"For students, the goal is not simply to learn a bunch of facts, but to learn how to think, how to question, how to argue and, as a result of that, how to be more effective and more open-minded and more engaged as individuals and citizens," Stone said.

But, increasingly, students aren't arguing. They're "siloing" themselves into like-minded groups, seeking nods of agreement instead of questions. Student Republicans at ASU actually split into two clubs last year because they couldn't take any more debates about President Donald Trump.

"Those guys, to be honest, are more Bush-y," said Joshua Bernard, vice president of College Republicans United, about members of College Republicans at ASU. "They're out of touch. Old school."

His club is more open to debate, he explained, as the cardboard cutout of Trump over his shoulder gave him two thumbs up.

Today's college students were raised in a way and in a world which makes civil disagreement harder for them than it was for their predecessors, scholars said. Their helicopter parents protected them from conflict and their Twitter and Facebook feeds presented only messages they wanted to hear.

"Parents of this generation have been much more active in protecting their children from risk and from failure and from frustration and defeat," Stone said. "Students, therefore, have had less experience dealing with anxiety and pressure and conflict and disagreement than they used to."

It's become uncool or even unacceptable to give your ideological enemy the space and time to share their views, Carrese said.

"I think what's happening to many people in American political life and in many universities now is the thought that if you open yourself up to reasonably, respectfully listening to another point of view, you have morally betrayed the principles you hold," he said.

Reem Alsharbaji, left, of Phoenix, a director of the campus group

Jeff Brown, For the Deseret News

Reem Alsharbaji, left, of Phoenix, a director of the campus group "One Resistance," talks with Eleanor Broglie, right of Maryland, about the group on Wednesday, Aug. 15, 2018, at the Arizona State University Memorial Union in Tempe, Arizona.

Mark Searle, ASU's executive vice president and provost, recalled attending a guest lecture on campus this time last year. Floyd Abrams, a prominent, left-leaning First Amendment lawyer, spoke about the Constitution's free speech protections, criticizing the rise of "shout downs," or instances when protesters make it impossible for speakers to share their presentations.

Many students attended Abrams speech, and one went to the microphone as soon as event organizers opened audience Q&A.

"A student asked immediately after (Abrams) finished speaking, 'I heard what you said, but don't you think so-and-so shouldn't be allowed to speak?,'" Searle said.

A student looks over Arizona State's annual lecture series on Thursday, Aug. 16, 2018, during a

Jeff Brown, For the Deseret News

A student looks over Arizona State's annual lecture series on Thursday, Aug. 16, 2018, during a "Political Thought: Islam, Hinduism and Confucianism" class at ASU in Tempe, Arizona.

Seeking policy solutions

Twenty minutes from ASU, the Goldwater Institute sits nestled between law offices and charitable foundations, driving the policy response to the college speech crisis from a Spanish-style building on a tree-lined street in north Phoenix.

The conservative organization, which files lawsuits and crafts model legislation related to health care, property rights, free expression and education, is behind one of the two most prominent model bills on campus speech. It's influenced legislative debates across the country and helped change university policy in Wisconsin, North Carolina, Georgia and Arizona.

"The lack of any long-term solution to the problem got us motivated to come up with one," said Jim Manley, a senior fellow at the institute.

Manley and his co-authors spent around six months drafting Goldwater's bill, which protects speech by punishing unruly protesters. Among other details, the bill requires schools to publish an annual report on expression-related incidents and teach students about speech policies during campus orientation.

"What we have tried to do through this legislation is promote the truth that both sides of any debate need to have their voices heard," said Jonathan Butcher, a senior policy analyst with The Heritage Foundation and senior fellow at Goldwater.

Goldwater's model legislation was released in late January 2017. Less than two weeks later, Berkeley was on fire after violence broke out in response to the Yiannopoulos event.

"There was a dramatic demand for the legislation, due to the serendipity of the timing," Manley said.

In 2017, seven states considered bills or resolutions based on the Goldwater bill, and the American Legislative Exchange Council, another policy-focused organization, put forward its own model legislation. This second sample bill includes protections for belief-based student organizations, like Christian clubs, which are sometimes penalized for stating that same-sex marriage is wrong or having strict eligibility requirements for group leaders.

Twenty-three states have considered free speech legislation in 2018. These bills, which are predominately sponsored and supported by Republican lawmakers, are often controversial. They increase legislative interference with university officials, who often feel they're being called out for something they haven't done.

"We made clear that we had none of the things (legislators) were concerned about," like cancelling guest lectures, said Searle about the Arizona legislature's campus free speech bill. "More than that, we had a policy environment that actually was designed to protect speech in every respect."

Arizona Rep. Paul Boyer, R-Dist. 20, who sponsored HB2563, which passed in April, said he applauds ASU's current approach to free speech but wanted to create a law that would protect future generations of students.

Arizona Rep. Paul Boyer, a teacher at North Phoenix Preparatory Academy as well as a state legislator, is pictured on Thursday, Aug. 16, 2018, at Arizona State University's Memorial Union in Tempe, Arizona.

Jeff Brown, For the Deseret News

Arizona Rep. Paul Boyer, a teacher at North Phoenix Preparatory Academy as well as a state legislator, is pictured on Thursday, Aug. 16, 2018, at Arizona State University's Memorial Union in Tempe, Arizona.

"I love the current administration, but they're not always going to be here," he said. "When I'm gone, when they're gone, I want to be sure every student knows that, even if they have viewpoints that aren't the consensus, they have the freedom to speak and share those opinions."

Free speech is suffering amid growing polarization on university campuses, said Shelby Emmett, director of the Center to Protect Free Speech at the American Legislative Exchange Council. If school officials don't like lawmakers' approach to this problem, they need to show that they're making changes on their own.

"I really hope, at the end of the day, we don't need new laws. We already have one. It's the First Amendment," she added. "We need public universities to take this issue seriously."

Changing hearts on speech

Lawmakers and political activists are optimistic about the initial impact of new policies. Butcher and Manley cited reports about students in Wisconsin who decided not to try to shout down a presentation by Katie Pavlich, a gun rights activist, after hearing that school leaders now had the power to suspend or otherwise punish disruptive protesters.

Arizona Rep. Paul Boyer is a teacher at North Phoenix Preparatory Academy as well as a state legislator. He is pictured on Thursday, Aug. 16, 2018, at Arizona State University Memorial Union in Tempe, Arizona.

Jeff Brown, For the Deseret News

Arizona Rep. Paul Boyer is a teacher at North Phoenix Preparatory Academy as well as a state legislator. He is pictured on Thursday, Aug. 16, 2018, at Arizona State University Memorial Union in Tempe, Arizona.

"There was a group of students protesting and this particular group had shouted down speakers before," Butcher said. "The press asked, 'Are you going to disrupt this event?' And they said no, because they knew the university's new policy."

Stone, who visited ASU in April to speak on challenges related to campus free speech, said he thinks the number of shout downs and cancelled events went down over the last semester, whether because students soured on the experience or university leaders developed better ways to respond to conflict.

"Students who were inviting people like Milo Yiannopoulos to come speak … paid a price for doing so. They were demonized and criticized and condemned," he said. "And it may be that the students who have been inclined to disrupt these events realize that what they've done is empower speakers, make them famous and get them headlines."

The problem with both of these positive developments is they stem from negative incentives: the threat of punishment or backfired plans. It's difficult to put a positive spin on free speech, to convince a student to care about it before they're the ones being silenced, Langhofer said.

"People don't recognize how valuable it is until it's taken away from them or someone they love or someone who holds a similar view as them," he said.

Or until a fellow student ribs them about their approach, talking up the value of tough discussions.

Bernard, the College Republican who was critical of his Bush-loving peers, is a transplant to Arizona who can't believe how much easier life has been since moving to a red state. He wears a black hat with "L.A." on it and describes getting picked on by liberal Californians growing up.

"I'm pretty much already battle hardened," he explains, proud instead of sad.

Bernard, 23, tries to pass on his swagger to Republican friends, to explain why arguments can be a good thing. The political science major wants to feel challenged and changed by his classmates and professors, not to stay the same.

"I tell these guys, 'Debate more left-wing people. Do it. It helps you. It builds you up even more,'" he said.

Arizona State student Courtney Langerud, right, of San Diego, talks with professor Paul Carrese on Thursday, Aug. 16, 2018, after a

Jeff Brown, For the Deseret News

Arizona State student Courtney Langerud, right, of San Diego, talks with professor Paul Carrese on Thursday, Aug. 16, 2018, after a "Political Thought: Islam, Hinduism and Confucianism" class at ASU in Tempe, Arizona.

Most college and university leaders agree that conflict can be good, Stone said. They're searching for a way to keep students connected to people like them while also asking hard questions and nurturing debate.

"At my law school, the faculty has been looking for ways to bring students together in meetings where the whole point is to have students from conservative and liberal groups talking to each other," Stone said.

At ASU, that effort included bringing George to campus in January, along with Cornel West. George is a conservative Catholic legal scholar, while West is a Democratic socialist religious philosopher.

"We want to try to teach people that there's everything to be gained and absolutely nothing to be lost from listening to each other and engaging with each other, from recognizing our own fallibility and trying to learn from people, including people you disagree with," George said.

The unlikely pair sat next to each other in the student pavilion, on the same stage used by student singers and dancers seven months later during "Passport to ASU." After Carrese offered thorough introductions, they shook hands and laughed, pleased to be sparring partners, to be enemies and friends.

"We're trying to show students how this is done," George said.

Carrese said George and West helped students see the value of intellectual humility, of listening with the intent to understand something new.

"If you want to find the truth, you've got to listen to arguments. You've got to open yourself to the thought that you might just be completely wrong," he said.

He tries to model this approach in his classroom, acknowledging there's plenty he doesn't know and needs help to learn.

"I think we'll have lots of questions," Carrese told his students on the first day of class. "Maybe some answers."