Vol. 98, No. 5

Listening on Campus: Academic Freedom and Its Audiences

Joseph Blocher*
Constitutional Law, Education Law, First Amendment, Free Speech
Articles

Introduction

Current debates about campus speech often conflate two related but importantly distinct values: free speech and academic freedom. Both are widely perceived to be in crisis,¹ but they are not interchangeable, and slippage between the two makes it even harder to frame, let alone address, difficult questions about speech in university settings. Many of the most fundamental challenges—indeed, much of what makes campus speech unique in the first place—arise from the need to accommodate both values. In doing so, defenders of academic freedom must, as advocates of free speech have, more clearly articulate an account of listener interests. The basic project of this Article is to frame that challenge and take a few initial steps toward answering it.

The most prominent (and successful, at least if success is measured by legislative and popular action) critics of the campus speech climate are invoking a free speech paradigm. Their central complaint is that faculty, administrators, and students are selectively silencing speakers and ideas. The paradigmatic victims are often isolated conservative voices,² faculty and speakers attacked for things they write or say,³ and students who find themselves inhibited from speaking their minds on campus.⁴

These critics have pushed for a range of purported remedies, including cutting funding for diversity, equity, and inclusion (“DEI”) programs; requiring intellectual diversity statements; weakening the protections of tenure and collective bargaining; forbidding the teaching of certain supposedly divisive concepts involving race, gender, and sexuality;⁵ and ousting university leaders.⁶ Though framed as protections of free speech principles such as viewpoint neutrality, many of these efforts have the effect (and perhaps purpose) of restricting those very principles. In that sense, they invoke free speech but are not actually rooted in the free speech tradition.⁷ Sometimes the motivation seems to be nakedly punitive or political—a thumb in the eye of a liberal professoriate—or to make martyrs of provocateurs who have no business speaking in an academic setting to begin with.

But these critiques and purported reforms can also be understood in more principled terms as protecting listeners—most prominently the students and others who have an interest in hearing a range of ideas and speakers. Getting a handle on the campus speech debate therefore requires a clear account of listener interests, as this symposium invites. Doing so is especially important because many of the interventions flowing from the listener-based free speech critique are in tension with, and sometimes flagrantly undermine, the other essential element of campus speech: academic freedom. That freedom has many dimensions, each with its own value proposition: “freedom of research and publication, freedom in the classroom, freedom of intramural speech, and freedom of extramural speech.”⁸ For simplicity’s sake, I will call the expression associated with these freedoms “scholarly speech.”⁹

Such speech is governed not by the rules and principles governing public discourse (the free speech paradigm) but by the rules and principles of academic disciplinarity. In the words of the AAUP’s 1940 Statement of Principles on Academic Freedom and Tenure, which codified the principles and practices of academic freedom: “Institutions of higher education are conducted for the common good and not to further the interest of either the individual teacher or the institution as a whole. The common good depends upon the free search for truth and its free exposition.”¹⁰ The search for and exposition of truth in scholarly settings are subject to the academic judgment of peers, not the broadly permissive principles that prevail in the marketplace of ideas.

This does not mean that free speech and disagreement have no place on college campuses; to the contrary, they remain essential.¹¹ But in order to provide the essential benefits that are the core of their mission—the production and dissemination of knowledge¹²—universities must be tightly governed by themselves, not by donors and legislatures, and the relevant standards of research, publication, and teaching must be disciplinary, not political.

In short, the current debate has turned campus speech against itself, in part by leveraging listeners’ free speech interests to undermine academic freedom. The free speech critique has a clear account of value and harm (one largely rooted in listener interests) and has the additional benefit of constitutional moorings that are more secure than those of academic freedom.¹³ By invoking the importance of students’ exposure to a broad marketplace of ideas—a distinctly free speech-based frame—would-be reformers have justified a broad range of interference with universities’ self-governance. The tension between those principles has asymmetrically favored free speech both rhetorically and conceptually. Defenders of academic freedom must respond with an account of its value¹⁴—as something that not only protects scholars-as-speakers but ultimately and more importantly serves “the common good,”¹⁵ which can only happen if scholarly speech reaches the right audiences.

The goal of this Article is to suggest that academic freedom and the scholarly speech that it protects would benefit, as its critics have, by better articulating a listener-based account. Centering threats to scholarly speakers is consistent with standard doctrinal approaches to freedom of speech, and descriptions of individual professors and students facing repercussions for their speech may be rhetorically effective, just as stories of “cancelled” speakers have supported the free speech critique.¹⁶ But following First Amendment scholarship’s increasing exploration of listener interests in theory¹⁷ and in doctrine,¹⁸ accounts of academic freedom can and must focus on the audiences of scholarly speech.

Part I illustrates how critics of the current campus speech climate are pitting the free speech and academic freedom paradigms against one another, in large part by leveraging listener interests—for example, by attempting to justify interference with university governance as necessary to protect the interests of students-as-listeners. This listener-based critique can and should be answered with a listener-based defense of academic freedom. Doing so is not only important as a matter of rhetorical strategy, but necessary for a full and accurate description of academic freedom’s value. Indeed, the very justification for academic freedom is less concerned with the interests of scholars-as-speakers than it is with their role in producing and spreading knowledge—an inevitably collective activity, and one whose contribution to the common good is broadly predicated on the presence and engagement of various listeners.

Part II explores the distinct interests of three such audiences: students, scholars, and the general public.¹⁹ Each raises important issues and challenges. Emphasizing the rights of students-as-listeners may help ground their still-murky claims to academic freedom,²⁰ even as it both confirms and confounds standard accounts of listener interests in the free speech paradigm. On the one hand, the freedom of teaching (one prong of academic freedom) is undeniably rooted in students’ interests as listeners. On the other hand, students-as-listeners—despite being an arguably captive audience, lacking power vis-à-vis their professors—do not have a broad right not to listen, as many First Amendment principles suggest. Moreover, their rights as listeners vary significantly depending on the setting: classrooms and other curricular settings, guest speakers and other extracurricular events, and their dorm rooms.

Faculty are the prototypical speakers in the academic freedom paradigm, but they are also important listeners; the communal nature of knowledge production through research and publication requires as much. Moreover, individual scholars must constantly re-evaluate their own positions in light of others’ work—what I have called elsewhere (in the context of free speech) the “virtue of persuadability,”²¹ and what in the context of academic freedom essentially means holding oneself to disciplinary standards.

Finally, and perhaps most crucially, there are the listening interests of the general public. In the words of the AAUP, universities exercise a “public trust” which requires that they be immune to the “tyranny of public opinion,” allowing them to serve as “an intellectual experiment station, where new ideas may germinate and where their fruit, though still distasteful to the community as a whole, may be allowed to ripen until finally, perchance, it may become part of the accepted intellectual food of the nation or of the world.”²² That trust will only hold so long as the listening public believes it is indeed receiving something of value. Against a backdrop of growing skepticism about the very notion of scholarly expertise and a troubling rise of public and private attacks on research and teaching, defenders of academic freedom must persuade the public that their work is indeed furthering the common good.

I. Using Listener Interests to Put Free Speech Ahead of Academic Freedom

At the heart of current controversies about expression in colleges and universities²³ are two related but importantly distinct forms of expression: free speech and academic freedom. Both have important roles to play in a university, and I will refer to them collectively as “campus speech.” But to understand or address the perceived crisis it is essential first to be clear about the overlap and distinction between them—and, crucially, the ways in which listener interests are being invoked to turn free speech against academic freedom.²⁴

Many of the most serious concerns about the campus speech climate are about free speech as such. As Keith Whittington puts it in Speak Freely: Why Universities Must Defend Free Speech, “[f]ree speech on college campuses is perhaps under as great a threat today as it has been in quite some time.”²⁵ The reasons for and manifestations of these apparent threats take various forms whose propriety in any particular situation might of course be debated: shouting down speakers, students and faculty posting on social media, requesting or demanding trigger warnings, withdrawing job offers for students or faculty based on their speech, and more. The underlying conception of freedom being threatened in this paradigm is roughly akin to the freedom of speech protected by the First Amendment in the public sphere: a broadly libertarian marketplace of ideas in which expression must be “uninhibited, robust, and wide-open.”²⁶

The free speech paradigm and the familiar slate of First Amendment rules and principles accompanying it has an important role to play in many areas of university life. Most obviously and explicitly, many campuses have established various “free speech zones” in which students, faculty, and perhaps others can express themselves subject only to relatively narrow limitations for harassment, true threats, and the like. That same broad freedom might extend, whether declared or not, to other areas of a university campus such as open quads, streets, and other arguable analogues of public fora. Indeed, many universities claim to have broad or even absolute commitments to speech and are regularly evaluated or even ranked based on that basis.²⁷

The free speech paradigm also plays an important role in the scholarly enterprise that is at the heart of the university. In Whittington’s words, “[f]or universities, . . . free speech is valuable precisely because of its utility in generating, testing, and communicating ideas.”²⁸ This epistemological utility is only one of the values that free speech might serve in other contexts, like democratic participation or individual autonomy. Universities are not necessarily set up in opposition to values of democratic participation and individual autonomy, and indeed might well further them,²⁹ but their central mission is to generate and disseminate knowledge—to be “a space where ideas are held up to critical scrutiny and our best understanding of the truth is identified and professed.”³⁰ As the Supreme Court put it in Sweezy v. New Hampshire—a case often cited in the literatures involving both listener interests and campus speech—we “must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”³¹ Keyishian v. Board of Regents, which likewise has a prominent place in both literatures, similarly declared that “[t]he classroom is peculiarly the ‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’ ”³²

But the university, let alone the classroom, is a “marketplace of ideas” in a very particularized sense. Surely, scholars must be free to attack shibboleths and to push the boundaries of knowledge beyond received academic orthodoxy. Moreover, the commitments to communication, reasoning, and persuasion in the classroom might make it an especially valuable site of the marketplace’s supposed truth-seeking capability, which has been subject to withering criticism elsewhere.³³ And yet even the most ardent champions of the free speech model would accept that scholarly discourse, including in the classroom, not only permits but requires speech regulations that would not be acceptable in the traditional public marketplace of ideas.³⁴ It would violate the First Amendment if a state were to fine its citizens $50 for espousing flat earth beliefs in public discourse. It would not violate the First Amendment if a state university’s geology department were to deny tenure to a faculty member espousing such beliefs in her scholarship. In innumerable ways, communication in university settings is appropriately subject to restrictions that would be unthinkable under standard free speech principles.

Some of these limitations can be reconciled with the free speech paradigm on the grounds that they represent applications of well-worn First Amendment principles like time, place, and manner restrictions, but the underlying tension is fundamental. Time, place, and manner restrictions must be content-neutral,³⁵ but what is a curriculum except a restriction on the content of faculty and student speech? The prohibition on viewpoint discrimination is nearly ironclad in public discourse,³⁶ but not in scholarly settings.³⁷ How else to describe the situation of the geology professor, who after all is simply advocating a scholarly viewpoint? Or consider the fact that in public discourse, speaker equality is a fundamental principle.³⁸ In a scholarly setting, ideas and speakers should not be disregarded simply because they are politically unpopular, but it does not follow that all must be accorded equal respect.³⁹ Those that do not measure up to the relevant scholarly standards not only can but should be excluded, even if they must be accepted in public discourse.

The rules governing scholarly speech are fundamentally different than those governing free speech because they have different and sometimes conflicting accounts of value. Academic freedom is protected because of its role in generating and spreading knowledge, not speech as such.⁴⁰ That requires a different set of rules and principles than those that apply to public discourse, including that scholarly speech be governed by the relevant standards of scholarly disciplinarity. This is why universities’ academic freedom policies often appear alongside their tenure policies; the two are deeply intertwined. In the realm of academic discourse, the right to “speak freely” looks very different than it does in public discourse, and it is not true that all “dissenting voices must be tolerated rather than silenced”⁴¹ in all campus settings. The central challenge is determining whether and how universities can regulate speech in service of their educational mission.⁴²

Many of the current battles over campus speech are playing out atop this tension, which has at least two potentially pernicious results. The first is evaluating matters of academic freedom—freedom of research and publication or freedom in the classroom, for example—according to the principles of public discourse. The second is prescribing remedies that not only ignore but might in fact undermine the institutional independence necessary for academic freedom. When a state legislature declares that professors are failing to treat their classrooms like the marketplace of ideas, it risks committing the first error. When that legislature then shuts down (or for that matter creates) academic centers with the goal of achieving ideological balance,⁴³ it risks committing the second.

There are many facets to the tension between free speech and academic freedom—indeed, it might be taken as an overall description of the campus speech crisis⁴⁴—but for present purposes and in keeping with the theme of this symposium it will suffice to focus on one: the interesting, important, and generally under-appreciated role of listener interests. Broadly speaking, advocates of the free speech paradigm have consistently and effectively invoked listener interests to suggest that students are being deprived of important ideas and that they are being forced to listen to objectionable ones. The latter line has become particularly prominent in the wake of the October 7, 2023 attacks in Israel, and has led to allegations of inconsistency and even hypocrisy on all sides. Whatever one thinks about those complaints, the point is that both are rooted in audience impact. Defenders of the academic freedom paradigm, by contrast, have done little to articulate the listener interests at stake for scholarly speech. The result is that listener interests are being used to turn free speech against academic freedom.

This is perhaps most evident in the strenuous critiques, mostly but not exclusively from the political right, alleging that universities are systematically underprotecting freedom of speech. Some critics have focused on the harms to speakers,⁴⁵ occasionally making martyrs out of provocateurs and others whose potential contributions to knowledge-producing discourse are marginal at best.⁴⁶ That strategy has undoubtedly been effective, but it has also had the distorting effect of elevating the profiles of professional attention-getters rather than those with a genuine dedication and ability to contribute meaningful ideas—including unpopular or disfavored ideas—to campus discourse.

Alongside this speaker-focused critique, however, there is a deeper and more serious element that focuses on the interests of potential listeners, including students who are denied access to important voices and ideas (primarily conservative ones). That critique takes multiple forms as well. One emphasizes the danger that conservative students will be alienated and harmed in campus settings where they cannot hear voices like their own or that students who are not exposed to such ideas will be indoctrinated with liberal orthodoxy.⁴⁷ Some conclude that the appropriate solution is to impose more control from the outside. Often the diagnosis and prescription are explicitly political, as with the “Freedom from Indoctrination Act,” whose supporters say would—by “[r]eclaiming [a]cademic [f]reedom”—give students “the freedom to take coursework without a distinctive left-wing ideological valence.”⁴⁸

As a matter of education and pedagogy, the most fundamental risk is that listeners in an academic setting will be harmed if not given sufficient opportunity to hear and consider ideas different than their own.⁴⁹ As John Stuart Mill put it in On Liberty: “Both teachers and learners go to sleep at their post as soon as there is no enemy in the field.”⁵⁰ If a university community presents only one side, its thinking process is thereby distorted, just as “the thinking process of the community” can be distorted by restrictions on speech (to borrow a phrase form Alexander Meiklejohn).⁵¹

One might object to the predicate assumptions—perhaps conservative voices are not being silenced; perhaps students have access to all the viewpoints they need—but at the very least these are arguments, rooted in listener interests, that must be taken seriously. They have been used to “undermine[] the legitimacy” of universities⁵² and sometimes to directly threaten the institutional autonomy that is essential to academic freedom, for example by imposing restrictions on subject matter,⁵³ interfering with hiring decisions,⁵⁴ and weakening tenure.⁵⁵ The most prominent threats appear to be coming from the political right, but left-associated programs like DEI can present threats as well. As Khiara Bridges notes, “If institutions take it as their duty to ensure student comfort—and if antidiscrimination laws are wielded in a way to enforce that duty—then academic freedom surely will suffer.”⁵⁶

Defenders of the academy have rightly called out these ongoing attacks. But ringing the alarm bells is only part of the task. Proponents of academic freedom must be able to do at least two things: hold it out as something distinct from free speech, and provide a theory of value. These are not new tasks. Roughly coincident with the awakening of free speech in constitutional doctrine, academic freedom found its first and most important articulation of identity and value in the foundational texts and practices of

American academic freedom: the 1915 Declaration of Principles on Academic Freedom and Academic Tenure⁵⁷ and the 1940 Statement of Principles on Academic Freedom and Tenure.⁵⁸

At the time of the 1915 Declaration, the “philosophical birth cry” of academic freedom in the United States,⁵⁹ the major threats to faculty independence were triggered by professors’ speech, not by speech they were supposedly stifling. Today, the threat is often presented as being to free speech itself—a concept that was, as a constitutional matter, still in its infancy at the time of the AAUP’s original efforts.⁶⁰ Responding to that threat today, it seems especially worthwhile to attach the value of academic freedom to its manifestation in scholarly speech.⁶¹ In doing so, defenders of academic freedom would be well served to embrace the challenge posed by this symposium and articulate a value of listener interests akin to what defenders of free speech have done.

Indeed, there are good reasons to think that for universities—and thus for academic freedom—listener interests have always been central, even if (as with the freedom of speech) the freedoms themselves are articulated in terms of speaker rights. The very raison d’être for academic freedom, after all, is the production and dissemination of knowledge, which presupposes recipients. As Justice Brennan put it in another context (in a passage often cited by those expounding listener interests), “[t]he dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.”⁶² It is not coincidental that some of the clearest legal language supporting the listener-focused approach comes from cases involving educational settings.⁶³

Broadly speaking, universities might be a particularly special kind of institution in terms of listener interests—one in which speaker and listener interests are generally aligned. RonNell Andersen Jones has identified and explored this dynamic in the “constitutionally symbiotic relationship between the institutional speakers of the press and their public audiences,” which she calls the “most notable” example.⁶⁴ But much of what she says about the press is true of universities as well. Like the press, universities are “a specially protected institutional speaker with both a uniquely powerful speech relationship with listeners and a uniquely heightened threat of being targeted by government regulators.”⁶⁵ And like the press, universities are not mere conduits for speech, but rather play an active role along with their listeners in shaping that speech.⁶⁶

Of course, universities are not singular entities but institutions comprising a complex web of speakers and listeners, each with different interests, as the following Part explores in more detail.

II. The Audiences of Scholarly Speech

The discussion thus far has attempted to highlight connections between three concepts—free speech, academic freedom, and listener interests—that are themselves contested and hard to define. This Part attempts to make the analysis more concrete in at least two ways.

The first goal is to disaggregate some of the various audiences of the scholarly speech protected by academic freedom, including students, faculty, and the public.⁶⁷ Those audiences have different and sometimes-conflicting interests, which raises tensions for the concept of academic freedom and scholarly speech. The second goal is to try to identify particular—and difficult—campus speech issues and controversies that might be illuminated or better understood with attention to the listener interests involved. Recognizing listener interests will not and cannot provide simple solutions.⁶⁸ But it might help illustrate the challenge.

A. Students

Perhaps the most obvious and immediate audience for scholarly speech (which, again, I use as shorthand for the kind of speech that academic freedom enables) is students. And, as detailed above, their interests as listeners have been made central to the current debates over free speech on campus, so it makes sense to begin by considering how those interests as listeners relate to academic freedom.

Classrooms and Other Curricular Settings

Classrooms are a “peculiarly”⁶⁹ useful place to begin considering listener interests, though the lessons they provide in that regard are not straightforward. Indeed, it may be better to think of classrooms as peculiar not in the sense that they are especially a marketplace of ideas but—in keeping with the other meaning of peculiar—that they are an odd marketplace of ideas.

On the one hand, the interests of student-listeners provide a solid justification for instructors’ freedom of teaching, which has been a pillar of academic freedom for at least a century. When professors are prevented from teaching their best understanding of the subject matter in which they are expert, the most significant and concrete harm is likely to the students whose educations are hampered by denial of access to that information. This is fully consistent with the fact that it is typically professors, not students, who assert that freedom. After all, “speakers often have the job of asserting listeners’ rights” because they “are often best placed to challenge allegedly censorial governmental action.”⁷⁰

It does not follow, however, that freedom of teaching is bounded by students’ narrow and immediate preferences. Certainly faculty do not have unbridled freedom to teach students who do not wish to learn; the rights and duties of academic freedom do not work that way, and no one is obliged to attend university and be exposed to ideas they would prefer to avoid. But faculty must and do have control over the curriculum, even when that means teaching material that students—or for that matter legislatures or trustees—find boring, difficult, or otherwise objectionable.⁷¹ The relevant standards are those of academic disciplinarity and good pedagogy, not what students or others prefer at any given moment. If those standards are satisfied, then students-as-listeners can be expected to give their attention, whether or not they reject the information or even find it despicable or threatening.⁷² Students who choose not to listen can legitimately face consequences (such as lower grades); students who disrupt the flow of information to other willing listeners can be disciplined.

This is the central reason why efforts to either forbid or require the teaching of certain subject matters is so troubling: Even as they invoke students’ interests in “free speech” or “academic freedom,” such efforts limit the institutional autonomy to make curricular choices, essentially turning academic freedom on its head and thus undermining students-as-listeners’ interests in being taught by experts.

That does not mean, of course, that individual faculty are free to teach whatever they like—that would be a different, but still inappropriate, use of a free speech paradigm. Attention to disciplinary standards is the core of academic freedom, and it imposes limits both on faculty as speakers and on students as listeners. As then-Judge Samuel Alito put it in a Third Circuit case rejecting a free speech claim brought by a professor who tried to teach religious materials in contravention of curricular expectations, “a public university professor does not have a First Amendment right to decide what will be taught in the classroom.”⁷³

The situation is therefore one in which the interests of students-as-listeners are paramount—the predicate for freedom of pedagogy—but universities (not outside bodies) must have control of the curriculum. This is in tension with some of the principles that emerge in standard accounts of listener interests within the free speech paradigm. After all, one “fundamental” value at issue in the free speech tradition is that “the state wrongs citizens by arrogating to itself the authority to decide what messages they ought to hear.”⁷⁴ But that is just what teachers do.

A variety of other listener-based principles also play out differently for students in classrooms than for people in public discourse. In most First Amendment settings it is generally accepted that “captive” audiences— those who cannot avoid a message and should not have to abandon a particular space in order to do so—have a greater right not to listen.⁷⁵ By contrast, those who can take steps to avoid an unwanted message are expected to do so,⁷⁶ especially in public places.⁷⁷ In Cohen v. California, the Supreme Court reasoned that unwilling viewers did not have privacy interests that would justify such speech suppression because, rather than being “powerless to avoid [the] conduct,” they “could effectively avoid further bombardment of their sensibilities simply by averting their eyes.”⁷⁸

As Caroline Mala Corbin observes, “[l]ike employees at work, students on campus are often a captive audience.”⁷⁹ But it would be too much to conclude that students have a right to disregard—or, worse, interfere with others’ access to—pedagogically-appropriate lessons about the rule against perpetuities because they find it too difficult, or Dobbs v. Jackson Women’s Health Organization⁸⁰ (or for that matter Roe v. Wade⁸¹) because they find it upsetting. Of course institutions and instructors might choose to provide exceptions and accommodations for pedagogical reasons (pedagogy has its own disciplinarity, which includes understanding one’s listeners), but not simply to avoid relevant materials. Thus, even though it involves listeners who are in some sense captive, the classroom is an exception—or at least qualification—to the notion that “[s]tudents have a right to ignore speech that they find appalling and unpersuasive, or to take up the challenge to counter such speech with arguments of their own.”⁸²

Second, although law sometimes gives primacy to listeners’ interests over those of speakers in contexts where speakers have more power or information,⁸³ the same is not true in the classroom. Helen Norton explains:

Even absent any relationship of trust, listeners become vulnerable to speakers when those speakers exert physical, legal, or economic control over them. The sorts of listeners subject to speakers’ dominion in these ways include those in government custody, patients in certain health care settings, and many workers. Listeners in these settings are less likely—and sometimes entirely unable—to question, rebut, or escape powerful speakers.⁸⁴

Norton does not mention students, but there can be no doubt that in many ways (if not all⁸⁵) they have “less information or power”⁸⁶ than their professors, especially in the classroom setting.⁸⁷ This is akin to the danger of what Erin Miller has described in the context of media companies as the “skewing power” of an “epistemic funnel,” which can disrupt a person’s epistemic rationality, or “ability to form rational, justified beliefs.”⁸⁸ A fundamental goal of teaching is to further epistemic rationality, not undermine it, but the imbalance and risk are ever-present.

And yet, as with the principle of captivity, it does not follow that students can invoke their interests as listeners to opt out of curricular requirements or particular lessons. In that respect, the undoubted inequality between students as listeners and faculty as speakers does not lead to the outcome that it might in the free speech paradigm. In other ways, however, the two are not necessarily inconsistent. After all, in other contexts involving asymmetry of knowledge or power such as professional speech,⁸⁹ free speech principles tolerate various forms of regulation in order to ensure that listeners—even if they are at a disadvantage of power or information—are receiving information that satisfies the relevant professional standards.⁹⁰ In the context of teaching, these listener-protective standards are supplied and enforced by the relevant academic unit. For example, the AAUP’s 1915 Declaration specifically warns faculty to “guard against taking unfair advantage of the student’s immaturity by indoctrinating [them] with the teacher’s own opinions” before the student is in a position to examine other opinions and “form any definitive opinion of [their] own.”⁹¹

Third, many standard listener-based accounts of free speech emphasize the autonomy interests of listeners. As Jones puts it:

If listeners, like speakers, have dignitary rights to self-fulfillment and self-definition, they “must also be free to shape their own identities and preferences.” Listening should be an independent source of legal right because a listener possesses not only “a powerful dignitary interest in shaping and defining the hearer’s self,” but also “an instrumental interest in gaining access to information and ideals that will assist the hearer in making rational, informed choices,” and a legitimate “fear that government will abuse any power to cut the hearer off” from speech that meets these needs.⁹²

Once again, a simple version of autonomous listener interests cannot account for curricular settings, at least not without modification. Students might earnestly believe that they should be free to shape their identity and preferences by avoiding particular information. But that will not excuse them from curricular requirements regarding those topics.

There are ways to blunt the tension. One might say that students have, by enrolling in a program with transparent requirements, autonomously pursued their “instrumental interest in gaining access to information and ideals that will assist the hearer in making rational, informed choices,” and that their objections to any particular steps along the way should be subsumed to the larger autonomous choice. This effectively treats the students’ choice to listen as a kind of rolling consent. After all, the student version of academic freedom traces itself to the German Lernfreiheit, or freedom to learn, which originally “referred simply to the freedom to choose one’s course of study.”⁹³

Of course, none of this means that students do or should have no say in the curriculum.⁹⁴ As Khiara Bridges notes, “a society that purports to value equality benefits when professors learn to experience this pressure not as a constraint on academic freedom but rather as an entreaty about the destination to which their exercise of academic freedom might lead.”⁹⁵ Good pedagogy not only licenses but requires attention to one’s audience. The point is not to describe knowledge but to convey it, and careful instructors therefore account for structure, presentation, and pacing, all of which depend in part on students’ abilities, interest, and experiences. Perhaps a broad mandate of trigger warnings and class exemptions hinders learning. But professors who stubbornly insist on teaching material without considering their students’ perspectives are simply abdicating the responsibility to teach well.

Campus Speakers, Events, and Other Extra-Curricular Settings

The analysis thus far has focused on the classroom, where the importance of students-as-listeners and demands of academic freedom as a form of disciplinarity seem most clear. Matters are more difficult when it comes to nominally extra-curricular campus speech like outside speakers and events.

It is one thing to say that students are obliged to listen and learn the prescribed material in a class for which they have registered or which is otherwise required by the curriculum. It is quite another to say that they are obliged to give their attention to any particular campus speaker or lunchtime event. To do so might be a virtue, but attention is a precious resource⁹⁶ and students-as-listeners retain substantial control over how they choose to spend it. In that regard, the autonomy principle plays a more important role when it comes to extra-curricular speech than it does in the classroom.

Most campus speaker controversies—which can serve as a stand-in for the broader category of on-campus, extra-curricular speech—do not involve students deciding not to listen, but rather efforts to protest or disrupt such speeches so that others cannot listen, either. Most (albeit not all⁹⁷) discussions, celebrations, and condemnations of these efforts have focused on either the protesting students or the “cancelled” speakers. This has had a number of unfortunate effects. One is distorting understandings of the campus speech climate by treating the actions of a few students at a few schools as if they are representative of the millions of students across the country. Another is amplifying the supposed interests of would-be speakers, some of whom are neither seeking nor likely to communicate anything of academic interest. Making the loudest of them into martyrs distorts the real issues of academic freedom at stake, as well as the valid audience-interests that generally count in favor of including controversial scholarly speakers.

Students who object to a speaker might be asserting their own interests as listeners—as they have every right to do—but they also risk interfering with the listening interests of others. Some degree of protest, aggressive questioning, or heckling might be appropriate and could even contribute to the educative value of the event.⁹⁸ But disrupting the match between a willing speaker and a willing audience is the essence of interfering with listeners’ interests.⁹⁹ Student-listeners’ opposition to a speech they are not required to attend cannot, without more, be a reason for either them or the university to unduly disrupt the event. This is generally consistent with First Amendment doctrine, which holds that “[l]isteners’ reactions to speech are not the type of ‘secondary effects’ ” that may insulate a regulation from heightened scrutiny¹⁰⁰—in this context, the protest or disruption would be the equivalent of a regulation.

As with classroom pedagogy, of course, this does not mean that student objections to a particular speaker or event should be ignored. Greg Magarian’s suggested solution is that a university has a “duty of faithful service to its students,” and that if it invites a speaker “for reasons that diverge from the interests of the student community” then the validity of the invitation should ultimately turn on “the university’s process for inviting the speaker.”¹⁰¹ This focus on listeners’ interests in the process of selection rather than with regard to the merits of an individual speaker raises an important potential framing question when it comes to listeners’ interests—namely, whether they should be measured at any one moment or across a broader time frame.¹⁰² Education, after all, is a process of development over time, many moments of which (exams, particular lessons, and for that matter particular ideas and speakers) might be objectionable to a listener.

Dormitories and Other Private Spaces

While it may be true that the primary mission of a university is the production and dissemination of knowledge, it does not follow that this mission is exclusive, nor even that it is primary in every corner of a campus. In some contexts, academic freedom is not the sole or even primary value, and standard free speech principles hold sway, including that of students-as-listeners to limit the speech of others.

Consider the dormitory. An Urban Institute study based on data from 2015 and 2016 found that nearly two-thirds of full-time students at private nonprofit four-year colleges and universities live in college housing, as do about a third of those at public four-year college students.¹⁰³ Student housing occupies something of a liminal space in that it is undoubtedly part of a university, and yet is also at least equally the private home of an individual.¹⁰⁴

In the First Amendment context, courts and scholars have typically recognized a right to choose what one listens to in the home. That right can be affirmative, as in Stanley v. Georgia, which declared that the “right to receive information and ideas, regardless of their social worth, is fundamental to our free society” and that it gains “an added dimension” when exercised “in the privacy of a person’s own home.”¹⁰⁵ But it also encompasses a right not to listen to unwanted speech in the home,¹⁰⁶ even if that means interfering with the flow of ideas. As the Supreme Court put it in Frisby v. Schultz, upholding a restriction on picketing in residential neighborhoods, “[t]here simply is no right to force speech into the home of an unwilling listener.”¹⁰⁷ In Rowan v. U.S. Post Office Department, the Court upheld a federal law permitting homeowners to opt out of receiving mailed advertisements that the homeowner believed to be “erotically arousing or sexually provocative,”¹⁰⁸ invoking a similar rationale:

We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even “good” ideas on an unwilling recipient.¹⁰⁹

The final line goes a bit too far—the government cannot always shut down speech on behalf of unwilling recipients—but it is generally sound in the context of homes and other locations that people cannot or should not have to leave.¹¹⁰

The same listener-focused principle applies to students in campus housing. Whether or not students are a captive audience in every campus context,¹¹¹ they have a valid claim to that categorization when in their own rooms. It follows that, just as with freedom of speech, others’ claims of academic freedom do not entitle them to force messages, regardless of their merit, onto students in the privacy of their dorms. Again, this tracks basic listener-based approaches to the freedom of speech, including the Court’s invocation of “the First Amendment rights of speakers against the privacy rights of those who may be unwilling viewers or auditors.”¹¹²

It should go without saying that the distinctions between these categories are neither bright nor inevitable. Indeed, the boundaries of the “home” on campus are significantly contested, and many critics claim that students are over-using it to protect themselves from unwanted ideas.¹¹³ In a much-publicized incident at Yale in 2017, students confronted the master of Silliman residential college, with one of them saying to him that “[i]t is your job to create a place of comfort and home for the students that live in Silliman . . . Do you understand that?”¹¹⁴ When the master responded that he had a different view of the role, the student responded: “Then step down! If that is what you think about being a Master, then you should step down. It is not about creating an intellectual space! It is not! Do you understand that? It’s about creating a home here! You are not doing that. You’re going against that.”¹¹⁵ Whatever one thinks of the student’s conclusions or the context and tone in which they were delivered, the invocation of the residential college as a “home” is not unjustified. Universities are more than just classrooms; they are “communities whose members not only work and learn together but also live, eat, and socialize together.”¹¹⁶

The lines between curricular and extra-curricular settings are similarly contestable. It might be easy in theory for a student to avoid listening to a lunchtime speaker, but what if the pressure from faculty, administrators, or classmates is so strong that it shades into compulsion?¹¹⁷ A student may be justified in claiming her dorm room as a private space where she has a freedom not to listen to controversial speech, but what about shared living rooms, quads, dining halls, and the like? What if her roommate does wish to discuss controversial topics? There is simply no way to give a single ex ante definition that will answer such questions, any more so than First Amendment doctrine can easily sort public from limited from nonpublic forums.

B. Scholars

Students are in some sense the most obvious listeners on campus, but they are far from the only ones. Whereas faculty as speakers are often central to debates about campus speech, they are also a crucial audience when it comes to academic freedom and scholarly speech.

The scholarly pursuit of knowledge is a communal enterprise.¹¹⁸ This is true in the obvious sense that a scholar must publish, teach, or otherwise disseminate what she knows in order for others to hear and benefit from the knowledge-production that justifies her academic freedom. But it is also true in the sense that to acquire such knowledge in the first place she must be embedded in a functioning community of speakers and listeners; one that appropriately takes its cues from (i.e., listens to) disciplinary experts.

The point is that the production of knowledge—the process of scholarly inquiry itself¹¹⁹—involves scholars simultaneously speaking and listening to one another. It is a community-wide instantiation of what Seana Shiffrin has described in treating individuals as “thinkers,” rather than speakers or listeners.¹²⁰ The justification for academic freedom is not simply that universities are in possession of truths that others have a valid interest and perhaps right to hear. Rather, it is that academic freedom is necessary to pursue and identify such truths.

This makes it essential that faculty be able to listen to one another. The freedom of research and publication at the heart of the 1915 Declaration is not solely—nor perhaps primarily—for the benefit of the researcher or publisher, but for those who might read and perhaps respond to her work. Actions that prevent scholars from benefiting from one another’s work threaten academic freedom by undermining those listening interests; they are a form of what Meiklejohn called the “mutilation of the thinking process of the community.”¹²¹ Scholars must be able to hear one another in order to build on or for that matter repudiate one another’s work.¹²² This model of knowledge production relies on self-policing institutions, not individuality;¹²³ scholars using their expertise to question received orthodoxy are not the same as no-nothings on the internet “just asking questions.”

Faculty also have an important interest in listening to their students,¹²⁴ as two of the Court’s most distinguished former professors noted in opinions relating to campus speech. In Justice William O. Douglas’s words, “If we are to become an integrated, adult society, rather than a stubborn status quo opposed to change, students and faculties should have communal interests in which each age learns from the other.”¹²⁵ Justice Felix Frankfurter characterized the interaction between teachers and students as “a kind of continuing dialogue.”¹²⁶

The student connection goes deeper still. It is said that being a student “means being open to others in ways that allow one to expand one’s thinking, to enhance one’s capacities for appreciation, for empathy and for civic participation.”¹²⁷ Such openness to growth and change surely should not be limited to students. Members of a university community “do not have the right to insist that others in fact find . . . arguments persuasive” but they do “have the right to expect that others in the community will be open to persuasion,”¹²⁸ and that expectation in turn can only be legitimate if faculty expect—and demand—the same of themselves. This does not mean wielding disciplinary standards as a cudgel, but working to shape justified beliefs; as Erin Miller observes, “[p]ersuasion engages, rather than subverts, epistemic rationality.”¹²⁹

I have argued elsewhere for the importance of persuadability as a First Amendment virtue.¹³⁰ In the context of scholarly speech, that virtue becomes something closer to a duty.¹³¹ A scholar who is not open to being persuaded is merely a speaker, not a listener, and in that sense is not genuinely involved in knowledge production—just dissemination of what that scholar takes to be the truth.

C. The Public

Faculty’s interests as listeners are essential to the practice of scholarly disciplinarity, but the ultimate justification for academic freedom is rooted in the interests of another audience: the general public. As we have seen, academic freedom as a matter of self-governance—freedom from outside control—was originally justified and must be constantly re-defended on the basis that such disciplinarity is actually practiced and also that it serves “the common good.”¹³² Both of those essential propositions are under great stress.

First, much of the current critique of campus speech is based on the notion that professors are failing to apply the disciplinary standards that justify academic freedom.¹³³ Such a failure can be taken as a default on the obligations that in turn justify academic freedom. As the AAUP’s 1915 declaration recognized, “[t]here are no rights without corresponding duties.”¹³⁴ Or in the words of the Executive Director of Heterodox Academy, which is at the forefront of campus speech battles today, “this is a pretty fair bargain. Professors receive wide latitude to run their own affairs as experts, in exchange for a certain professorial ethos of fair-mindedness, intellectual humility, and self-restraint.”¹³⁵

It is important that universities combat the impression of knowledge-stultifying homogeneity. One way to do so might be through modeling the virtue of persuadability described above—showing that scholars are in fact listening in meaningful ways. In their critique of cancel culture on college campuses (which is valuable, though it leans too heavily into the free speech paradigm), Greg Lukianoff and Rikki Schlott argue that, “[t]he antidote to an epistemic crisis is an expert class that exhibits epistemic humility. That means acknowledging when they might be wrong.”¹³⁶ The perception and arguable reality of “epistemic crisis” and characterization of an over-confident ivory tower can only be addressed through an appreciation of the public’s listening interests.

The second point of stress is that the listening public has increasingly come to doubt that academic expertise really does deliver value. A tendency to distrust the ivory tower is nothing new in American life, of course.¹³⁷ But in the current moment, that crisis of confidence is increasingly deep and partisan. A survey from 2022 found that only 37 percent of Republicans and 73 percent of Democrats believe that colleges and universities have a “positive effect” on society—numbers that have fallen precipitously.¹³⁸ This undoubtedly feeds into what Lukianoff and Schlott describe as one rule of “the right’s Efficient Rhetorical Fortress”; namely that “[y]ou don’t have to listen to experts (even conservative experts, if they have the ‘wrong’ opinion).”¹³⁹

There is no simple solution to this problem. In prior work, I have argued that the basic lodestar of an epistemic approach to the First Amendment might be reimagined not as truth but as knowledge—defined roughly as justified true belief.¹⁴⁰ To do so would mean focusing not just on the accuracy of information but the basis for believing it. And that, in turn, would direct attention to what ultimately is the underlying crisis of the “post-truth” society; not a failure to value or pursue individualized conceptions of truth, but a tendency to value and pursue individualized conceptions of truth regardless of justification. The crisis is one of social epistemology; of losing shared trust in the institutions that give us justified true belief. Any way out of that crisis must be rooted in the interests and perspectives of the listening public, who must be convinced that “[f]or society’s good—if understanding be an essential need of society—inquiries into these problems, speculations about them, stimulation in others of reflection upon them, must be left as unfettered as possible,”¹⁴¹ and that the university “will function for the benefit of society, provided it is a center of independent thought.”¹⁴²

Conclusion

In contexts as diverse as employer speech,¹⁴³ robotic speech,¹⁴⁴ amplified speech,¹⁴⁵ commercial speech,¹⁴⁶ and search engines,¹⁴⁷ scholars and judges have identified and explored the status and role of listeners in giving life to the freedom of speech and the rights of speakers. For doctrinal and technological reasons, those inquiries are as important today as they have ever been, and this symposium is an invitation to take them further. The goal of this Article has been to suggest some ways in which consideration of listener interests might illuminate current debates about campus speech. Students’ interests as listeners are essential to justifying the freedom to teach, and yet students do not have the full panoply of listener-associated interests one might find in other speech contexts. Faculty, meanwhile, are generally treated as the paradigm speaker in campus speech controversies, but also have essential rights and duties as listeners; the production of knowledge through disciplinarity requires as much. And the academy’s authority to govern itself according to disciplinary standards is fundamentally predicated on convincing the public—a broad but essential audience—that the scholarly enterprise is in fact generating valuable knowledge.

* * *

98 S. Cal. L. Rev. 1161

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Joseph Blocher*

* Lanty L. Smith ’67 Distinguished Professor of Law and Senior Associate Dean of Faculty, Duke Law School. Many thanks to Erin Miller for including me in this symposium, to Ash Bhagwat, Rebecca Brown, Alan Chen, James Grimmelmann, Richard Katskee, Tomer Kenneth, Greg Magarian, and Nomi Stolzenberg for incredibly valuable feedback, and to Jack Townsend for research assistance.

Listening on Campus: Academic Freedom and Its Audiences

Introduction

I. Using Listener Interests to Put Free Speech Ahead of Academic Freedom

II. The Audiences of Scholarly Speech

A. Students

Classrooms and Other Curricular Settings

Campus Speakers, Events, and Other Extra-Curricular Settings

Dormitories and Other Private Spaces

B. Scholars

C. The Public

Conclusion

98 S. Cal. L. Rev. 1161

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