Joseph Blocher’s article is a rich contribution to our thinking about campus speech. It takes the academic endeavor seriously—both for its rights and for its responsibilities—while simultaneously warning of its fragility under the threat of strong free speech claims.
Professor Blocher struck a poignant note with his insight that the value of academic freedom needs defending. He reminds us that public trust in academic judgment is diminished or gone. That is a devastating observation because if campus speech problems are to be addressed responsibly, it is only academic judgment that will get us there. Without trust in it, solutions seem elusive.
But his article sounds the alarm, warning that efforts to address the complex conundrums posed by campus speech—if beholden to only the values of free speech and listener interests—can in fact strain, and even threaten, the independence that universities need to exist as centers of teaching and intellectual engagement. To shed light on this threat, we must frankly confront and seek to understand free speech and academic freedom as separate values, each playing an important role in sustaining a democratic polity—but in different ways.
There is little need to rehearse the familiar rationales for free speech, which assert its importance to the pursuit of truth through a competition often called the “marketplace of ideas”; its value to democratic self-rule; and its role in assuring individual fulfillment, a core aspect of human dignity. Academic freedom, on the other hand, has different derivations and different justifications, not nearly so familiar. Just as free speech theory in the public domain is anchored on a theory of the government, speech in the university setting—along with its companion, academic freedom—must emanate from a theory of the university.
The university as an institution is conducted for the common good—not for its own good, and not for the good of any individuals who are part of it. Thus, unlike many other institutions that serve the public in other ways, society has considered it appropriate—since the founding of our nation—for the public to establish and fund universities, with the first public university (University of North Carolina) established in 1789.
Benjamin Franklin confirmed that “[a]lmost all Governments have . . . made it a principal Object of their Attention, to establish and endow with proper Revenues, such Seminaries of Learning, as might supply the succeeding Age with Men qualified to serve the Publick with Honour to themselves, and to their Country.” In Franklin’s vision, the public invests in the university and gleans returns in the form of graduates: an educated citizenry that is an asset to the common good.
But the mere fact that universities have been established and endowed with proper revenues by the government, as an investment in the betterment of society, does not automatically render those institutions equivalent to the government itself. This distinction is critical because the theories underlying free speech do not necessarily support equating universities with governments. Universities, while part of the polity, are not coextensive with government. Franklin’s statement suggests that governments, when they support institutions of higher learning, necessarily endow those institutions with the means to achieve their mission—the means to achieve the common good that Franklin described.
In its famous 1915 Declaration of Principles on Academic Freedom and Academic Tenure—which has shaped discussion of universities for over a century—the American Association of University Professors identified a university’s purpose as threefold: “to promote inquiry and advance the sum of human knowledge”; “to provide general instruction to the students”; and “to develop experts for various branches of the public service.” Even today, most university websites identify their mission as involving the creation and advancement of knowledge. From that universal recognition of a core purpose comes a corresponding need: the government must promise not to interfere in academic judgment or undermine educational decisions, in exchange for the university’s contribution to the public good of education. The institution itself is properly understood to be the holder of academic freedom, a “special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” Academic freedom thus insulates the academy from government or politics for the betterment of the common good. As Justice Felix Frankfurter suggested in a famous concurring opinion, “ ‘the four essential freedoms’ of a university [are] to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”
But the goal of this Comment is to push harder on the question of what governments transmit to universities in addition to a degree of independence known as academic freedom. I would submit that there is no reason to assume that governments also pass along to universities the separate obligation to adhere to the free speech paradigm applicable to government itself and the public sphere in general. Indeed, there are very good reasons not to do so.
A key tenet of Blocher’s article is that free speech principles and academic freedom principles are not the same thing and can work in tension with one another. This clash, I submit, comes from a reflexive transplanting of doctrines designed to function in different settings. That is not to say free speech has no place in the academy. Rather, we should ask: where do free speech obligations come from with regard to a university?
The simple answer is that the Supreme Court has long held that the First Amendment’s protection of free speech applies fully to public universities. But I believe that the Court made a category mistake in its holding, and so I would like to think further about what the right answer ought to be with regard to the question of free speech obligations for universities.
The better answer, in my view, is that universities do not take on the constitutional obligations of free speech that governments hold. But what about the importance of free speech for academic discourse? While a form of free inquiry and communication is essential to the academic enterprise, its success also depends on judgments about the truth of speech that are utterly inconsistent with the idea of unregulated speech in society at large. Robert Post, who has developed one of the most comprehensive accounts of academic freedom, offers a persuasive illustration: “Although the First Amendment would prohibit government from regulating the New York Times if the newspaper were inclined to editorialize that the moon is made of green cheese, no astronomy department could survive if it were prevented from denying tenure to a young scholar who was similarly convinced.”
My argument is that freedom of speech is best understood not as a free-standing obligation of universities as it is for governments; rather, free speech in the university setting is subsumed within academic freedom, properly understood. With this nesting of dominance, free speech and academic freedom can avoid the catastrophic collision course that Professor Blocher describes. Both free speech and academic freedom are separate but related means designed to further the noble purpose of the academy.
The University of Chicago’s Foundational Principles attest that a university has a “commitment to free, robust, and uninhibited debate and deliberation among all members of the University’s community.” Many scholars agree that the central purpose of a university is, first and foremost, to facilitate disagreement across differences. These tropes are commonly taken as evidence that free speech is a critical value to universities. The words do suggest a free speech value, and certainly some universities and scholars have interpreted them that way—that universities are indistinguishable from public fora for speech.
But the words are misleading. In my view, the commitment to debate and deliberation that Chicago rightly identifies as defining the educational mission of a university does not derive from the First Amendment at all. Indeed, I suggest that the free speech value is not a consequence of the First Amendment. Rather, it is a component part of the educational mission of colleges and universities.
Disagreement, engagement, communication—they are all forms of speech. However, that is not why they are central to academia; they are critical to universities because they are essential aspects of the learning process, and to the production and dissemination of knowledge, and thus fall under the rubric of the university’s commitment to academic freedom. It is wrong to assume that, because education requires speech, free speech holds an independent power within the university. That error influenced the Supreme Court, animates many of the critiques of universities, and has led to the problems that Professor Blocher identifies in his article. There should be only one overarching existential value guiding the university: the umbrella known as the pursuit of the educative mission and its guardian, academic freedom.
As Professor Blocher has so ably shown, free speech untethered from its relationship with academic freedom can become a threat to it. Thus, in the university setting, free speech should be considered subservient to academic freedom. To the extent that free speech values can validly claim a place in the university, they do so only to further the legitimate goals of education—goals that free speech supports rather than controls.
This is not the place to make a full-throated defense of the claim that the First Amendment should not apply to universities, public or private—but the concluding discussion will suggest a nod in that direction.
For one thing, the stakes are very different between speech regulation by a university and speech regulation by a government. When a university in some way restricts speech—whether it be a student’s placard in the quad or a white supremacist speaker’s rant at a campus rally—the regulation does not limit speech outside the university’s gates and thus causes significantly less potential speech harm than a government law that regulates speech in the world. The student is free to wave a placard out on the public sidewalk, and the speaker can conduct a rally at a public park.
Why would we assume that universities are public fora for speech? Listener interests, one might reply—people on campus need to be able to hear unfettered speech to achieve the knowledge and training that they seek. But I would respond that the university’s job is to consider the legitimate listener interests in the enterprise of academic engagement. Indeed, as Professor Blocher emphasizes, listener interests are really at the heart of the educational enterprise.
But the university owes no duty to listeners as such, separate from what contributes to the educational mission. If it does owe a duty to permit certain speakers, it is not because the speaker is entitled to speak to the students, or because the students are entitled to hear from every possible speaker. Rather, the duty is to support the acquisition of knowledge and to support speakers who contribute to that enterprise. This would leave out, for example, the people Professor Blocher calls “provocateurs who have no business speaking in an academic setting to begin with.” The university simply is not the public square.
Additionally, of course, the final cause of government is very different from that of universities. The Constitution protects free speech to support self-government, informed democracy, and civic virtue. The university has
a different purpose, which is not always compatible with free speech for its own sake.
The protection of listeners is absolutely core to the academic mission of a university; knowledge cannot be attained, improved, or shared without the inculcation and practice of listening. Listening, critically evaluating what is heard, and engaging in meaningful dialogue are the processes by which learning occurs. Speech and listening are the lifeblood of the university, and they are a blood that nourishes its soul.
For example, if a university believes that hate speech is interfering with learning by causing conflict and insecurity among targeted students, it should have the power to limit expression to the degree necessary to prevent a genuine interference with learning, something that hampers the constructive debate and mutual respect that are essential to true academic engagement. This result is antithetical to the free-speech paradigm.
Indeed, the Chicago Principles addressing campus speech explicitly reject any special accommodations to protect targets of hate speech, on the ground that unrestricted speech is the value to which they are committed. But I suggest that they should not be committed to that value if it conflicts with the academic mission. Universities have a core duty to manage speech to promote the advancement of knowledge, not sacrifice it in the name of unrestricted speech.
So, does this help at all with Professor Blocher’s powerful point about how the value of the academic enterprise, including its speech, is contested now and suffers low public regard? Perhaps in this very subtle way: Free speech is often touted as a right—as a sword, not a shield—and those inside and outside of academia are heard shouting, “I have the right to say it, so I am going to say it, and the university cannot keep me from saying it.” With free speech in charge, there is less obligation to justify one’s claims. One can make any outrageous, false, offensive, and/or anti-intellectual statement, based solely on the right to speak. In such a scenario, the professional, empirical, or scientific basis for a claim is not offered—is not demanded—because, under the First Amendment, it is not required. But for the academic enterprise, justification is always required. Thus, when the free speech model overcomes the academic model, the terms of debate veer away from any foundation that might inspire trust. This can degrade the currency of academic judgment.
If we could move to a paradigm where universities were thought of more as enclaves governed by the ethos of academic integrity—where speech is justified and tested in dialectic, rather than as a contest of who can yell louder or be more provocative—perhaps there could be more of an emphasis on what Professor Blocher has persuasively defended as “justified true belief.” In the academic setting, the goal is not an unregulated marketplace of ideas but rather a shared quest for knowledge. This underscores the obligation of the academy to ensure dialectic and responsiveness—give and take—as much as protecting speakers as such.
In this world in which ideas are often communicated in the form of twenty-second TikTok videos, memes, and tweets, one thing that has suffered is reasoned argument—or even reasons, period. Conspiracy theories catch on precisely because they lack a foundation in justified true belief and fail to be subject to robust interrogation. This is the free-speech paradigm at work. But in the academic enclave, I wonder whether re-emphasizing academic freedom and de-emphasizing free speech might help restore to academic expertise the appearance of justification and, in turn, public value.
There are pragmatic objections to how such a regime would be implemented, and this brief Comment does not aim to resolve them. The aim was rather to plant the seed of a model of campus speech that nests free speech within an emboldened concept of academic freedom, making free speech the handmaiden of academic freedom, rather than its antagonist.
Remarks on Academic Freedom and Free Speech: Reflections on Blocher
Joseph Blocher’s article is a rich contribution to our thinking about campus speech.1Joseph Blocher, Listening on Campus: Academic Freedom and Its Audiences, 98 S. Cal. L. Rev. 1161 (2025). It takes the academic endeavor seriously—both for its rights and for its responsibilities—while simultaneously warning of its fragility under the threat of strong free speech claims.
Professor Blocher struck a poignant note with his insight that the value of academic freedom needs defending. He reminds us that public trust in academic judgment is diminished or gone. That is a devastating observation because if campus speech problems are to be addressed responsibly, it is only academic judgment that will get us there. Without trust in it, solutions seem elusive.
But his article sounds the alarm, warning that efforts to address the complex conundrums posed by campus speech—if beholden to only the values of free speech and listener interests—can in fact strain, and even threaten, the independence that universities need to exist as centers of teaching and intellectual engagement. To shed light on this threat, we must frankly confront and seek to understand free speech and academic freedom as separate values, each playing an important role in sustaining a democratic polity—but in different ways.
There is little need to rehearse the familiar rationales for free speech, which assert its importance to the pursuit of truth through a competition often called the “marketplace of ideas”;2ed Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969) (citing Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting)). its value to democratic self-rule;3Alexander Meiklejohn, Free Speech and Its Relation to Self-Government 93–94 (1948). and its role in assuring individual fulfillment, a core aspect of human dignity.4Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 879–81 (1963). Academic freedom, on the other hand, has different derivations and different justifications, not nearly so familiar. Just as free speech theory in the public domain is anchored on a theory of the government, speech in the university setting—along with its companion, academic freedom—must emanate from a theory of the university.
The university as an institution is conducted for the common good—not for its own good, and not for the good of any individuals who are part of it. Thus, unlike many other institutions that serve the public in other ways, society has considered it appropriate—since the founding of our nation—for the public to establish and fund universities, with the first public university (University of North Carolina) established in 1789.5History of the University, U.N.C. Chapel Hill, https://www.unc.edu/about/history-and-traditions [https://perma.cc/PX7Y-EAQY].
Benjamin Franklin confirmed that “[a]lmost all Governments have . . . made it a principal Object of their Attention, to establish and endow with proper Revenues, such Seminaries of Learning, as might supply the succeeding Age with Men qualified to serve the Publick with Honour to themselves, and to their Country.”6Benjamin Franklin, Proposals Relating to the Education of Youth in Pensilvania 5 (Univ. of Pa. Press 1931) (1749), https://archives.upenn.edu/digitized-resources/docs-pubs/franklin-proposals [https://perma.cc/67DE-WU7Z]. In Franklin’s vision, the public invests in the university and gleans returns in the form of graduates: an educated citizenry that is an asset to the common good.
But the mere fact that universities have been established and endowed with proper revenues by the government, as an investment in the betterment of society, does not automatically render those institutions equivalent to the government itself. This distinction is critical because the theories underlying free speech do not necessarily support equating universities with governments. Universities, while part of the polity, are not coextensive with government. Franklin’s statement suggests that governments, when they support institutions of higher learning, necessarily endow those institutions with the means to achieve their mission—the means to achieve the common good that Franklin described.
In its famous 1915 Declaration of Principles on Academic Freedom and Academic Tenure—which has shaped discussion of universities for over a century—the American Association of University Professors identified a university’s purpose as threefold: “to promote inquiry and advance the sum of human knowledge”; “to provide general instruction to the students”; and “to develop experts for various branches of the public service.”7Am. Ass’n of Univ. Professors, Appendix I: 1915 Declaration of Principles on Academic Freedom and Academic Tenure 295 (1915), https://www.aaup.org/NR/rdonlyres/A6520A9D-0A9A-47B3-B550-C006B5B224E7/0/1915Declaration.pdf [https://perma.cc/G3Z8-HE8L]. Even today, most university websites identify their mission as involving the creation and advancement of knowledge.8See, e.g., Mission Statement, Princeton Univ., https://www.princeton.edu/meet-princeton/mission-statement [https://perma.cc/F47B-FHDV] (“advances learning through scholarship, research, and teaching”); Mission Statement, MIT, https://www.mit.edu/about/mission-statement [https://perma.cc/K8HZ-RWZV] (“generating, disseminating, and preserving knowledge”); Who We Are, Stan. Univ., https://www.stanford.edu/about [https://perma.cc/F3DF-DY3A] (“to create and share knowledge”). From that universal recognition of a core purpose comes a corresponding need: the government must promise not to interfere in academic judgment or undermine educational decisions, in exchange for the university’s contribution to the public good of education.9See Keyishian v. Bd. of Regents, 385 U.S. 589, 603–04 (1967). The institution itself is properly understood to be the holder of academic freedom, a “special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”10Id. at 603. Academic freedom thus insulates the academy from government or politics for the betterment of the common good. As Justice Felix Frankfurter suggested in a famous concurring opinion, “ ‘the four essential freedoms’ of a university [are] to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”11Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring) (quoting Acad. Freedom Comms. of the Univ. of Cape Town & the Univ. of the Witwatersrand, Johannesburg, The Open Universities in South Africa and Academic Freedom 1957–74, at 10–12 (1974)).
But the goal of this Comment is to push harder on the question of what governments transmit to universities in addition to a degree of independence known as academic freedom. I would submit that there is no reason to assume that governments also pass along to universities the separate obligation to adhere to the free speech paradigm applicable to government itself and the public sphere in general. Indeed, there are very good reasons not to do so.
A key tenet of Blocher’s article is that free speech principles and academic freedom principles are not the same thing and can work in tension with one another. This clash, I submit, comes from a reflexive transplanting of doctrines designed to function in different settings. That is not to say free speech has no place in the academy. Rather, we should ask: where do free speech obligations come from with regard to a university?
The simple answer is that the Supreme Court has long held that the First Amendment’s protection of free speech applies fully to public universities.12Healy v. James, 408 U.S. 169, 180–81 (1972). But I believe that the Court made a category mistake in its holding, and so I would like to think further about what the right answer ought to be with regard to the question of free speech obligations for universities.
The better answer, in my view, is that universities do not take on the constitutional obligations of free speech that governments hold. But what about the importance of free speech for academic discourse? While a form of free inquiry and communication is essential to the academic enterprise, its success also depends on judgments about the truth of speech that are utterly inconsistent with the idea of unregulated speech in society at large. Robert Post, who has developed one of the most comprehensive accounts of academic freedom,13For representative works by Robert Post on academic freedom, see generally Robert C. Post, Democracy, Expertise, Academic Freedom: A First Amendment Jurisprudence for the Modern State (2012) [hereinafter Post, Democracy, Expertise, Academic Freedom]; Matthew W. Finkin & Robert C. Post, For the Common Good: Principles of American Academic Freedom (2009); Robert Post, The Structure of Academic Freedom, in Academic Freedom After September 11th 61 (Beshara Doumani ed., 2006); Robert Post, Debating Disciplinarity, 35 Critical Inquiry 749 (2009). offers a persuasive illustration: “Although the First Amendment would prohibit government from regulating the New York Times if the newspaper were inclined to editorialize that the moon is made of green cheese, no astronomy department could survive if it were prevented from denying tenure to a young scholar who was similarly convinced.”14Post, Democracy, Expertise, Academic Freedom, supra note 13, at 67.
My argument is that freedom of speech is best understood not as a free-standing obligation of universities as it is for governments; rather, free speech in the university setting is subsumed within academic freedom, properly understood. With this nesting of dominance, free speech and academic freedom can avoid the catastrophic collision course that Professor Blocher describes. Both free speech and academic freedom are separate but related means designed to further the noble purpose of the academy.
The University of Chicago’s Foundational Principles attest that a university has a “commitment to free, robust, and uninhibited debate and deliberation among all members of the University’s community.”15The Comm. on Free Expression, Univ. of Chi. Off. of the Provost, Report of the Committee on Freedom of Expression (2015), https://provost.uchicago.edu/sites/default/files/documents/reports/FOECommitteeReport.pdf [https://perma.cc/U4MD-FHUJ] [hereinafter Chicago Principles]. Many scholars agree that the central purpose of a university is, first and foremost, to facilitate disagreement across differences.16See Erwin Chemerinsky & Howard Gillman, Free Speech on Campus 51–52 (2018) (describing modern view of a university as a place in which “beliefs should be tested by free-thinking human beings . . . after engaging in debate and experimentation”); Prof. Geoffrey Stone Discusses Free Speech on Campus at the American Law Institute, Univ. of Chi. L. Sch., https://www.law.uchicago.edu/news/prof-geoffrey-stone-discusses-free-speech-campus-american-law-institute [https://perma.cc/6QPQ-3Z47] (fostering debate is an “essential part of the University’s educational mission”). These tropes are commonly taken as evidence that free speech is a critical value to universities. The words do suggest a free speech value, and certainly some universities and scholars have interpreted them that way—that universities are indistinguishable from public fora for speech.17See Chemerinsky & Gillman, supra note 16, at xx–xxi, 75–78 (arguing for a robust application of free speech principles to universities).
But the words are misleading. In my view, the commitment to debate and deliberation that Chicago rightly identifies as defining the educational mission of a university does not derive from the First Amendment at all. Indeed, I suggest that the free speech value is not a consequence of the First Amendment. Rather, it is a component part of the educational mission of colleges and universities.
Disagreement, engagement, communication—they are all forms of speech. However, that is not why they are central to academia; they are critical to universities because they are essential aspects of the learning process, and to the production and dissemination of knowledge, and thus fall under the rubric of the university’s commitment to academic freedom. It is wrong to assume that, because education requires speech, free speech holds an independent power within the university. That error influenced the Supreme Court, animates many of the critiques of universities, and has led to the problems that Professor Blocher identifies in his article. There should be only one overarching existential value guiding the university: the umbrella known as the pursuit of the educative mission and its guardian, academic freedom.
As Professor Blocher has so ably shown, free speech untethered from its relationship with academic freedom can become a threat to it. Thus, in the university setting, free speech should be considered subservient to academic freedom. To the extent that free speech values can validly claim a place in the university, they do so only to further the legitimate goals of education—goals that free speech supports rather than controls.
This is not the place to make a full-throated defense of the claim that the First Amendment should not apply to universities, public or private—but the concluding discussion will suggest a nod in that direction.
For one thing, the stakes are very different between speech regulation by a university and speech regulation by a government. When a university in some way restricts speech—whether it be a student’s placard in the quad or a white supremacist speaker’s rant at a campus rally—the regulation does not limit speech outside the university’s gates and thus causes significantly less potential speech harm than a government law that regulates speech in the world. The student is free to wave a placard out on the public sidewalk, and the speaker can conduct a rally at a public park.
Why would we assume that universities are public fora for speech? Listener interests, one might reply—people on campus need to be able to hear unfettered speech to achieve the knowledge and training that they seek. But I would respond that the university’s job is to consider the legitimate listener interests in the enterprise of academic engagement. Indeed, as Professor Blocher emphasizes, listener interests are really at the heart of the educational enterprise.
But the university owes no duty to listeners as such, separate from what contributes to the educational mission. If it does owe a duty to permit certain speakers, it is not because the speaker is entitled to speak to the students, or because the students are entitled to hear from every possible speaker. Rather, the duty is to support the acquisition of knowledge and to support speakers who contribute to that enterprise. This would leave out, for example, the people Professor Blocher calls “provocateurs who have no business speaking in an academic setting to begin with.”18Blocher, supra note 1, at 1162. The university simply is not the public square.
Additionally, of course, the final cause of government is very different from that of universities. The Constitution protects free speech to support self-government, informed democracy, and civic virtue. The university has
a different purpose, which is not always compatible with free speech for its own sake.
The protection of listeners is absolutely core to the academic mission of a university; knowledge cannot be attained, improved, or shared without the inculcation and practice of listening. Listening, critically evaluating what is heard, and engaging in meaningful dialogue are the processes by which learning occurs. Speech and listening are the lifeblood of the university, and they are a blood that nourishes its soul.
For example, if a university believes that hate speech is interfering with learning by causing conflict and insecurity among targeted students, it should have the power to limit expression to the degree necessary to prevent a genuine interference with learning, something that hampers the constructive debate and mutual respect that are essential to true academic engagement. This result is antithetical to the free-speech paradigm.19See Chemerinsky & Gillman, supra note 16, at 103 (claiming that hate speech regulation on campus both is and should be prohibited by the First Amendment).
Indeed, the Chicago Principles addressing campus speech explicitly reject any special accommodations to protect targets of hate speech, on the ground that unrestricted speech is the value to which they are committed. But I suggest that they should not be committed to that value if it conflicts with the academic mission. Universities have a core duty to manage speech to promote the advancement of knowledge, not sacrifice it in the name of unrestricted speech.
So, does this help at all with Professor Blocher’s powerful point about how the value of the academic enterprise, including its speech, is contested now and suffers low public regard? Perhaps in this very subtle way: Free speech is often touted as a right—as a sword, not a shield—and those inside and outside of academia are heard shouting, “I have the right to say it, so I am going to say it, and the university cannot keep me from saying it.”20See Defending Your Rights: Reforming College Policies, FIRE, https://www.thefire.org/defending-your-rights/reforming-college-policies [https://perma.cc/JU7U-8U7C] (working “to proactively and systematically challenge campus policies that violate college students’ and faculty members’ free speech rights”). With free speech in charge, there is less obligation to justify one’s claims. One can make any outrageous, false, offensive, and/or anti-intellectual statement, based solely on the right to speak. In such a scenario, the professional, empirical, or scientific basis for a claim is not offered—is not demanded—because, under the First Amendment, it is not required. But for the academic enterprise, justification is always required. Thus, when the free speech model overcomes the academic model, the terms of debate veer away from any foundation that might inspire trust. This can degrade the currency of academic judgment.
If we could move to a paradigm where universities were thought of more as enclaves governed by the ethos of academic integrity—where speech is justified and tested in dialectic, rather than as a contest of who can yell louder or be more provocative—perhaps there could be more of an emphasis on what Professor Blocher has persuasively defended as “justified true belief.”21See Joseph Blocher, Free Speech and Justified True Belief, 133 Harv. L. Rev. 439, 444 (2019) (setting forth a knowledge-based account of free speech). In the academic setting, the goal is not an unregulated marketplace of ideas but rather a shared quest for knowledge. This underscores the obligation of the academy to ensure dialectic and responsiveness—give and take—as much as protecting speakers as such.
In this world in which ideas are often communicated in the form of twenty-second TikTok videos, memes, and tweets, one thing that has suffered is reasoned argument—or even reasons, period. Conspiracy theories catch on precisely because they lack a foundation in justified true belief and fail to be subject to robust interrogation. This is the free-speech paradigm at work. But in the academic enclave, I wonder whether re-emphasizing academic freedom and de-emphasizing free speech might help restore to academic expertise the appearance of justification and, in turn, public value.
There are pragmatic objections to how such a regime would be implemented, and this brief Comment does not aim to resolve them. The aim was rather to plant the seed of a model of campus speech that nests free speech within an emboldened concept of academic freedom, making free speech the handmaiden of academic freedom, rather than its antagonist.
98 S. Cal. L. Rev. 1379
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* The Rader Family Trustee Chair in Law, University of Southern California. This Comment was prepared for the SCLR Symposium 2024: The First Amendment and Listener Interests, November 8–9, 2024. I am grateful to Erin Miller and Bob Rasmussen for comments.
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