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20 Geo. J.L. & Pub. Pol'y 975 (2022)
Free Speech on Campus: Countering the Climate of Fear

handle is hein.journals/geojlap20 and id is 995 raw text is: Free Speech on Campus: Countering the Climate of Fear JOHN HASNAS* ABSTRACT Similar to the entertainment industry in the time of the blacklist, a climate of fear has descended on the nation's universities and colleges. It is the fear of being punished, not for what one does, but for what one says. Today, students and faculty frequently refrain from expressing unpopular or offensive posi- tions-often conservative, libertarian, or traditional religious positions-for fear of being labeled racist, sexist, homophobic, white supremacist, or of being accused of engaging in hate speech. The fear comes in two forms: the fear of being sanctioned by the university or college and the fear of being cancelled by one's fellow students or faculty members. In this article, I argue that these fears arise from a set of perverse incentives on campuses. I suggest that the only way to counter these fears is by changing the incentive structure. I then show how coupling the addition of a safe harbor provision to a school's speech and expression policy with the creation of a pro bono legal organization devoted to the preservation of freedom of speech on campus can effectuate such a change. TABLE OF CONTENTS I. INTRODUCTION. ........................................ 976 II. FREEDOM FROM INSTITUTIONAL SANCTION................... ... 979 A. The Abstract Commitment ........................... . 979 1. Private vs. Public Institutions ..................... . 979 a. The Current Understanding of the First Amendment ............................. ... 979 b. Application to Public Universities ............ ... 981 2. Implications for Private Colleges and Universities ..... 982 * J.D., Ph.D., LL.M., Professor of Ethics, McDonough School of Business, Georgetown University and Professor of Law (by courtesy) at Georgetown Law Center. The author wishes to thank George Brenkert, Peter Jaworski, Jesse Spafford, Ben Bronner, Sahar Akhtar, his fellow participants in the symposium on the Ethics of Freedom of Speech in November 2021, Annette Hasnas of Georgetown University, and Ann C. Tunstall of Martin Pharmaceuticals for their insightful comments on a draft of this article; Anna Colby, Augustin Horner, and Creigh Greensmith of Georgetown Law for their invaluable research assistance; and Annette and Ava Hasnas for teaching him the importance of linking freedom with responsibility. © 2022, John Hasnas. 975