Robert O\u27Neil has written the book he was destined to write: Free Speech in the College Community. The former President of the University of Virginia and the University of Wisconsin, O\u27Neil is a distinguished lawyer and First Amendment scholar who has long been active in disputes involving student speech and academic freedom. He has parlayed those credentials into a book that is both creative and accessible. For both lawyers and non lawyers interested in campus speech issues, there is no better text available

O\u27Neil, Robert M.

Small, Rodney A.

English

University of Richmond

Richmond Journal of Law and TechnologyVolume 4 | Issue 3 Article 41998Free Speech in the College CommunityRobert M. O'NeilRodney A. SmallFollow this and additional works at: http://scholarship.richmond.edu/joltPart of the First Amendment CommonsThis Article is brought to you for free and open access by UR Scholarship Repository. It has been accepted for inclusion in Richmond Journal of Lawand Technology by an authorized administrator of UR Scholarship Repository. For more information, please contactscholarshiprepository@richmond.edu.Recommended CitationRobert M. O'Neil & Rodney A. Small, Free Speech in the College Community, 4 Rich. J.L. & Tech 8 (1998).Available at: http://scholarship.richmond.edu/jolt/vol4/iss3/4Richmond Journa  l of Law &TechnologyVolume IV, Issue 3, Spring 1998Free Speech in the College CommunityRobert M. O'Neil,Indiana University Press, 1997.ISBN: 0-253-33267-2Reviewed by Rodney A. Smolla[*] Cite As: Rodney A. Smolla, "Free Speech in the College Community", 4 RICH. J.L. & TECH. 8, (Spring 1998)<http://www.richmond.edu/~jolt/v4i3/smolla.html>.[**]{1} Robert O'Neil has written the book he was destined to write: Free Speech in the College Community.[1]The former President of the University of Virginia and the University of Wisconsin, O'Neil is a distinguishedlawyer and First Amendment scholar who has long been active in disputes involving student speech andacademic freedom. He has parlayed those credentials into a book that is both creative and accessible. Forboth lawyers and non lawyers interested in campus speech issues, there is no better text available.{2} Disputes over freedom of speech come in virtually all shapes and sizes on today's university campuses. Aracial slur directed at two African-American women walking past a student dorm creates a call for a newspeech code.[2] An engineering professor who wrote a book claiming that the Holocaust never happened,generates a cacophony of protest calling on the university administration to discipline or dismiss theprofessor for his outrageous views.[3] A group of male first-years send e-mail messages to a group of femalestudents containing graphic sexist jokes. The female students file a complaint with the United States Office ofCivil Rights which launches an investigation to determine if the university is in violation of civil rights laws.[4]{3} A male sophomore posts a short story on a bulletin board containing fantasies about engaging in a violentsexual assault on a female student, using her actual name and the university is pressured to discipline theauthor.[5] A professor is investigated by state officials for downloading material that is sexually explicit, butnot legally obscene, from the Internet onto his university computer.[6] The Black Student Alliance invites amilitant Black Muslim minister to speak on the campus, who only weeks earlier made highly controversialremarks that were brazenly anti-Semitic, anti-Catholic, and homophobic. The university is asked to bar thespeaker from the campus.[7] The Gay and Lesbian Alliance sues a university after being denied officialrecognition and university funding.[8]{4} A state university refuses to fund the newspaper of a Christian student group, on the grounds that fundingthe newspaper, which is pervasively religious and openly proselytizing in nature, violates principles ofseparation of church and state. The Christian group also sues.[9] The main campus student newspaper, whichreceives about half of its operating revenues from the state university but is almost entirely autonomous andindependent in its editorial and journalistic decisions, is asked to run advertising by a group that denies theHolocaust. The newspaper's editors are split over whether to run the ad. The university president wants toknow whether to intervene, and if so, on which side.[10]{5} An art professor wishes to display his art in the corridors of the university center; but the art, whilehighly regarded within the artistic community, is perceived as racist, sexist, and blasphemous by manystudents and faculty. The administrator in charge of assigning space for such paintings is besieged by calls toreject the art, as well as calls to place it in a place of prominence within the auditorium.[11] A professordoing research on race relations is offered a grant, to be administered through the university, by a privategroup that is widely understood to have an agenda of racial supremacy. A faculty research oversightcommittee recommends that the school reject the grant.[12]{6} O'Neil also includes case studies involving problems which arise out of the use or application of newtechnologies. For example, he analyzes the case of Jake Baker, a student at the University of Michigan whowas arrested on charges of transporting threatening material across state lines. Baker wrote and posted on theInternet a fictional account of the rape and torture of a fellow student. Among the gruesome details in thestory was the application of a hot curling iron as an instrument of torture. Baker named the actual student ofhis fantasy in his posting.{7} Baker was "caught" by an alumnus who came across the story while surfing the Internet. This alumnuscomplained to university officials, who in turn contacted law enforcement authorities. Baker was criminallycharged and summarily suspended by the university. A federal judge ruled in Baker's favor, finding that hismere fantasies and dreams were entirely disconnected from any genuine threat to anyone's safety, and theprosecution amounted to nothing less than criminalizing thoughts and desires.[13]{8} O'Neil then describes the university's dubious disciplinary action. He calls the school's suspension heavyhanded and contrary to the values of freedom of speech which ought to pervade campus life. In addition, hestates that the action is unlikely to achieve the positive results of increasing tolerance or sensitivity within thecampus. A more measured and sensitive response, O'Neil believes, would be to encourage Baker to engage incounseling sessions.{9} Throughout all of these disputes runs the thread of the ideal of academic freedom, and the question of therole of the university in today's society. There is an endearing image of the university as set off from the restof society, not disconnected or irrelevant, but still somehow spatially removed. The university is viewed as anisland of retreat from society's constraints. The phrase "academic freedom" conjures up this image ofinsulation. Wrapped in this term are the many claims and intimations that on college campuses, policies andrules binding on the rest of society should not always apply, because universities are unique, in theirimportance and in their vulnerability. Campuses today are under pressures from many quarters tocompromise the noble idea of the university as an island of intellectual inquiry and robust discourse. Collegesare under pressure to maintain some degree of separation from the commands of the sovereign, the tantalizingseductions of gigantic financial grants, the whimsical ebbs and flows of mass politics, and the forces ofprejudice.{10} Academic freedom is a right to be taken seriously, a right distinctly valuable at a time when the world isso in need of rigorous, creative, long-term thinking about the challenges of the future. Academic freedom is acomplex right which will at times have conflicting claimants: students, faculty, administration, trustees,outside speakers. Yet at its core, academia should stand inviolable. Lest we permit the arts, sciences, andprofessions to be smothered by a depressing pall of orthodoxy, we must guard against outside interferencewith the direction of research, faculty selections, and the selection of subject matter.{11} O'Neil deals with these issues and more, in chapters on speech codes, outspoken professors, newtechnologies, off-campus speakers, the speech rights of gay and lesbian students, fraternities and sororities,college newspapers, artistic freedom on campus, academic freedom in research and teaching, and free speechissues at private universities.{12} The format is innovative. Each chapter begins with a fictional letter from a fictional college presidentseeking policy and legal advice on a basketful of speech issues currently confronting the campus. The advisorthen drafts a memorandum advising the president, interweaving actual examples of similar disputes at othercampuses, political pros and cons, issues of policy, and objective legal advice. By using this format, O'Neil isable to present campus free speech issues in a layered and complex manner, while always maintaining a firmand remarkably crisp narrative hold.{13} Simply as a compendium of examples of modern speech controversies on campuses, the book isinvaluable. O'Neil presents hundreds of campus free speech incidents, providing the reader with the sensethat he or she at least knows the lay of the land -- what has happened at other institutions and how they havedealt with it. Drawing on the political wisdom that a university president inevitably and often painfullyaccumulates, O'Neil is able to describe the various forces from on-campus and off-campus groups that cometo bear on these controversies. He also presents, with refreshing candor and balance, the policy pros and consof various alternative responses, setting them forth against the backdrop of the judicial decisions in whichthese alternatives have been litigated.{14} O'Neil's own policy preferences do ring through. He consistently favors freedom over control. The freespeech rights of individual students and faculty members will, for O'Neil, almost invariably trump thecountervailing interests of the university, even when the speech at issue is deeply offensive or outrageous. Yetthere is a pragmatic subtlety to O'Neil's judgments that makes Free Speech in the College Community anespecially rich and rewarding book.{15} O'Neil adeptly articulates the difference between sanctions imposed by a university because it finds thespeech of a student or faculty member disagreeable, and sanctions imposed by a university for performancethat fails to meet objective standards of quality and competence. Similarly, he explains in great detail andwith passion, the many steps short of censorship that a university may undertake to pursue such goals asracial tolerance or academic integrity. He presents strategies of leadership that usually involve the correctiveof education and moral suasion aimed at countering bigotry and ignorance. The book thoughtfully surveysthese issues and provides the reader with insight drawn from his vast experience with First Amendmentissues on college campuses. [**] NOTE: All endnote citations in this article follow the conventions appropriate to the edition of THEBLUEBOOK: A UNIFORM SYSTEM OF CITATION that was in effect at the time of publication. When citing tothis article, please use the format required by the Seventeenth Edition of THE BLUEBOOK, provided below foryour convenience.Rodney A. Smolla, "Free Speech in the College Community", 4 RICH. J.L. & TECH. 8, (Spring 1998), athttp://www.richmond.edu/~jolt/v4i3/smolla.html.[*] Allen Chair of Law, University of Richmond, T.C. Williams School of Law.[1] ROBERT M. O'NEIL, FREE SPEECH IN THE COLLEGE COMMUNITY (1997).[2] See generally id. at 2-7.[3] Id. at 27, 49.[4] Id. at 53.[5] Id. at 56-65; United States v. Baker, 890 F.Supp 1375 (E.D. Mich. 1995) aff'd sub. nom. United States v.Alkhabaz, 104 F.3d 1492 (6th Cir. 1997).[6] See O'NEIL, supra note 2, at 52.[7] Id. at 77-80.[8] Id. at 99-101, 106-108.[9] Id. at 99. See also Rosenberger v. Rector and Visitors of the University of Virginia, 515 US. 819 (1995).[10] O'NEIL, supra note 2, at 131-2, 135-6.[11] Id. at 149-151; Close v. Lederle, 424 F.2d 988 (1st Cir. 1970).[12] Id. at 168, 171-9.[13] United States v. Baker, 890 F.Supp. 1375 (E.D. Mich. 1995) aff'd sub. nom. United States v. Alkhabaz,104 F.3d 1492 (6th Cir. 1997).Related BrowsingCopyright 1999 Richmond Journal of Law & Technology

Free Speech in the College Community

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