JB

A provocative post by David Bernstein, who by the way, is speaking here today at Yale, suggests that civil libertarians should be opposed to public universities on free speech grounds: "The inevitability of content-based regulation of academic expression on public university campuses suggests a strong civil libertarian case that government should not be in the business of running universities at all."

This remark demonstrates an interesting and important split between David's approach to freedom of speech and mine. David is interested in preserving individual rights of freedom of expression from government interference; I'm interested in promoting a democratic culture in which people are free to participate in culture and express themselves. For David, freedom of speech is the sum of individual rights of free expression against government interference. For me, freedom of speech involves important infrastructural elements in technology and institutions that undergird and enrich the system of free expression, produce an educated citizenry and give them the tools and the practical opportunity to participate in the growth and development of culture. These infrastructural elements include, among others free public education, public libraries, common carrier rules in telephony and government sponsored scientific research. Put in economic terms, the infrastructure of free expression is a public good that markets will underinvest in. Put in sociological terms, the infrastructure of free expression is a precondition to a vital public sphere and the vigorous exchange of ideas. You will not be surprised, therefore that I believe that public universities (and indeed public education generally) are central (although not sufficient) ingredients of producing a culture of free expression. Put in economic terms, once again, a healthy and well functioning system of freedom of expression requires a vast array of public goods to supplement, undergird, and enrich civil society, private institutions and the work of markets.

David points out, and rightly so, that when governments run universities, they will engage in content based (and viewpoint based) regulations of speech. But this begs the question whether such regulations violate the free speech principle. Some of them surely do, but many more of them do not. When the government is engaged in the promotion of professional and academic standards, the free speech principle is not necessarily violated. Thus it is perfectly fine for a university to have a department of biology and not astrology, and to refuse to tenure people who believe that the best way to study biology is through astrology. Nor is the free speech principle necessarily violated when the government regulates speech in order to manage its internal bureaucracies. (These points are central to my colleague Robert Post's theory of freedom of expression).

David might insist, nevertheless, that lots of line drawing will be required to sort out appropriate regulations of speech from inappropriate ones; there will be many complicated cases that risk violating individual's rights and that we would be much better off if governments never ran universities, because then the maintenance of professional standards and management of bureaucracies would be entirely in private hands and so there would be little or no chance that the free speech principle would be offended. On this point I respectfully disagree. Without public universities, our cultural life would be much poorer. I now teach at a private institution, but one heavily subsidized by public money, and I spent my formative years as an academic at two public institutions, the University of Missouri at Kansas City and the University of Texas. Precisely because public education produces so many positive public externalities that, almost by definition, cannot be adequately captured by markets, it is highly unlikely that markets would take up the slack if public universities were abolished. The history of universities, even nominally private ones, is the history of a very significant amount of state support, whether it be sponsorship of Kings (as in many of the Oxbridge colleges) or the use of land grants to support public education. Indeed, democratizing education, and particularly higher education-- one of the most important achievements of the twentieth century-- was due in large part to government decisions to invest in the public. Those investments have paid off handsomely if imperfectly-- they have contributed greatly to the practical freedom that Americans enjoy today and the health and vibrancy of American artistic, intellectual, scientific and political life.

In short, freedom of speech is more than the sum of all individual free speech rights against the government. Freedom of expression is a cultural system that produces a public sphere of inquiry, learning, artistic expression and political contestation. To understand freedom of expression it is not enough to prevent government restraints. We must pay greater attention to the institutions and practices that make this public sphere healthy and vibrant. Some of those institutions and practices are private entities and result from market forces; but a great many of them are not.