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William & Mary Law Review

Authors

Jamal Greene

Abstract

One underappreciated cost of constitutional rights enforcement is moral hazard. In economics, moral hazard refers to the increased propensity of insured individuals to engage in costly behavior. This Essay concerns what I call “constitutional moral hazard,” defined as the use of constitutional rights (or their conspicuous absence) to shield potentially destructive behavior from moral or pragmatic assessment. What I have in mind here is not simply the risk that people will make poor decisions when they have a right to do so, but that people may, at times, make poor decisions because they have a right. Moral hazard is not about how individuals behave in general but on the margins. It concerns the incentive effect of holding security against worst-case scenarios.

Thus, imagine a D.C. parent who, inspired by the Supreme Court’s decision in District of Columbia v. Heller, keeps a loaded handgun within reach of a toddler. A significant risk of injury to the child is present whether or not handgun possession is constitutionally protected. But, on the margins, the risky behavior may be more likely to occur if prosecution for illegal possession is off the table. Or consider a homeowner who refuses to sell his or her home for an economic development project at a price that he or she would accept in the absence of property protections under the Takings Clause.

The free speech guarantees the First Amendment confers are especially vulnerable to this kind of incentive effect. Courts have interpreted the First Amendment to impose nearly absolute protection for speakers from state discrimination on the basis of the content or viewpoint of their speech. At the same time, individuals who engage in provocative speech often do so precisely to garner attention, so ordinary counterspeech or other legally available methods to bring such speakers in line with social norms can prove counterproductive. Speech whose provocative character would otherwise need to be defended on the merits can be defended as a conspicuous exercise of constitutional rights in light of courts’ interpretation of the First Amendment. That posture can then encourage counterspeakers to be equally or more provocative, or else to eschew the law altogether and resort to forms of civil or even violent disobedience.

This Essay offers some observations on how to escape this cycle with particular reference to racist or other provocative speech on college campuses. No one is satisfied with the state of play here. Conservatives argue that university life is dominated by liberal professors and administrators who protect cloistered left-wing students from hearing opinions they do not agree with. Progressives counter that right-wing campus groups are not interested in dialogue, but rather seek to recruit provocateurs to assault minorities and women with hate speech. Both sides press their case aggressively and do so in the language of free expression—the freedom to offer controversial opinions on the one hand and the freedom to engage in collective, effective counterspeech on the other. What is more, for both sides, the language of free expression is not just consistent with, but is motivated by, an idealized vision of university life.

As Part I discusses, the danger of moral hazard varies with the proportion of risk borne by third parties. Speech can be produced at a low cost relative to other activities. And even bracketing the potential harm to those who feel burdened or threatened by racist speech, the potential for violence in response to such speech imposes, at times, significant economic costs on universities and law enforcement agencies. Those costs are not internalized by the speakers, who are often seeking exactly the attention that visible security measures produce.

Part II establishes what is already well-known to constitutional scholars, namely that the First Amendment is not absolute. Neither the constitutional text, nor constitutional history, nor even constitutional doctrine establish that the First Amendment is incapable of being sensitive to the institutional context in which speech takes place. Moreover, and contrary to some conventional wisdom, unbridled freedom of speech is ill-suited to a university setting. As Part III elaborates, from admissions decisions, to pedagogical choices, to the hiring of faculty and administrators, universities are quintessential curators of speech. In an information environment in which citizens can expect to be flooded with data that is either indiscriminate or calculated to mislead, it is more important than ever for educational institutions to serve their essential function.

Finally, and most significantly, Part IV argues that universities nonetheless should permit provocative speakers on campus. Many of the reasons asserted for permitting such speakers—the linedrawing problems, the capacity for incidents to act as teachable moments, the importance of inculcating tolerance, and so forth— are persuasive. The point, though, is that these considerations are best understood not as interpretive arguments about constitutional free speech guarantees but rather as merits arguments in favor of a permissive campus speech policy. Colleges and universities, whether public or private, should have the discretion to reject these arguments in favor of more interventionist approaches. They should also have the discretion to experiment with different approaches to security costs for provocative speech. That is, rejecting or canceling a speaker because of a school’s inability to afford security born of a predictive concern about the behavior of protesters should be permitted under the First Amendment, notwithstanding longstanding suspicion of allowing a “heckler’s veto.” This posture creates an incentive for individuals and groups to engage in or threaten disruptive acts, and so carries its own risk of moral hazard, but whether to abide that risk should fall within a university’s discretion.

That discretion is appropriate as a matter of first principles in light of the role colleges and universities play in public life. The discourse of rights in campus policy debates distracts students from the need to persuade each other of the merits of their arguments. Building some distance from that discourse is also helpful in developing best practices around campus speech, permitting policy experimentation otherwise choked off by a more absolutist approach to free speech.

There is a broader point. We are accustomed to thinking about the risk that a government unconstrained by rights will abuse its power. Lee Bollinger emphasized the importance of guarding against this danger in the realm of freedom of speech. For Bollinger, we answer this challenge by “giv[ing] judges as little room to maneuver as possible ... [by] extend[ing] the boundary of the realm of protected speech into the hinterlands of speech in order to minimize the potential harm from judicial miscalculation and misdeeds.” Vincent Blasi discussed freedom of speech in similar terms, writing that “the overriding objective at all times should be to equip the first amendment to do maximum service in those historical periods when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically.” Blasi has termed this point of view “the pathological perspective,” and it is as powerful an idea within First Amendment law as anywhere else.

But the conferral of a right is itself a grant of, at times, extraordinary power to contravene the wishes of public officials or other members of one’s community. There are pathologies evident within this practice as well, and they warrant our attention. Our free speech paradigm is an inheritance from the 1960s, a period of radical social and political change. Free and often provocative speech was an engine of that transformation, and college campuses were an important site of such speech. There is good reason, though, for the form of constitutional law to match the kinds of conflicts it is typically, rather than aberrationally, called to police. Curating speech might be not only appropriate, but also necessary in a world in which speech is not scarce but is abundant and paralyzing. Colleges are precisely the institutional actors to experiment with the policy choices appropriate to a twenty-first century social and technological environment. Free speech doctrine should give them the space to do so.

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