October 10, 2025
The first panel of The George Washington Law Review’s Volume 94 Symposium, “Free Speech at the Crossroads: The Future of Expression on Campus and Social Media,” represented the large diversity of thought regarding free speech rights on college campuses. The panel featured Professor Jane Bambauer, Brechner Eminent Scholar at the University of Florida Levin College of Law; Professor Genevieve Lakier, Professor of Law and Herbert and Marjorie Fried Teaching Scholar at the University of Chicago Law School; Professor Mary-Rose Papandrea, Burchfield Professor of First Amendment and Free Speech Law at The George Washington University Law School; Professor Robert C. Post, Sterling Professor of Law at Yale Law School; and Professor Keith E. Whittington, David Boies Professor of Law at Yale Law School. The panel was moderated by Professor Jeffrey Rosen, Professor of Law at The George Washington University Law School and President and CEO of the National Constitution Center.
Although each panelist agreed there were inherent problems with universities’ implementation of First Amendment rights, they disagreed on how to amend these problems. With the shadow of President Trump’s Compact threatening external change, the discussion of free speech and internal university reforms is more pertinent than ever before.
Professor Jane Bambauer opened the discussion by arguing that the state can intervene in universities’ free speech policies and that state intervention is necessary insofar as it ensures diversity of faculty ideology. Professor Bambauer argued that state intervention is justifiable when correcting longstanding violations of academic integrity, but that intervention must be proportional to the violation and comply with four standards: (1) no orthodoxy within the faculty’s ideology; (2) no dishonesty; (3) no bald appeals to emotion over reason; and (4) no favoritism. As an example, Professor Bambauer examined Florida’s Stop Woke Act which fired DEI administrators and barred universities from considering diversity in hiring decisions. Professor Bambauer argued this was acceptable because it removed administrative barriers allowing for more conservative faculty members, whereas state interventions like President Trump’s Compact, which would ban belittling conservative ideals and wipe-out of entire faculty departments, would be illegitimate because it would interfere with course content.
Professor Mary-Rose Papandrea discussed the pressures for universities to curb speech and compared universities’ responses to private litigation and state action. Professor Papandrea first discussed whether Title VI should apply to religious speech on campus. In private litigation, universities typically argue that students need to learn to tolerate speech they disagree with and that this speech often deserves additional protection because it is usually political speech. Although Professor Papandrea admitted there is some credence to arguments about where the speech occurs, as students consent to speech by registering for courses, they do not necessarily consent to what they might hear elsewhere on campus. However, Professor Papandrea claimed these conversations only happen in private litigation, as universities are more likely to capitulate when the state sues them due to the specter of funding withdrawal.
Professor Robert Post offered a unique view: The First Amendment has no place on campuses. Professor Post made this assertion by assessing the Woodward Report, which states that Yale University protects the freedom of speech of controversial guest speakers on its campus. Professor Post argued that instead of focusing on the First Amendment, universities should decide whether the guest lecturer contributes to its main goals of expanding knowledge and educating students. Normally, Professor Post argued, there is no free speech, as faculty compels and discriminates against students’ speech through assignments and grades. Therefore, guest lecturers should speak on campuses if it serves an educational purpose. Professor Post argued that it is not educational to merely present a controversial figure or idea. Rather, there should be some element of debate to serve the educational purpose.
Professor Keith E. Whittington focused on protecting faculty’s speech in memos, meetings, and hiring decisions. This issue has not been discussed by the Supreme Court yet, but two of its precedents may apply: Pickering v. Board of Education, 391 U.S. 563 (1968) (recognizing a First Amendment interest when a teacher speaks in their capacity as a citizen), and Garcetti v. Ceballos, 547 U.S. 410 (2006) (holding there is no First Amendment protection for government officials’ speech while performing their duties, but dicta indicates this does not apply to university professors). Professor Whittington argued that Garcetti should not apply to both the content of faculty’s lectures and their intermural speech because memos and other statements must be protected according to the academic freedom interest.
Professor Genevieve Lakier focused on comparing the “Traditional Model” of campus speech regulation with the “Alternative Model” promoted by President Trump. Professor Lakier explained how three core elements underpin the Traditional Model: (1) institutional autonomy from political control, (2) faculty governance over speech policies/hiring decisions, and (3) extramural speech maximalism. Although Professor Lakier admitted that this Model needs reform, she argued that the foundation should remain, as it best promotes diversity of thought. Professor Lakier then compared this to the Alternative Model, which is underpinned by political control through funding and surveillance with significant constraints on extramural speech. Professor Lakier argued the Alternative Model, promoted by President Trump’s Compact, is likely unconstitutional because it compels speech via coercing universities to promote conservatism or lose their funding.
Finally, the panel responded to student questions regarding the impact of President Trump’s use of state intervention, and all agreed we were in a crisis. Professor Bambauer expressed that this state intervention could cause a counterreaction that would interfere with more sensical reforms. Professor Lakier discussed the limited ability of students and faculty to resist the state’s control due to the stark power imbalance. Professor Papandrea expressed that agreeing to the Compact’s terms may further diminish public perception of universities, yet signing the Compact offers no guarantee of continued funding. Professor Post voiced concern that universities’ right to exist is becoming a political issue and that partisan control runs counter to the very foundation of universities’ educational purposes. Professor Whittington was concerned about rising illiberalism, which would only serve to exacerbate the problem. Professor Rosen concluded the panel by echoing the concerns over illiberalism and ideology over facts, which is why discussions regarding the need for and degree of university reform are more important than ever before.
This summary was authored by Thomas Witcher, Member.