Stanley Marcus, Eleventh Circuit judge concurred in Speech First, Inc. v. Cartwright:
Judge Newsom has my full support for the Court’s decision. The University of Central Florida’s discriminatory-harassment policy almost surely violates the First Amendment. This policy is extremely broad and based on viewpoints and content, it restricts free speech.
To emphasize the dangers of a policy that strictly enforces intellectual dogma, I am writing separately. The history is full of examples of times when universities and colleges stopped seeking truth but have become cathedrals to the worship of certain dogmas.
A society that puts truth above all else is at risk of falling into ignorance if it doesn’t have access to academic institutions. People aren’t smart enough to think of ideas that can be challenged and discussed. A discriminatory-harassment policy that assumes the most popular idea or the idea that least “interferes with, limits, deprives, or alters the terms or conditions of education” is the correct one is plainly at odds with the First Amendment and our notion of free speech.
In a university environment, our fundamental ideas need to be examined again and again. It isn’t always easy or cordial. However, the process cannot be stopped. Sometimes it is painful or provocative or exhausting. “Education isn’t meant to make people feel comfortable. Instead, it should be designed to help them think. The universities should provide the environment for hard thought and, therefore, strong disagreement and independent judgement. The Committee on Freedom of Expression Report, Univ. University of Chicago (2015). (quoting President Hanna Hobborn Gray).
The University’s discriminatory-harassment policy touches on every conceivable topic that may come up on a college campus. The policy does not target religion, politics, ethnicity or gender identity, expressions, genetic information, age, gender identity, birth, national origin, age, gender identity, or expression. These topics are not orthodox and can result in severe intellectual discord. This harm extends to students as well as professors. After graduation, these values are certain to be passed on to future scientific and civic leaders.
If a university places its greatest emphasis on safe intellectual space or protection of emotions, it has abandoned its core mission. In some situations, such as at family dinners, the primary goal might be to create safe space or protect emotions. But it’s not appropriate for universities. The pursuit of truth must be its unambiguous mission. John Stuart Mill summed it up best in his classic book, Liberty:
Silencing opinions is an evil. The human race is being robbed of their expression. They are denied the chance to exchange error for truth if the opinion is correct. If wrong they lose the ability to see the truth clearly and get a more vivid impression.
University that transforms itself into a refuge from controversy is no longer a university. It has only become an asylum.