University general counsel can play a unique and powerful role in assuring campuses across the country correctly handle free speech clashes without trampling on anyone's constitutional rights, according to the leader of a new report on free expression.

“Particularly in our polarized political climate, clear-eyed guidance that hews to legal principle will go a long way to helping campus communities navigate these evolving challenges,” Jonathan Friedman told Corporate Counsel. Friedman is the campus free speech project director for PEN America, a nationwide group of 7,000 writing professionals who champion freedom of expression.

Friedman spearheaded the research and drafting of PEN America's latest report, “Chasm in the Classroom: Campus Free Speech in a Divided America,” which was released Tuesday. The 100-page report looks at recent trends, including the rise of hateful speech and incidents of bigotry on campus; shutdowns and disinvitations of controversial speakers; outrage campaigns against faculty members for their speech; the mixed views of a new generation of students on issues of free speech and hate speech; and problems with federal and state legislation purportedly aiming to protect free speech in polarized campus environments.

The report came out only three days after a high-level U.S. Department of Justice official gave a speech at Harvard University decrying the “crisis in campus speech,” and two weeks after President Donald Trump's March 21 executive order mandating that colleges uphold free speech or risk losing federal funds.

The report blames an increase in hate crimes, political polarization and heightened racial tensions that have occurred during the Trump administration for creating new challenges for free speech on campus. It debunks the Trump administration's account of free speech threats emanating only from the left, and details an array of infringements on speech, with special criticism of the Department of justice.

Saying there is a “gray area between politics and hatred,” it reviews the role of the Justice Department in 2017 and 2018, under former U.S. Attorney General Jeff Sessions. The report accuses the DOJ of “raising alarms over free speech that were consistently politicized and one-sided.”

As PEN America Chief Executive Officer Suzanne Nossel put it, “While we have never thought that there was a crisis per se when it comes to campus speech, there are legitimate concerns about ideas and viewpoints that have become hard to voice amid a climate of intense ideological rancor. While President Trump has spotlighted threats to speech emanating from the left, our analysis reveals that intolerance of opposing views cuts across the political spectrum.”

The study analyzed more than 100 speech-related controversies in recent years, finding that many involved tensions between free speech and equality or inclusion.

The report says college officials, including general counsel, “must be supported in their efforts to defend free speech on campus and must be equipped with the legal and moral arguments to confront the challenges that the Trump era presents.”

Friedman explained that the report's analysis was shaped by four “convenings” in the 2017-2018 academic year on campuses that had been sites of free speech controversies: the University of California, Berkeley, Middlebury College, the University of Maryland at College Park and the University of Virginia at Charlottesville.

He said college general counsel or in-house counsel who took part in the meetings worried about the conflict between free speech and school values, such as equality. The in-house lawyers “voiced some concerns related to ensuring compliance with First Amendment requirements, in terms of both freedom of speech and freedom of assembly, as well as the application of harassment and discrimination law, and the obligation to provide equal opportunities regardless of membership in protected classes,” Friedman explained.

He said the general counsel were well aware that some campuses have been sued for alleged violations of expressive rights and were “watching those cases closely to monitor applicable legal standards.”

Friedman added, “We know from our work how difficult it can be to host controversial speakers, or to investigate the facts in the wake of an incident. We believe that general counsel can play a unique and powerful role in these matters, both by educating administrators and senior leaders about the law, and by reminding them of the need to consider the rights of all parties—students, speakers, faculty, and protesters alike—in any decision-making processes.”

The report offers five pages of guiding principles for college faculty, administrators and student leaders on how to navigate campus controversies in ways that ensure a robust defense of free speech while forcefully addressing bias and bigotry.

For example, the report advises, “Campus leaders should forcefully condemn hate crimes, slurs, and the display of manifestly hateful symbols or slogans,” which may be constitutionally protected speech, while “making clear that such expression violates their institutional values of inclusion. They should also offer support and assistance to those affected by the incidents in question.”

The report also cautions that campus speech debates in the United States can have unintended global ramifications. “Countries where campus speech issues are playing out in ways that echo developments in the United States include Australia, Canada and the United Kingdom,” it says.