Are Safe Spaces Killing the First Amendment?

Justice Holmes wrote that ‘’To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premise…the ultimate good desired is better reached by free trade in ideas – that the best truth is the power of the thought to get itself accepted in the competition of the market…That at any rate is the theory of our Constitution.”[1] This eloquent statement is the codification of the philosophy of the First Amendment. That is, that an open discourse is the only way to test the validity of any position.  It is not only the best practice, but speech is openly protected in this form. Why then are colleges, once a place that expected to challenge young minds, not only allowing but fostering so-called ‘’safe spaces[2]”?  Political science professor and First Amendment scholar Donald Downs believes that “[t]he idea of a safe space in itself is not a problem – the problem is how it’s used and how it’s applied.” Downs cites he has a safe space at home where he can get away from life’s problems but believes that “[t]he classroom is a marketplace of ideas.”[3] Holmes would agree with the latter.


In an amazing piece in The Atlantic by Greg Lukianoff and Johnathan Haidt, the safe space phenomenon seems more sinister.  They believe the philosophy underlying safe spaces “…presumes an extraordinary fragility of the collegiate psyche…The ultimate aim, it seems, is to turn campuses into “safe spaces” where young adults are shielded from words and ideas that make some uncomfortable…and seeks to punish anyone who interferes with that aim, even accidentally.”  Most chilling, they believe, is that it creates a culture “in which everyone must think twice before speaking up, lest they face charges of insensitivity, aggression, or worse.” If true, this is certainly a severe threat to the First Amendment’s requirement of participation in the marketplace of ideas to test the validity of any position.

But that potential future harm of lack of critical participation in political dialogue is far less tangible than what Lukianoff and Haidt believe to be an even more pressing issue that “the new protectiveness may be teaching students to think pathologically.” It appears that the First Amendment’s protection of open debate not only allows the best ideas to surface and take root as Holmes thought, but also might protect the mental health of those required to participate by disallowing the ability to  ‘’engender patterns of thought that are surprisingly similar to those long identified by cognitive behavioral therapists as causes of depression and anxiety.”[4]

In other words, it seems that those who speak up, speak out, who risk either being offended or offending, not only make our republic stronger but also strengthen themselves and each other. It’s your right. Use it.


—  Derek A. Jordan, Esq., Barnes Law

Derek A. Jordan is an associate attorney with Barnes Law, licensed to practice law and land surveying in Tennessee.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.



[1] See: Abrams v. United Stated, 250 U.S. 616 (1919) - Dissent

[2] Safe space defined.

[3] See:

[4] Ibid.

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