We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is a transcript of the second segment of Episode 56, which includes highlights from a recent symposium about the current state of free speech on college campuses. The event was organized by the Thomas Jefferson Center for the Protection of Free Expression. To read Part 1 of the Episode 56 transcript, click here.
This is a lightly edited transcript and may differ slightly from the podcast.
Dahlia Lithwick: Is the right to free speech under threat on the nation’s college and university campuses? That was the question at the heart of a two-day symposium at the University of Virginia this past October. It was organized by the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, home base of this very podcast. I’m on the board of the Jefferson Center, and I was fortunate enough to be invited to be a panelist in the October symposium. For the remainder of this show, we’re going to share a few highlights from this truly thought-provoking event.
It was motivated by the drip-drip of controversies over the past few years about a whole range of speech restrictions on campuses, things like trigger warnings, and speech codes, and the sanctioning of invited speakers and faculty members and student newspapers in response to unwelcome ideas that they had articulated.
The Jefferson Center symposium tried to better understand the legal issues raised by these controversies and what colleges and universities can do going forward to stay on solid Constitutional ground. The first piece of audio we’re going to play is from the lead off panel. It’s a little bit on the long side, so bear with us. You’re going to recognize the voice because, well, it’s mine.
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Dahlia Lithwick: So just in the interest of setting the table, and I think some of these points have been made already, but Greg Lukianoff, president and chief executive of the Foundation for Individual Rights in Education, almost a year ago this month put forward in a big, big piece, a cover story for the Atlantic, the proposition that this all represents “The Coddling of the American Mind.” And he went on to list a whole host of things, some of which you’ve heard, comedians who stopped coming to campus because they don’t want to be shouted down anymore. A professor at Yale who has advised that she cannot teach rape law using rape language because it’s triggering. Laura Kipnis at Northwestern who is subject to a Title IX complaint about an article that she wrote.
You know, this is a huge panoply of actions that happen on campus, in addition to what we’re hearing about at Yale, at Missouri, the complete collapse of civil discourse in gotcha snippets of video that then go viral as though to implicate an entire group of protesters on either side. And maybe more troubling, really, really deep cuts at, for instance, the Wesleyan student newspaper based on an article that was printed that could have been printed in any right-wing columnist newspaper, but actual funding being cut.
And this really, I think, escalates when you have, again, Missouri. Protesters chasing out reporters and saying this can’t be covered. Having to sign a pledge as a reporter that you will cover a topic that you agree with, but if you don’t agree with it you can be bounced out of the room. And the real implications I think for student press that have to be a central part of this conversation. And all of this culminates, as John Jeffries suggests, in the letter that goes out to the University of Chicago freshmen saying welcome to school, we sure hope you don’t have feelings.
And this theme as a really savvy and sophisticated response to a panoply of problems I’ve just listed. And so what I want to suggest is that for one thing, and this is important from that Atlantic article last year that I think at least triggered this wave of discourse in the media around the subject. This is not the same as the wave of “political correctness and speech code” we saw on campus when I was coming up not that long ago. This is a very different proposition. A huge part of it informed by new media. By the ability to create a record on a camera. So this is not same old/same old. This is I think an escalation, both in kind, and really in meaning, in existential meaning of what we’ve been seeing for the last decades.
So what are the claims of the folks that are seeking trigger warnings, a stop to what they call micro-aggressions and safe spaces? They’re not in any way unreasonable claims. What they’re saying is this isn’t just speech. That this is speech that leads to hateful acts. And that sometimes it itself is experienced as an assault. And to say that this is just speech is to not understand the effect that speech can have on you as a student isolated in a college away from home possibly for the first time.
Their claim is that the campus is a special place. And I think this is another point that Blake makes so artfully. This is not the real world. This is a place that’s supposed to be fomenting something that is not quite the real world and that it has an obligation to protect you from the most brutal components of real world discourse.
Their claim, again, it doesn’t sound wrong to me. That this isn’t necessarily about free speech, but license for privileged groups to offend and marginalize and put down groups that have historically been offended and marginalized. This is not a playing field that is necessarily equal. This is a playing field that benefits groups that have always been benefit, and they want to level the playing field.
So that’s the arguments on the one side. And, of course, the claims on the other are pretty self-evident. And here I would just quote David Baugh, the African-American lawyer, who initially represented Barry Black in the cross-burning case at the Supreme Court. When asked about the campus speech problem, he said, “Look, part of being an American is the obligation to listen to language that makes you uncomfortable.” And graded into that response, I would say I did a panel a few months ago and listened to Ted Shaw from the NAACP Legal Defense Fund, who is as conflicted as I am about these issues. His point was that as soon as you start restricting speech ostensibly to protect disadvantaged groups, you know who always gets it in the end? The disadvantaged groups. That it is invariably, in his view, the African American who is hurt more by speech codes and attempts to protect minorities than anyone else. That’s the slippery slope that he fears.
So, the arguments on this side, of course, are the self-evident First Amendment arguments, that the cure for bad speech is more speech. The way to air bad ideas is to discuss them, not to suppress them. And that college exists to teach critical thinking and to shape minds. And if you protect people from any idea that they find offensive, you are not doing the foundational work that colleges are meant to be doing. And, I think, the coda to all of that is that coddled children who are protected from any bad words that they don’t want to hear cannot then go out into the world and function the way Blake is suggesting we need to function out in the world. That college is not the place to remove real meaningful discourse in the interest of pure civility.
So, those are the arguments. I want to just tell you what students want, and I think again John Jeffries hinted at this, but this is the part that’s quite dispiriting. I don’t know if you’ve seen the Gallup Poll from 2016 that shows that regardless of the academic abstract argument that we may have in this room, students really, really like the idea of suppressing speech. Sixty-nine percent of students polled in this recent Gallup poll say that they think that there should be speech codes that restrict slurs or offensive language—69 percent approve of such speech codes. Sixty-three percent want schools to restrict any costumes that stereotype racial or ethnic groups; 49 percent support restricting the media’s right to cover protests.
Let me say that again: 49 percent of students polled favor some restrictions on the media’s right to cover a protest.
Fifty-five percent of students believe that campus climates “prevent people from saying things that they would like to say.” So, there is an enormous, I think, conflict right there, where we have students who want more restriction of speech but also feel that they are not themselves free to speak. It seems to me that that is the paradox at the heart of this conversation around speech. That everyone wants more free speech for themselves, and wants to be able to say exactly what they want to say on campus, but they want to hear less and less speech that offends them.
So, I want to just make this point because I think it’s so crucial to the conversation that will happen in the next two days. It is so critically important for purposes of this conversation to just aggregate all of the different pieces of what we call speech suppressive regulation on campus.
And that means that disinviting speakers from campuses is one problem. It is a separate problem from shouting down speakers at protests, which is a separate problem from defunding newspapers or regulating what newspapers can publish, which is a separate problem from disciplining fraternities or student groups for costumes they may wear or events they may hold, which is in itself a different problem for demands inside the classroom for trigger warnings or safe spaces to discuss complicated and fraught issues, which in itself is a different problem from campus speech codes, which include the 10 UC campuses this year that has enacted regulations suggesting that discussing criticism of Israel can be construed as antisemitism. That in itself is a different problem from the discipline of academics for things they may post online.
These are not the same problem. They do not carry with them the same First Amendment interests. They do not carry with them the same pedagogical interests. Going forward, it seems to me, unless we can be very crisp in defining what we are talking about when we talk about campus speech and the blowback to campus speech, this is an almost impossible conversation to have.
Also, I would just say that it is not in any way useful for us to be talking about this in terms of calling students special snowflakes on the one hand and deriding their interests, or alternatively in really saying that institutions have a deeply entrenched interest in punching down to disadvantaged minorities. None of those stereotypes are true, so I think we have to have a much more open-hearted understanding of what the interests on the other side are.
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Lithwick: So, that was me speaking at a Charlottesville symposium back in October called Free Speech on Campus. The next speaker you’re going to hear is Eugene Volokh. He’s also on the board of the Thomas Jefferson Center for Free Expression. He’s a law professor at UCLA, and he’s founder of the incredibly indispensable libertarian/conservative legal blog Volokh Conspiracy. In the clip you’re about to hear, Eugene has just recounted the story of a moot court at an unnamed law school where students were apparently reprimanded by a faculty adviser for mentioning a very relevant legal precedent. Simply, because that precedent had to do with the potentially hurtful subject of cross-burning. So, here’s Eugene.
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Eugene Volokh: So, here’s one perspective for thinking about it. Imagine that you had heard five years ago Rush Limbaugh say, you know what’s wrong with all of this talk about trigger warnings and safe spaces and speech codes and such, I can imagine that what’s going to happen is somebody won’t be able to have a moot court where it has a leading precedent because that happens to be about cross-burning. And people would respond, oh that’s ridiculous, conservative, scare-mongering. You’re just building up this nonsensical strawman to ride in your foolish parade of horribles. That’s what they’d say.
If there was a term that I could come up with for the last five years, it would be the march of the living strawmen. The strawmen who we thought were strawmen have come to life. They’re not actually strawmen at all. They really are there. They really are there.
So, this fellow is Lord Melbourne. He’s noteworthy for various things. He was a prime minister. Of no great accomplishments, I think, in England. The city of Melbourne and Australia is named after him. He became notorious because his wife had a very public affair with Lord Byron, the poet. In fact, apparently she was the one who coined the famous phrase, “Bryon was mad, bad, and dangerous to know.”
And the other thing about Melbourne is that apparently the king who appointed him as prime minister in 1832 described him as “the least bad choice.” So he’s a colorful fellow, but I’m going to appropriate him for one purpose and one purpose only. There’s this quote that’s been making the rounds. And it’s so useful for so many things. It’s attributed to him. There’s some doubt about providence, but good enough for our purposes: “What all the wise men promised has not happened. And what all the damn fools said would happen has come to pass.”
When there’s talk about these speech codes, like the speech code that was struck down in the University of Michigan or various others, it’s always, well, look, just very modest restrictions. Just civility. Who’s against civility? Let’s just make sure that people talk in productive, thoughtful ways. Let’s ban epithets, or at least certain kinds of epithets. And yet when somebody says, well what about the implications? Oh, that’s just slippery slope nonsense.
But somehow it all comes to pass. Sometimes in the very code that’s being proposed, in the very examples to it.
Let’s say this university and people decide they want to have a protest by trampling on the Confederate flag. And offended students filed charges of attempts to incite violence and create a hostile environment. Charges of actions of incivility. And university begins a month-long investigation of the college democrats who organized that—oh, I’m just joking, obviously that would never happen. It’s obviously clear that trampling on a flag is a constitutionally protected symbolic expression and people are free to do it, even if some people are quite offended.
Well, this is what did happen. There was an incident in which the College Republicans at San Francisco State University were trampling on the Hamas flag. Now, I use the Confederate flag analogy advisably. This is from the Hamas charter. The Day of Judgment will not come about until Muslims fight Jews and kill them. That’s just a little sample of what the Hamas charter says. This is a Hamas chapter quoting a passage from the Koran.
The SFSU people didn’t like much Hamas, so they made a copy of the Hamas flag and they trampled on it. Now, it turns out the Hamas flag in the Arabic calligraphy contains the name of Allah. They didn’t know that, although perhaps if they did know that they’d say, OK, fine, well, all right. But we’re trampling, we don’t like Hamas.
Offended students filed charges of attempts to incite violence and create a hostile environment and actions of incivility. The university began a months-long investigation of the College Republicans. Again, if you made that up as a hypothetical at the time the proposal, or excuse me, the speech code, that ultimately was struck down by federal district court on First Amendment grounds, when it was proposed people would say well, no, no, no, obviously not. No, we’re just after people going around shouting it. But, well, oddly enough, oddly enough, that wasn’t what it was limited to. And, of course, you could tell by reading it, because if you read the speech codes you will often find that the way they’re interpreted is actually quite consistent with the way that they were written.
Janitors reading a book leads to discipline by the university. What’s the book? Notre Dame vs. the Klan. He was sitting there reading it at—I want to get this right—Indiana University-Purdue University Indianapolis. If I’ve got it right, it’s IUPUI, or I don’t know how it’s pronounced. He was sitting there reading this book, public university. And he was disciplined by the university. “You used extremely poor judgment by insisting on openly reading the book related to a historically and racially abhorrent subject in the presence of your black co-workers,” the university said in a letter to the janitor. He was creating this bad environment for black coworkers for reading a book that was about the Klan.
Now, this is not The Birth of a Nation. This is a book about how the fighting Irish defeated the Ku Klux Klan. Not good enough. Not good enough. You shouldn’t have read the book about any such topic at the university.
Again, if somebody had come up with this as a hypothetical, people would have mocked him for setting up a strawman.
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Lithwick: That’s Eugene Volokh, a First Amendment specialist at the UCLA School of Law.
Now, another First Amendment specialist who spoke as part of the symposium in October was Leslie Kendrick. She’s on the faculty here at the University of Virginia’s School of Law. And as you’ll hear in the next excerpt, Leslie offered an extremely helpful framework for grounding this often nebulous concept of “academic freedom.”
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Leslie Kendrick: It’s important to sort out, I think, when we’re having these discussions, are we making a descriptive point, this is what the law is, or a normative point? So, someone says he shouldn’t have been fired for saying that. Does that mean it was illegal to fire him for saying that? Or it should be illegal to fire him for saying that? It’s often not very clear.
If we’re talking purely about the normative perspective, we don’t care what the law is in this country, but we want to say this is how the law should be. I think it’s important to recognize that people have different perspectives on this, both in terms of the all-purpose rules that should govern and the university-specific rules.
For a lot of people who want to argue for more regulation of speech on college campuses, I’m always curious about if they mean that should be the rule that governs all of us as citizens, that hate speech should be a category of unprotected speech? Or do they mean the university is special in some way and we have to have special speech regulation that pertains only to the university. It’s important to ask that question, because those are two very different types of arguments to be making.
And you can make an argument that we should have more regulation of hate speech as a normative matter across the board in our society. The European Union does a lot more of it. Basically, all western democracies do more of that type of regulation than we do.
So you could have a normative conversation about that. You could also have normative conversations about the university and what the university is supposed to look like. And people, I think, come at this from two different directions. Some people say of all places the university is the one that should be the most preserving of free speech. A university is a place of free inquiry, free debate. That is what a university is for. That’s what it does.
But you could also have people who say regardless of what we do with hate speech out there in the world, when you have students who are paying to be part of a community, and you know, we’re usually talking about young people here. They’re just starting out. They have equal standing in that community with other people. And they have a right to expect that their basic right to be there, their basic status as an individual deserving of equal dignity and respect will not be undermined by the very institution that they’ve gone to for an education.
Those are two different views that put special duties on universities. Either special duty to recognize freedom of speech, or special duty to regulate it.
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Lithwick: That was UVA professor Leslie Kendrick. Now, further complicating this picture that she lays out is the fact that the bounds of academic freedom may depend at least in part on whether or not a professor is employed by a public or a private university. And this was one of the ideas offered up at the same symposium by Vikram Amar, dean at the University of Illinois College of Law.
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Vikram Amar: It’s often thought that, as professors, especially at public universities, we enjoy some special role to play in the First Amendment and that we’re protected by some special academic freedom. I’m not actually sure that we public faculty have it so good in this respect. And to illustrate that I want to compare the free speech rights of public faculty to three other groups: students, private faculty, and other public employees.
I think it’s pretty clear that students have more expressive rights than faculty do at public universities. Going back to the micro-aggression policy at the UC. UC defined micro-aggressions to include things like saying America is a melting pot. Or that the best person should get the job. And if a university tried to punish students or deter students from saying those kinds of things, I think no one would. Everyone would say, of course they have a First Amendment right to that. But to the extent that they’re trying to direct faculty activities, there’s more leeway for the employer to do that.
And the reason is because they are our employer. And competing with the First Amendment’s right to speak is the right of employers to accomplish their employment goals. There’s a long line of cases, Connick v. Myers, Garcetti, that say that employers can regulate speech of employees even when the employers are public with a pretty generous hand.
Now, there’s some question about whether Garcetti fully applies to public faculty. There’s a bracket in the case that refers to this idea of academic freedom, but in my experience every time the Supreme Court has gone back to look at academic freedom as a constitutional matter, it doesn’t usually find too much.
Second comparison is between public and private faculty. Here, too, I think if you look at what the government could do to regulate faculty down the road at Duke, it’s far less than what they could do to regulate faculty here at the University. If the legislature of Virginia wants to tell the faculty at UVA what to do, they have a much greater leeway to do so than at a private school. So, relative to our private counterparts, we actually have less, even though we work for the government.
And then third, and this one is the most counterintuitive. I think faculty have fewer expressive rights at public universities than non-faculty employees in a lot of ways. You say well we’re all employees, so shouldn’t we at least be on a par with people who work in other elements of the university. And I’m not sure, for two reasons. One is there is inherently a content and viewpoint-based appraisal of people who do scholarly work. It’s impossible to assess scholarship without assessing the viewpoint and the subject matter of what’s being done.
Some scholarship is not valuable because it doesn’t talk about important things. And some scholarship is not valuable because it takes positions that are not credible given scholarly norms. And so the faculty are already in an arena where their bosses are having to make these determinations. I didn’t think that the challenge to Obamacare under the Constitution in 2012, I didn’t think it was a very strong constitutional argument. I didn’t do this, but if I as a Dean were to decide not to extend an offer of employment to someone because their article laying out the argument wasn’t very good scholarship to me, because I didn’t think the argument made sense, I’m not sure she has a First Amendment claim.
The fact that we are in the idea business opens us up to evaluation based on the content and sometimes the viewpoint of our ideas. That’s not true for people who work for the university who are not engaged in the ideas.
Secondly, and relatedly, what we do as professors is sometimes effected by our off the job activities. If a professor is a member of the KKK, she may not be able to do her job in the classroom in a way that a groundskeeper could be a member of the KKK and still mow a mean lawn.
The reality is we have to engage our students. They have to find us credible. They have to find us accessible. They can’t be afraid of us. They can’t be turned off by us. And that, too, gives the government employer more leeway to regulate us.
So I think in a lot of ways academic freedom is an idea that we talk about, but I’m not sure how much constitutional content there is to it.
I will say three things before I stop. One is the Constitution is not the only game in town. A lot of times academics are protected by custom, by tradition, by contract law, by regulation, by promises. Great universities promise to allow more leeway than the Constitution might require. Whenever we’re in a university context we always have to be clear, and this goes back again to something I think Leslie said, we’ve got to be clear what body of law we’re looking at. What’s doing the concern? Sometimes it’s not the Constitution but it’s a norm or a promise that’s been made that’s equally constraining.
Second, within the Constitution due process is an under-discussed value with respect to academic freedom. I tend to think of academic freedom not so much as a right to say what I want to say, but a right to know what’s going to get me into trouble. And so I think that the university employers have to give clear guidance about what crosses lines. You just don’t want academics to be sand-bagged. I think that’s bad business. And at some point it violates the Constitution.
Then, finally, I think academic freedom or free speech among academics used to be very important in a different sense of the word free. And by this I mean the speech used to be very subsidized. We tend to think of freedom as freedom from government regulation. But if government is going to pay for your speech, that’s another sense, an important sense in which it’s free. Public university faculty get to speak freely because someone else is footing the bill. And that’s a very important element of freedom, but it’s one that unfortunately is becoming less meaningful in a world where states have defunded public universities. And I think people don’t pay as much attention, but that is in some ways the bigger threat to research ambition and the proliferation of ideas that’s out there It’s just that we’re not providing the platform to do it as opposed to regulations that are telling us what we can’t do.
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Lithwick: That was Vikram Amar, dean at the University of Illinois College of Law, which raises the question what is it, really, about free speech that we hold so very dear and why do we value it, especially in the academic context? Dartmouth College professor of philosophy Susan Brison had some incredibly interesting things to say on this front, about what she refers to as the “argument from truth.” This is the idea that the free exchange of ideas gets us closer and closer to the truth because when it’s pitted against falsehood, truth will always win out.
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Susan Brison: I think the argument from truth, that is that we don’t want the government to be restricting speech because if they do so the truth is less likely to win out in the long run, is actually a pretty good argument for allowing free speech of a certain kind in a philosophy seminar, where people are actually there because they’re trying to arrive at the truth about some subject or other. And they’re all sort of rational processors of information, listening ideally to each other. And they have this common goal of arriving at the truth.
But if you look at the world today, and how people communicate, look at major media outlets, it doesn’t seem like what we’re talking about is a philosophy seminar.
I’d say another argument is the argument from democracy, that we can’t have the government restricting speech because that’s going to interfere with our having a well-functioning democracy. Everybody needs to be able to express their views, and everybody needs to have access to everybody else’s opinions. But sometimes speech can silence other people if people are being marginalized and excluded from the conversation. If they’re being threatened or humiliated so that they don’t feel that they can speak, we’re not going to be hearing their views.
But what I find interesting about these two arguments for free speech is they both are based on the view that we value speech because of what it can do for us. Right? Why do we value speech? We value it for its ability to lead us to the truth, ultimately. Or, for its ability to bring about a well-functioning democracy.
But, if that’s your view, if you give that kind of consequentialist argument for right to free speech, then you need to be open to the possibility that restrictions on speech might be better able to serve that goal. That’s going to be an empirical question.
Some philosophers have instead said, no, the right to free speech just is a fundamental human right. It’s part of the right to autonomy that we all have. This is purported to be a non-consequentialist argument for the right to free speech. That for the government to stop me from saying something is just violating my right to autonomy. Even if stopping me is going to bring about greatest happiness for the greatest number. It’s going to bring about a better society.
The difficulty with this, there’s several difficulties. One is that it’s very difficult to pin anyone down on what is meant by autonomy. A number of legal theorists cite Harry Frankfurt’s view about autonomy. That it’s a matter of having your first order of desires in line with your higher order preferences. But if you look at that philosophical view, you could actually be autonomous, an autonomous individual, and be found gagged and thrown into a dungeon by your government. So it doesn’t really work to support this particular view about free speech.
But in addition, people who propose this need to acknowledge, I think, the ways in which people using speech can undermine other people’s right to autonomy. If you buy this, that we do have a right to autonomy, then I think there’s an obligation to determine whether unrestricted speech can sometimes violate that right as much as restrictions on speech.
So I realize I haven’t been able to argue for this in any depth at all, but my claim is that these defenses of the right to free speech don’t actually show us why speech that has certain harmful effects can’t justifiably be restricted.
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Lithwick: That was Susan Brison, professor of philosophy at Dartmouth College. The very last snippet we’re going to share with you today is from historian Claudrena Harold. She’s a professor at the University of Virginia and she focuses on the 20th century American South. In the section you’re going to hear, she reflects on an earlier generation of UVA students who took a stand for a university community that was more inclusive of African Americans and of women, and at the time it was a very unpopular stand.
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Claudrena Harold: I truly believe that those folks who were organizing in 1964 and 1965, what it meant to sit in Cabell Hall in 1963 when Dr. King said segregation is on its deathbed. And what it meant to clap in that audience. To courage. They were not the majority. And I truly believe that the stance that they took on issues of race, on issues of gender equity, they helped create the modern UVA as I know it. And that couldn’t have happened without free speech.
That couldn’t have happened without the ability to speak and to critique. My understanding of free speech is very much informed by an anti-lynching activist by the name of Ida B. Wells. Ida B. Wells actually had a newspaper in Memphis called Free Speech. And Ida B. Wells was one of the most outspoken critics of lynching.
In 1892, she had three of her best friends were murdered. She wrote a piece condemning their lynching, but also condemning the ideas that undergirded lynching. There was a $10,000 bounty placed on her. She has to flee Memphis and she never comes back. Free speech, it carries a cost. But I strongly believe—and I don’t care what your political position—I strongly believe it’s critical to a robust democracy. It’s critical to our students knowing more.
I don’t want in my class on living wage for all of the students to agree. Because I know they don’t. And nothing concerns me more as a teacher when I’m in a class and I know someone has a different perspective and they don’t speak out. Because that person who believes that wages are based on the market, I need them to say that, because I also need that student in my class who believes otherwise to know that they need to read that work on economics. So part of my efforts to be an effective teacher is addressing all of these issues and saying the classroom has to be a place of robust intellectual activity. It’s all I got.
The responsibility of teaching, the vocation of the scholar, the vocation of the black scholar, my understanding of it as it relates to someone like the boys, this is not a game for me. It’s not about me. It’s not about my ego. It’s about advancing knowledge.
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Lithwick: Those were just a few of the highlights from Free Speech on Campus, a symposium staged earlier this fall by the Thomas Jefferson Center for Free Expression at the University of Virginia. You can watch video of the entire two-day event here.