Should Free Speech be Limited on College Campuses?
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Should Free Speech be Limited on College Campuses?


Hi. I’m John Tomasi. Welcome to Brown’s
Constitution Day 2016. This is a Janus-style event. And our prompt question
for our conversation today is, should free speech be
limited on college campuses? Constitution Day is a result
of a federal mandate passed in 2004 which requires that
all universities that receive federal funding hold events
on constitutional issues on or around September 17, the
day on which the Constitution was signed. It was, alas, an
unfunded mandate. But we’re very fortunate to
have a donor who’s been helping, a foundational donor
giving foundational support to the Political Theory
Project and especially to the Janus Forum that’s
sponsoring this evening’s event. The donor is the Lacey
and Larkin Frontera Fund. It’s a very unusual fund. The fund was created by
two journalists, Mike Lacey and Jim Larkin. In 2007, Larkin and
Lacey were each arrested in their homes late
at night in a dispute over journalistic freedom
with a well-known sheriff of the Phoenix, Arizona area. Larkin and Lacey
sued the county. And when they won
their case, they decided to take the settlement–
a very significant settlement– and create the fund
for funding events like the one we’re
having here tonight. And we’re just extremely
grateful to Jim and Mike for creating that bond. I’d also just like to mention
that one of the journalists, Jim Larkin, is here today. And I hope you’ll just
join me in thanking him. Jim is here. [APPLAUSE] Thank you. So, as you know, those of you
who have been to Janus events before, our idea is to have
more than one speaker presenting more than one viewpoint
on a prompt question. We give our speakers
lots of freedom. They can talk about
constitutional issues if they like. We welcome them to do that,
but we don’t require it. They may answer the
question straight up. They may change the
question to make it better fit the ideas
they want to express to you. And we invite them to
express their ideas to you. They’re each going to speak
for about 25 minutes each. And I was just
telling both of them, what we really care about it’s
not just that they are here. What we care more about
is that you’re here. And the idea for a Janus
event is not to witness a gladiatorial
combat between people who have, perhaps,
different viewpoints. But, rather, our hope
is that each speaker will come and present a view to
you in its best light that they think of, that
they’re committed to, in the hope that
they’ll give you each of you the chance to think
more deeply for yourselves about how you might think
about these issues in new ways. So we reserve a lot of
time at the end for you, for the most important
part of the event, which is when you all will engage
the speakers in questions. So we have two speakers. Our second speaker
will be Stanley Fish. Stanley Fish is professor of law
at the Cardozo School, Yeshiva University. He is the author of a new book
called Winning Arguments– What Works and What Doesn’t
Work in Politics, the Bedroom, the Classroom–
and what was the other one? The court. Oh, sorry. Sorry, winning arguments– he’s
a law professor [INAUDIBLE] courts. Winning Arguments–
What Works and What Doesn’t Work in Politics
in the Bedroom in the Court and in the Classroom And our other speaker
is Greg Lukianoff, who is the president of FIRE,
the Foundation for Individual Rights in Education. We will begin by hearing
from Greg Lukianoff. Please. [APPLAUSE] Thank you, everyone,
for having me. Really great to
be back at Brown. Very excited for this talk. And I’m going to say something
that actually might really surprise you. So this is the question
we’ve been given to answer. And I’m well known as a
defender of free speech. It’s what I went to
law school to do. It’s what I’m most known for. So you might be a
little bit surprised that my answer to this– even
though everybody on Twitter had said, obviously,
the answer is no, that free speech shouldn’t be
limited on campuses– is yes. Of course, it should be. It’s a weird question. And I think it gets to the myth
of the free speech absolutists. I’ve been doing this
for a long time. And I have never
actually met some of the characters
of freedom of speech that I sometimes hear,
some people I disagree with sometimes like
Professor Fish, present, people who actually believe
that nothing done with words can ever be illegal. That’s almost an
incoherent idea. So there are two
reasons why free speech should be limited on campuses
and two manners of doing it. I think it should
be limited according to the exceptions to the First
Amendment of the United States. Why? Not because I’m a constitutional
lawyer, but because I actually think that as far as a
body of law is concerned, as far as a continuous
body of thinking about a particular
issue, the jurisprudence around the First Amendment,
while not perfect, is the best thought out way
to maintain freedom of speech in the real world. There are exceptions, but
they’re very well thought out. They’re very pragmatic in my
opinion– not in all cases. I have some exceptions
that I think are imperfect. But I do think that when it
comes to how you actually have [INAUDIBLE]
and how you actually have free speech
in the real world, the First Amendment law can
provide a lot of guidance, not just into the legalism,
but to the philosophy. And then, of course, there
are those limitations on freedom of speech that
are necessary to protect academic freedom. Now that might sound
like a contradiction, but I’ll be explaining
it as I go on. First, I want to talk a little
bit about unprotected speech. And, again, I want
to point out I don’t just think that these
are things that are unprotected because the law says so. I actually think these are
pretty well thought out. And what we have in our
constitutional system when it comes to the First
Amendment is we have what we call a
categorical approach. What that means is we define
certain categories of speech that are either less
or– saw my friends my school– either less or
more protected or unprotected. And so, for examples
of speech that are not protected, for
example, we have true threats. There’s pretty much no
society in the history of the species
that has protected true threats in the sense
of, I’m going to kill you. That’s always been
understood to be unprotected in practically every society. Same is true for libel. You can file a libel law going
back literally centuries. You can study about
medieval theories of libel. You can study about dark ages,
Justinian theories of libel. Libel is one of the
oldest ideas in the book. I choose child pornography as a
category of unprotected speech, particularly if someone wants
to ask me about it in questions. The reason for child pornography
being unconstitutional or not being protected is the
idea that every time you depict a picture
of a real child, you are exploiting
that individual child. And that’s the rationale
in the case called Ferber, declaring that
child pornography is illegal even just to protect. Now, a lot of First
Amendment skeptics thought that, oh, this is just
an excuse that the Supreme Court has come up with. They really just disfavor
this kind of speech because it’s so horrible. They’re just making
up an excuse for it. But this was put to a test
in a case called Free Speech Coalition versus Ashcroft where
there was a law that was saying that anime, for example,
or digital presentations of children essentially that are
sexualized is unprotected, too. And the Supreme Court said no. I was actually pretty
cynical on that one. I thought the Supreme
Court was going to go for the politically more
popular opinion of saying, yeah, you can ban this as well. And the Supreme Court
said no because they said banning that would be a lot
more like banning bad thoughts. So that’s actually
an area where I think that it’s quite principled. There’s obscenity. Actually, the law
for obscenity, I’m not going to explain all
the law of obscenity. I’m definitely of the opinion
that needs some updating. I’m of the opinion
that 18-year-olds should be allowed to watch
whatever they want– or above, that is. There’s incitement. Incitement is a very
hard standard to meet, but it’s essentially
when you’re plotting to go burn down
the mayor’s office, and in addition to conspire to
burn down the mayor’s office, you yell, “hey,
let’s go burn down the mayor’s office” in
a situation when you’re likely to burn down
mayor’s office, that’s incitement– very
hard standard to meet. And then I have fighting
words with a question mark because that’s the
one that is actually one of the least– the
most malleable, the one that I think is least
principled, frankly, but also the one that’s least
likely to continue to exist. I actually think the
fighting exception word, for all
intents and purposes, does not exist anymore. Now, here’s where it
becomes really clear that there is no such thing
as the free speech absolutist. Because there are all sorts
of categories of speech that people talk about as
being unprotected speech. And I always respond
when they talk about these kind
of speeches saying, no, they’re just not
considered speech. So although I
don’t think there’s any grand theory you can have
o the First Amendment– I don’t think there should be a
grand theory for the First Amendment– there is
sort of a continuum of things that are more likely
expression of pure opinion and things that are
more like action. And the things that
are more like action– the fact that fraud is committed
using words is an excuse. You can’t make a First
Amendment argument, that if you’re ripping someone
off, that you used words and that’s why it was OK. Blackmail extortion–
your money or your life– obviously not protected. Harassment, this is something
that sometimes people list as an exception
to freedom of speech. It’s not even considered an
exception to freedom of speech. It’s considered severe
and pervasive pattern of discriminatory
behavior designed to essentially get someone
to quit school or quit a job. It’s not primarily about
the speech component. It’s about the
pattern of behavior. Now I have vandalism up here. Why do I have vandalism up here? Because I get on campuses
all the time people saying, well, someone painted a
swastika on my front door. And it’s like, um,
that’s vandalism. That also could be considered
the communication of a threat. There’s all different reasons
why that isn’t protected. So I have to actually point out
that vandalism has never been considered protected speech. And disruption, which
is a very important idea for places like Brown and
for other universities, is that you don’t have a right
to stop a class from running. You don’t have a right to
stop a play from running. You don’t have a right
to stop a speech. Simply, a university can’t
function without this. Now, the fighting
words doctrine, that’s the fighting words doctrine. And the fighting words
doctrine, I do think, is probably the
biggest hole you can punch in the idea of a
principled idea of free speech under the First Amendment. And it basically comes
from this old 1942 case in which a protester
called a cop a fascist and a damned racketeer, and
was found guilty of engaging in fighting words. And, basically, the
fighting words doctrine comes out of this really
old-fashioned macho idea that essentially if
one man says something to another man
that’s so offensive, you have every right to
punch him in the nose. Nobody really
believes this anymore. And what’s amazing is,
you do have the right to call a cop a damned
fascist and a racketeer. And if you have any doubt about
what the Supreme Court would do with that, there’s a case
called Gooding v. Wilson where a guy actually
yelled at a cop, “I will kill you, you
white son of a bitch.” And that was found
to be protected. So, as far as I’m
concerned, fighting words is a dead doctrine that people
only pay lip service to. So what is the myth? What is the thing that makes
people like me so radical? Why, when I go to Europe,
people like, oh, American law, it’s so crazy when it
comes to freedom of speech? It’s because we believe in
two strong presumptions. One is the bedrock rule. And the bedrock rule
is simply from– this is Texas v. Johnson. This is the famous
flag-burning case. We refer to as the bedrock
of all First Amendment law is that you can’t ban something
simply because it’s offensive. That’s why people like to
dismiss organizations like FIRE as free speech absolutists. They want to make our position
simplistic and primitive. But, really, what
they’re getting at is this very intelligent
idea that offensiveness, it’s too subjective. It changes from class to class. It changes from
decade to decade. It changes from group to
group, from state to state. It is too flimsy. It is too subjective to actually
make for a coherent law. And sort of a
subcategory of this is a strong presumption against
viewpoint discrimination, that essentially you can’t
ban something just because you dislike the viewpoint. That’s considered to be sort
of like the ultimate biggest sin you can commit in First
Amendment law, is saying, I allowed all these
people to talk, but, oh, you’re a
Trump supporter, or you’re a Jill
Stein supporter. You can’t talk. Everyone else can. I see this a lot on
college campuses, but I rarely see university
administrators admit to it, which is one of
the reasons why there was a case at a community college
that became one of my favorites where an administrator told
a student group that they couldn’t table for PETA
on the justification that the administrator in
charge did not like PETA. I loved it because it
was just like so direct. It wasn’t someone
making up something that gives them a kind of excuse. They’re like, I don’t
like that group. You can’t have free
speech for them. And I’m like, thank you. Thank you for being direct. This is wonderful. So usually you have to tease out
your viewpoint discrimination. So where does that leave us
when it comes to campuses? Now, between harassment
and fighting words– those are the dominant excuses
for speech codes on college campuses– there have been 53
lawsuits against campus speech codes. The campus speech
codes have never survived these challenges. They’re either
withdrawn and rewritten because the campus knows
that they will lose, or they’re defeated
in a court of law. And this is case after case. Even at my private
college, two years before I started at
Stanford, the state passed a law that bound even
private nonsectarian colleges by First Amendment standards. And Stanford speech
code was ruled in violation of the Leonard law
and, essentially, in violation of the First Amendment in 1995. So all of these theories
keep on coming up. And we keep on showing
that they are very vibrant. And this presumption of that
it can’t be banned simply because it’s offensive comes
into this all the time. And you can’t simply ban
viewpoints you dislike. Now for the academic
freedom part. I talked a little
bit about this. So academic freedom,
frankly, when it comes to what it
means in terms of poetry, it’s very compelling. What academic freedom
actually means in the law is– I’m not going to deny–
frankly, a lot more of a mess. You do end up with wonderful,
powerful statements like this. I love anything that
warns at the end that without it, otherwise
civilization will stagnate and die. I just think that’s powerful. I think that’s compelling. I’m not totally sure
what it actually means. But to put it really simply,
and to cite a book from someone you might know, I think
that some limitations on freedom of speech
make sense on the campus. And this is where some of
the disagreement between me and Stanley come from. Germaneness, for example. If you’re a physics professor,
and you spend your entire class going on about your
opinion about the election, they can discipline you. They can even potentially fire
you because you, essentially, weren’t doing your job. You have an academic
freedom to teach the class you were hired to teach. Now, I think we differ
somewhat on what the breathing room around that is. I definitely have had cases
where I saw the breathing room was bigger than Stanley. But I do think, ultimately,
when it comes germaneness, it’s a question of, is
it a one-off comment. I think that’s much too narrow. Is it 10 minutes going off on
a class when it’s unrelated? Is it half an hour? And are there classes
where, essentially, it’s all about discussion
and opinion, which I believe there are, where
essentially the topic is very, very broad? Control of the classroom, this
is an argument we get a lot. Students will write in and say,
I had an opinion in my class, and my professor said I
couldn’t raise my hand and give my opinion in my class. And we have to explain
academic freedom means that your professor
has tremendous control over the classroom environment. It won’t work if they
don’t, plain and simple. There’s also the issue
of professionalism, but what the finer points
are o professionalism are things that are
not entirely clear. But I’ll give you an example
in the last five years of a professor who was
not being professional. This got caught on video. This older, hippie
dude professor yells at his class for 15
minutes and then moons them. And I’m like, yeah, you
can get fired for that. So the last academic
freedom part– don’t say you have never been
tempted to moon your class, though. So violations of free
speech or economic freedom. Functioning of the
university is the last one. And this one’s really important. When FIRE is going after
university speech codes, when we’re saying to
universities that you have to bring your codes into
line with the Constitution, we always have to remind
them, you can always– you don’t need a policy to
say that if a student is doing a demonstration that
disrupts the functioning of the university,
that you can stop them. If it’s preventing
students from studying, if it’s preventing
classes from going on, you can always stop them. You don’t even need
a policy to say that. And so I just want to give
you some examples of the kind of cases we deal with. And I do partially to
also set the stage just for the fact that I know
there are hard cases in First Amendment law. I’m not pretending
that there aren’t There are plenty of them. But the stuff that I deal with
day to day on a college campus tends more to be on
the ridiculous side. This case, for example. I know. It’s a scary-looking book cover. But this is a book about the
defeat of the Ku Klux Klan when they marched on
Notre Dame in 1924. It celebrates the
defeat of the Klan when they marched on
Notre Dame in 1924. And when a student
was seen reading this at Indiana University, Purdue
University, Indianapolis– that’s a mouthful– he was found
guilty of racial harassment because it made one
employee uncomfortable. He wasn’t given a chance to
explain that it was actually an anti-racist book. Of course, if it had
been a racist book, it still would have
been protected, but it just made it
more ironic that he got in trouble for reading
an anti-racist book. And it took the combined
efforts of the local ACLU, FIRE, and The Wall Street Journal
to get this university to fully back down. And then there are,
of course, abuses of another exception to
the First Amendment, which is time, place, and manner law. Now, time, place, and manner
law makes perfect sense. It basically means that
you can’t restrict things on the basis of
content, but you can, for example, in one
famous case, say that you can’t have a concert
above this decibel level past this hour in
Central Park in New York. That’s something that people
who have ever lived anywhere near Central Park in New York
are probably very thankful for. And as long as it had
nothing do with the content, it was basically just about
the time, place, or manner of the speech, then you actually
are allowed greater ability to restrict it. I do think the Supreme
Court, unfortunately, has been too unclear about
what the parameters of this is, though, because you end
up with ridiculous situations like this. This is Modesto Junior College
in Modesto, California, where a student was told that
he couldn’t hand out copies of the Constitution
on Constitution Day unless he got permission
from this person to use the tiny free speech zone
several weeks into the future. She couldn’t find
space for him to be able to do his
protest– handing out the Constitution–
on Constitution Day, so maybe he do could do
it sometime in October. That’s not going to
stand up in court. Neither will this one
where at Cal Poly Pomona, a student was not
only told he had to get state permission in
order to hand out animal rights fliers, he have to
wear a badge that said he had been granted First
Amendment rights by Cal Poly Pomona in the tiny
free speech zone that he had to apply
for weeks in advance. Also not a close call. These are dozens of cases
that we’ve litigated involving free speech zones. And then there
are other examples where academic freedom and
a bad interpretation of one of the exceptions collide. This is Laura Kipnis. She’s a feminist professor
at Northwestern University. She wrote a column that
was critical of overreach in Title IX. And she was brought up on
charges for that column of violating Title IX. She was not allowed
to tell people that she was being investigated. And finally, what ended up
resolving the case was the fact that she took her case public. I find that’s very useful. And just to quickly give you
some more examples of things that are not protected in
the– the sort of softballs I actually generally deal with
on campus almost all the time, this is a professor
who decided she didn’t like someone’s pro-life
display, their protest of Roe v. Wade. They had put up a lot
of little crosses. And she told her
students that they should go exercise
their free speech rights to destroy that display. You don’t have the right to
destroy someone else’s protest. That’s not part of it. And she was actually
fired for that. She did get due process,
so I thought that was good. This is a case, actually, later
on at Dartmouth College, where it’s also a pro-life display,
where another student showed his disdain for this
pro-life display by running it over with his car. Yeah, dangerous, a bad idea,
also ironic because the guy had a “coexist” bumper sticker
on the back of his car. I’m not kidding. So, again, not protected,
and nor should it be. So limiting that in the
name of free speech. This is a case we talk
about in our new movie Can We Take a Joke? This is a guy who put on
a play with the intended goal of offending everybody. It’s an amazing case where
students and administrators got together to buy tickets
to send a lot of students to disrupt the play. And then, unsurprisingly,
it got really out of hand. And they started shouting death
threats– unprotected speech. And then, of course, there are
the disruptions of speeches all over campus. Thankfully, so far we
haven’t had one yet here. But this is one where the
guy from Metallica– and I figured they were
just going after Lars because a lot of
people don’t like Lars, but it actually had
nothing to do with him. It was a dispute somewhere
within the administration. And these are students
actually rushing the stage to shut down this display. Again, you don’t have
the right to do that. So before I let
Stanley go, I always like to give a little
bit of homework. Definitely I’d love if you were
to check out some of my writing on this topic, consider
joining FIRE’s Student Network. We have a summer conference. We’re going to really great
guest speakers this summer. Brown recently went from
having a “red light” speech code– a really bad
one– to a “yellow light” speech code. So you’re this close to being
actually one of the better schools in the country, at
least in terms of your code. And I think that you
should get to green. I think you should
go all the way. Spread the word. Check out Can We Take a Joke? You might not agree with
it, but at least it’s funny. Encourage Brown to adopt
the Chicago statement on free expression. And, most importantly–
and this is something that I think could fix so
many problems that we have with society today–
make it a lifelong habit to seek out smart people
with whom you disagree. If we followed that
one thing, I think we’d be living in a much
more bearable, much more intellectually
productive society. And I’ll leave you with this
quote and my information. Thank you so much. [APPLAUSE] Please join me in welcoming
Professor Stanley Fish. [APPLAUSE] Thank you very much. It’s a particular pleasure
to be here in my hometown. Every time I return
to Providence, I feel my heart drawn
to it more and more as I was just telling some
boyhood friends last evening at an excellent dinner. Something that I
feared might happen has happened, which
is that you have invited two speakers who
more or less agree almost on everything. In my 2014 book, Versions
of Academic Freedom from Professionalism
to Revolution, I admire a quotation
from one of Greg’s books. And he has now
returned the favor. So I’m afraid that
whatever distinction there is to be made
between us will have to be a distinction in emphasis
rather than a distinction which draws clear battle lines. Although I do have a polemical
title which presumably he might not be pleased with. And that is “Free Speech
is Not an Academic Value.” Free speech is not
an academic value. And so I’m going to tell
you what I mean by that. But before I do
that, I want to say that underlying the
debates about what is appropriate and
inappropriate on our campuses are competing views of
what a university is and what a university is for. And it’s only fair that while
you listen to me that you be aware of my views
on those two questions, what a university is and
what a university is for. And they’re not my views
in a proprietary sense. I didn’t make them
up or originate them. They begin at least
with the 10th book of Aristotle’s
Ethics, the great book The Idea of University by
Cardinal Newman, a great essay by the European
sociologist Max Weber called Science as a Vocation,
a statement by a law professor at the University
of Chicago in the 1960s, Harry Calvin; the 1915
statement of the American Association of University
Professors on academic freedom and tenure; an essay by the
French philosopher Jacques Derrida, who
described university education and academic life as,
quote, “an economy of waste.” And I think that’s just
perfect, an economy of waste. But my favorite in this
list of predecessors to which I wish to
join my own name now is Michael Oakeshott, a mid-20th
century British theorist of philosophy in politics. And in an essay, again titled
“The Idea of a University,” Oakeshott says this. “A university is a place where
the student has the opportunity of education and
conversation with teachers and fellow students, and
where the student is not encouraged to confuse education
with training for a profession, or to confuse education with
learning the tricks of a trade, or with preparation for future
particular service in society, or with the
acquisition of a kind of moral and intellectual
outfit to see him through life.” These are not the
purposes of a university, according to Oakeshott. Instead, he says, “a
university has something else to offer the undergraduate.” And that is what he calls
the gift of an interval, that is a time between. “Here is an opportunity,”
says Oakeshott, “to put aside the
allegiances of youth without the necessity of at once
acquiring new loyalties to take their place. Here is a break”– I am still
reading from his essay– “in the tyrannical cause
of irreparable events”– that is of events that once
taken then predict the future in some way– “that
is inevitable. Here is a period in which
to look around the world and upon oneself without the
sense of an enemy at one’s back and without the
insistent pressure to make up one’s mind.” That’s what he sees
the university as. He sees it, in effect, as what
has been sometimes derisively called an ivory tower. But that’s what I believe the
university is and should be, an ivory tower. And that’s the only
definition that I would approve of the
phrase so much bruited about today of safe spaces. The university is a safe
space in the sense defined by Oakeshott, that is it’s
a safe space insulated from the pressures of
the world where you have to make decisions and take
courses of action that may, in fact, be your irrevocable. The university allows you
something else, the leisure of contemplation, of turning
a variety of topics one way and then another way. And Oakeshott then
concludes his essay with the following statement. “A university,
like anything else, has a place in the society
to which it belongs, but that place is
not the function of contributing to some
other kind of activity in the society, but of being
itself and not another thing.” And what this means is
that the university has its own values, which
are, I think, the values of scholarly deliberation in the
course of the search for truth, and should not be tied
as a secondary appendage to other values, even worthy
values like freedom of speech. Now I would add to his, that
is Oakeshott’s eloquent words, my own much less resonant
version of what he said. The idea that academics
are free and perhaps even obligated to use their
classrooms and their positions to further the political views
they think right and good can only emerge
if there has first been a determination that
professors are not employees, but are rather freestanding in
public intellectuals who just happen to occupy an office in
a university that just happens to pay their salary. There are a lot of academics
who actually believe that. Once this seductive, but
bizarre notion is in place, the way is open to regarding
one’s professional obligations as inconveniences, as hindrances
to the real obligation of standing up for
truth and justice. One of the worst ideas to come
down the pike in recent years in education goes under
the slogan teaching for social justice. No, no, you teach to teach. You don’t teach
for social justice. It’s a debasement both of
teaching and of social justice. So now standing up
for truth and justice is, of course, a
good thing to do, but it is not an
academic good thing to do because it is
not part of the job description of academics. The moment academic work
is made instrumental to some other supposedly
more noble project, like the furthering
of freedom of speech, and the moment academic freedom
is understood as the freedom to pursue that noble
project, the academy has become an appendage
to something else and is nothing in and of itself. The best statement of this
that I’ve ever seen in action was something said by the
provost at the University of Wisconsin just before
the United States invaded Iraq in 2003. Many students at the
University of Wisconsin were demonstrating in
front of the building in which the provost’s
office was housed. And he came out. And, of course, they
were demonstrating. And what they wanted
the university to do was to take a position
against the impending war. The provost came out and
said only the following. The University of Wisconsin
does not have a foreign policy. And that is absolutely
letter perfect. Neither does it have
an agricultural policy or an aesthetic policy
or a sports policy. It’s not a Red Sox university. So it does not have
a foreign policy. Now, unfortunately, many
people in the university, including administrators,
don’t quite see this point. And one of them who
doesn’t see this point is your president,
President Paxson, who, in a September 5 op-ed
in the Washington Post, said the following. “Freedom of expression
is an essential component of academic freedom.” Freedom of expression is
an essential component of academic freedom. That is false for reasons that
I will give you in a moment, although it is the same
falsehood being [INAUDIBLE] by 150 professors
at the University of Chicago, several of
them old friends of mine, who are reacting
against a letter sent by the dean of students of
the University of Chicago saying that we don’t
offer safe spaces or trigger warnings
here, and we’re not on the lookout for
microaggressions, et cetera, et cetera. 150 of this dean of
student’s colleagues were alarmed and wrote a
letter in which they said, quote, “the right to
speak up and to make demands is at the very
heart of academic freedom.” Those people don’t know
the slightest thing about academic freedom. In effect, they don’t know
what they’re talking about. Now, what’s going on? The reason that I say this
is because academic freedom is one thing. And freedom of expression–
a noble idea absolutely necessary to the functioning
and building of democracies– freedom of expression
is quite another thing. Freedom of expression is
a political ideal strongly related to other ideals
like equality of treatment, equality of access, and
a democracy of opinions and viewpoints, a democracy such
that a government– and this is something that Greg
has already said– such that a government must respect
democracy of opinions and views by not picking and choosing
between the voices that are to be heard
or the voices that are to be applauded or derided. That’s freedom of
speech in a democracy. But academic freedom
is the freedom to engage in the academic job,
which, as I’ve already said, is the search for truth or
the advancement of knowledge. And performing that
job demands the kind of judgments and
exclusions of speech the First Amendment prohibits. You cannot have a university
without having an entire structure of exclusions in the
context of which lots of speech is declared unworthy speech
both by professors and, as Greg acknowledged in his
talk, speech by students. Freedom of speech,
in other words, is a right citizens have
against a government that would censor or silence
or exclude their voices. The idea is, as I’ve already
said, that is in a democracy, as opposed to a
dictatorship or a theocracy, all voices have an
equal right to be heard, and the state should
not be in the business of picking and choosing the
ones that it likes or dislikes. But this is not the
case in the academy where the only voices that
have a right to be heard are the voices deemed worthy
by professional gatekeepers, by departments, by
deans, by provosts, by editors of learned
journals, and an army of others so that being silenced in
the academy, whether you’re a student or a
professor, doesn’t mean that some freedom of
yours has been compromised. It means that you
haven’t made it and that the academy in the form
of a department or a college or university has decided
that your voice is not one worth listening to. That’s what the business
of universities is. It’s an absolute
business of– it’s the business of excluding
voices and raising to a position of
prominence those voices that have been
vetted in a variety of appropriate academic ways. So rather than it being the
case that you have a right to be heard by virtue of being
a citizen in the academic world, you have a right to be heard
only when what you have to say has already been
approved, has been sliced and diced by many hands. So that it is less, that is
the college or university, is less democratic than it
is Darwinian– the survival, if not of the
fittest, then those who are still standing after
all the votes have been taken. In short, universities
and colleges are neither in the
democracy business nor in the free speech business. This does not mean that
democratic imperatives are entirely ignored
or that there is no place for free
expression in the academy, but that only when these
concerns do appear, they appear under the aegis
of, and with the permission of, the academy’s
informing purpose, it’s raison d’etre, that
is the search for truth and the advancement
of knowledge. There’s a whole host of cases
that support what I have just said, but I will
only mention one, a famous case called Tinker v.
Des Moines in 1969, obviously the era of the Vietnam War. And in that case, students
who had worn black armbands to class– these high
school students who had worn black
armbands to class– were disciplined
by the high school. The case went to
the Supreme Court, and the Supreme Court
made two statements. The first statement
is students do not shed their constitutional
rights of freedom of speech at the schoolhouse door, which
sounds as if the students are going to win. But what the court
giveth, the court often taketh away in
the next sentence. And here’s the next sentence. Student speech can be
curtailed or disciplined when it materially and
substantially disrupts the work and discipline
of the school, a point that Greg,
again, has already made. Students then have only
the free expression rights that are consistent
with the flourishing of the academic enterprise. And given the nature
of that enterprise, I will say flatly that students
have no academic freedom rights at all, none at all. Academic freedom,
properly defined, is the freedom to
do the academic job. And the qualifications
to do the job are earned in the course
of study and training that culminates in the
receiving of an advanced degree. In short, in order to
do the academic job, you have to have
the credentials, and students do
not yet have them. They are at best– that is when
they are working hard at it– apprentices and not
practitioners of the art. And as apprentices,
they have no right to participate in the shaping of
their own scene of instruction, no right to complain that
the professor has not included the right
text in this course or is teaching the
wrong course to him or is calling on
the wrong students. Now it is true,
although I think unwise, that many colleges and
universities have chosen to give students a
place at the table and put them on all
kinds of committees. This is a bad idea. No good will ever come of it. No good will ever come of it. It’s almost a bad idea as
student evaluations, which is absolutely the worst
idea that has ever surfaced in higher education. Now the rationale behind
my position on this point was firmly provided by
the American Association of University Professors
in its 1915 statement on academic freedom
where it said that “in matters of
discipline and judgment, one must put decisions in
the hand of the profession’s members. Decisions about what
to do and how to do it, and whether it’s
being done properly, cannot be made by bodies
not composed of members of the academic
profession,” unquote. These decisions,
of course, include, but are not limited to,
hiring, promotion, curriculum, and discipline. And the 1915 statement
goes on to say that “it would be
unsuitable to the dignity of a great profession if the
responsibility for making such decision were deeded
to external constituencies. The profession has to
have control”– again, Greg made this point,
somewhat less dramatically– “the profession has to have
control of its procedures and machinery, for
if it does not, it has ceased to be an entity
with its own integrity and has instead become the instrument of
goals foreign to its informing imperatives.” I have no doubt that the authors
of the 1915 AAUP statement, who included giants
like John Dewey, would be amazed to read the
list of demands presented last year to the president
of Oberlin College by a group of Oberlin students. This is an amazing document. And every time I look at it, I
am more and more amazed by it. And I’ll just read–
it’s 18 pages long– but I’ll just read to you a
few highlights or lowlights. We demand– demand
is the big word– we demand a more
inclusive audition process in our
conservatory department that does not privilege Western
European theoretical knowledge. In other words, this is a
kind of anti-canon argument, a little late in the day,
but still recognizable. We demand direct
involvement in the process of hiring the new–
and transparency, rather- in the process of
hiring the new Oberlin College president. Let me tell you as someone who
has been on presidential search committees and has been
a candidate– always unsuccessful– for university
presidencies that transparency is the very last
word you would ever associate with that process. I don’t know if
Donald Trump is right when he says that
everything is rigged, but I know that I’m
right when I say that every single senior
administrative search in colleges and
universities is rigged. And if I had time, I could
actually defend that. I don’t think its
such a bad idea. We demand a structural change
in institutional graduation requirements is another one. We demand that a mandatory
professional development program be developed for
faculty across departments in the college that will
help facilitate faculty’s understandings of the ways
in which radical capitalism, settler colonialism, and other
forms of violent oppression inform and shape
instructional methods for the disciplinary
contents of their course. In short, we demand a certain
kind of political training before we are going
to let people stand up and teach in our classrooms. Just a couple of more–
you already, of course, have the flavor of this. But it’s so delicious, in a way. We demand the renaming of
these four academic buildings, followed by we demand the hiring
and promotion of these eight faculty members,
followed by we demand the firing of an equal
number of faculty members. That’s this document, which
ends by saying these are not requests, these are demands. Boy, duh. Big surprise. So it hardly need
be said that these are demands that would turn
upside down the structure of university governance by
giving over the university’s resources to the implementation
of student political aims. In the long history of
the academy’s struggle to maintain its independence in
the face of hostile incursion, the invaders of the
citadel have usually been situated on the outside–
the church in the 19th century, trustees at the beginning
of the 20th century, industries that wanted to bend
the academy to their mercantile purposes, donors and
founders, state legislators, ambitious governors, and
crusading senators like Joseph McCarthy. But now, in 2016,
the invading force, the force invading
and performing a takeover attempt
at the university, is made up of students,
who, like their predecessors in the 1960s, are ready
to mount the barricades and plant their flags. However, there is a difference,
and an important one, between student insurgents
either of the ’60s or of the present
day and others who want to make the groves of
academe bear alien fruit. Those others, for the most
part, are after power– I know that’s what’s
on the next page if I can only turn the
next page– seek only to wield power. Students, and this is
all to their credit, seek virtue and the
improvement of the world. I mean, that’s a nice idea. Has nothing to do
with the academy. But it it’s better
than the desire to take over the
university so that it can serve the favored
industries of the state. Now you can see this
ambition, the ambition to seek virtue and
improve the world, on the first pages of
the Oberlin demands where we are told that
the college, quote, “functions on the
premises of imperialism, white supremacy,
capitalism, ableism, sic and cis sexist
heteropatriarchy,” unquote. Obviously, these ills are
not academic-specific. They infect the
entire body politic. And their removal, even
in a small institution, would require a Herculean effort
that would leave little time or room to do anything else,
for example little time or room to teach Byzantine art. Any response to
these demands must begin by returning to the
question with which I began. What is a college
or university for? And I have already
more than twice noted that the purpose
of the university is the pursuit and
advancement of knowledge in the various
fields represented by departments and colleges. But informing the
Oberlin demands– and they are demands being
made on other colleges, too, notably recently Amherst–
informing the Oberlin demands is quite another and
arguably more noble purpose, the perfection of
the world, not merely of the little world of an
individual campus or even of the larger world of a
state university system, but the greater world of which
each institution of higher learning is in some
sense a microcosm. The idea behind these
demands– and it is a thrilling
idea even though I think it’s entirely
inappropriate– the idea behind these demands is
that we can identify and remedy the injustices that
structure our society often at a level too deep for casual
notice, i.e., microaggressions. What we can do is provide a
model for the institutions, including the
institutions of government and the system of justice. We can send out into the
world by our protests and our demands what I would
call a virtuous disease in the hope that it
will spread and redeem our mortal condition. And this is the last point. I have fallen in
my last statement, as you may have noticed,
into a theological vocabulary because the vision underline
the students’ demands is, although they would perhaps
resist my saying it, religious in nature. It is messianic, in part,
and certainly perfectionist in spirit in the sense
that what is envisioned is the progressive elimination
of wrongs, injustices, discriminations, and
invidious distinctions until we all stand
on even ground and are allowed to
realize our true natures and attain our most
cherished goals. Perfectionists, or
perfectionist progressivists, do not believe in original sin. That’s their problem
from my point of view. They don’t believe
in original sin. And they hold rather
to an optimistic view of the human potential,
and are in search of the political
methods that will liberate rather than
shackle naturally benign human energies. This is just kind of Rousseau
updated, as some of you have recognized. Perfectionism/progressivism
could possibly flourish on either side
of the political aisle. But as many have
pointed out before me, its natural home seems
to be on the left. And here is a political theorist
named Joseph Tolman making that point. The left proclaims the essential
goodness and the perfectibility of human nature. And here is a conservative,
William Vogel, editor of the
conservative journal The Claremont Review,
making the same point, agreeing with Tolman. Liberals, he says,
believe in progress because they believe
in a virtual circle. As a society becomes
more free, it progresses. And as it progresses,
it becomes more free. The natural movement of
history unless stymied by reactionary enemies is
from less freedom to more. Conservatives, on
the other hand, do believe in original sin. Conservatives, and I
am citing Vogel again, believe that they see little
basis for the conviction that progress will reveal
humans to possess unfulfilled capacities for reason,
freedom, and love. Instead, and I am
still quoting Vogel, conservatives believe that it
is wise to take our bearings from the abundant
historical evidence that human nature reveals
astounding capacities for savagery,
hatred, and idiocy. Therefore, while liberals
want to make the world, and I am still reading Vogel,
want to make the world a better place, conservatives
want to keep it from becoming even worse. Now the word that Vogel uses
when he talks about this– and I agree with that word–
is that the constant work of maintaining civilization. He’s in interested
in the constant work of maintaining
civilization, which is quite different from the
radical work of perfecting civilization. By that, he means–
and I agree with him– that in the absence of a
view of history as something with an internal logic in
the direction of the Good, with a capital G, we
had better take care to maintain the
institutional arrangements that in the course
of a history that has no teleology but only
events we have been lucky enough to hit on. That is we should
take care of what we have in some fortunate way
managed to stumble on and keep it going. I believe that the liberal
arts college, represented in its best form by Wesleyan,
Amherst, Oberlin, Brown, is one of those institutional
arrangements that should be maintained or
preserved rather than perfected because if you try to perfect
it, you’re going to ruin it. I believe that because the
schemes of perfection given to us in the statements
of the student protesters all have the fatal defect
of turning the college or university into a
vehicle for the realization of a political idea
and a political ideal, the ideal of equal freedom
of all people in a world untainted by injustice
and discrimination. I do not quarrel
with that ideal. I quarrel only
with the assumption that it is the college
or university’s position or obligation to implement it. Not only do colleges
and universities have their own job– and for
the fourth or fifth time, to inquire into
the truth of things and to do so in a way that
leads to understanding rather than to political action– but
if colleges and universities allow their energies
and resources to be put in the service of other jobs,
no matter how worthy, they will lose their
distinctiveness, and they will lose any rationale
for their existence. After all, if the
academic life is just an extension of
politics, why not just dispense with all
the scholarly apparatus and get right down
to the business of canvassing for votes and
securing political power? Perfectionist progressivism
is the enemy of what we have. And given what we
have here at Brown and elsewhere is a
precarious achievement, it behooves us to hang on to
it even if in the eyes of many the liberal arts model
is outdated, reactionary, and museum-like. It is sometimes say that
post-modernist or deconstructed views of human
actions, untethered to any foundational truth,
are a recipe for relativism and nihilism. If there’s nothing holding
everything up or holding everything together,
we can do whatever we like without fearing
any ultimate consequences. But the reverse is true. If there is nothing holding
everything up or together, we cannot rely on time and
history to preserve and protect those things we cherish. And to use a phrase of John
Milton’s, would not willingly let die. If you like something, a way
of life, a mode of being, a practice that captures
you to the extent of being indistinguishable from you,
then you had better work hard to ensure that it will
still be around for you and for those who
come after you who want to live that kind
of life and not another. In a non-foundational world,
no abiding fundamental truth is going to save us
or save what we love. We have to do it
ourselves, which means doing it in
a constant battle with those, including now
students, who would take it away from us and who would
appropriate and occupy– not a verb casually chosen–
the structures that house and enable the distinctive
activity that goes by the name liberal arts education. My entire message
is here, as it has been for years, that the liberal
arts activity is distinctive, and that its distinctiveness
can only be maintained by hewing a narrow
path and by resisting the siren song of
political efficacy and the pursuit
of worldly virtue. Thank you. [APPLAUSE] As the organizer of
this event, I just have to start off by
saying a confession, that I did not anticipate
that Stanley Fish would outflank the president
of FIRE from the right, but there it was. So we’re going to turn
now to our discussion part of the event, which is,
for us, traditionally the most important part of the event. I just want to
remind you that we write the prompt, we write
the question, “Should free speech be limited
on college campuses?” merely as a prompt for you. We also invite guests to
speak and share ideas with you merely as a prompt to you. It’s up to you to talk out
things you want to talk about. We have long had a
prize many of you know that we give at Janus
events called the hardball question prize. Many of you have
seen the trophy. It’s a small trophy with
a baseball on the top. And the hardball
question prize is given to the student
or a faculty member who asks the question that best
disrupts the premises of one or both of the speakers. I’m not sure I’ve
been at a Janus event where we’ve been more in
need, perhaps, of a student or a series of students
to ask hardball questions in that kind of nature. So we’re going to begin the
question and answer period now. There are microphones. If you don’t mind
going to a microphone, we’d really appreciate that. We want to be recording
this for our website. There’s a microphone over here. And this one over here. If you have questions,
would you be willing to go to the microphone? Would you rather do
it from your seats? No, no, don’t let them
do it from their seats. OK, please. [LAUGHTER] Give them an inch. Go to the microphones. [INTERPOSING VOICES] [INAUDIBLE] What I’ve understood
from both of the speakers is that there’s
something special about the academic world. And it’s a carved out space. Can’t hear you. Yeah, gotta speak up a little. Oh, is the microphone on? Hey, is that on? What I’ve– Oh, there you go. OK. Make love to it. Don’t make love to it. [INTERPOSING VOICES] What I picked up
from both speakers was that there’s a special
status to the academic space, that the restrictions we
think emerge from free speech don’t apply there. And I get that. And I’m not going to
argue with that at all. My only question is,
what was not clear to me from both speakers was,
is that something that’s unique to academic space? Because what I got from two very
different styles of argument is that there’s good reasons for
seeing academic space this way. But I can imagine that somebody
from a different metier or a different kind
of social space can make a similarly compelling
argument about that space, and somebody else from
another one and another one. And that naturally leads me
to two questions, which is, will we be left with anything? Do we need to actually, rather
than designate the exceptions, do we need a designated space
for something like the First Amendment? And are we not in
danger of everybody self-declaring their
own professional or social or affective
circles as being the exception to free speech? Thank you. Hello? Oh, there we go. OK, so, yeah, that
was really fun. I always love hearing Stanley
give a talk because he always goes right
to fundamentals and hopefully pissed off
some of you in some way. I enjoy it so much it
doesn’t anger me anymore. But when it comes to my overall
larger theory of free speech, that is a point of disagreement
between me and Stanley. But it’s essentially I do
see academic freedom as more or less the smaller Boolean
circle in this bigger idea of what Jonathan Rauch
calls liberal science. And liberal science
is this idea that he says you have several
liberal systems coming out of the Enlightenment,
essentially. And there’s one that
we haven’t named. You have, basically,
capitalism; you have democracy; all anarchical
systems, essentially. But one system that was so
successful we didn’t even give it a name. And he calls it small
L liberal science. And the idea of it
is that there are two rules– that you don’t
get to claim special authority to completely end an argument. You can claim social
authority in the sense that you know something about
it, but that isn’t dispositive. That doesn’t completely end it. And that no argument
is ever really over. And this includes the idea
of this really radical change in thinking about the way
we deal with dissenters. Because for most of
human history, the way you deal with dissenters is
chop off their heads, burn them. The last thing you do is
actually listen to them. And so I think that for my
overall philosophy on this is I do see the big Boolean
circle as liberal science. And I think a lot
of systems benefit from dissent, from feedback,
from systems that actually allow them to not calcify. And I’m actually of two minds
about the ivory tower approach because I think,
actually, the academy is oftentimes at its worst
when it’s at its most detached from reality. To me, oftentimes
the academies is at its best when it
has to actually present its ideas to regular
non-academic people and have them not laugh at them. It can’t be done. So, in a way, I do actually
think that Stanley actually– but he lives this, though. I think the fact that he
writes for popular audiences. I think that a lot
of times you’re able to get away with such
incredible academic– this is a small example–
you’re able to get away with such academic chicanery
if you’re in a narrow field and you’re able to
write in academese. And we’re discovering
over and over again that this is really happening,
that people are actually submitting jibberish articles. And they’re only
discovered years later when the person goes, by
the way, that was actually jibberish. You published it. Nobody said anything. Meanwhile, I do
think that ideas do get better when they are brought
in front of larger audiences. So I think that
sometimes the person who’s a popularizer,
which is very looked down upon a lot of
times in academica, has to have a
better understanding of the idea than the
expert in some cases and certainly for lawyers. If you can’t understand
what a lawyer is saying, they’re probably not
a very good lawyer. Thank you. Thank you. Stanley, do you want to
respond just very briefly? Yeah, I wanted to
answer the first part. Has he disappeared? No, he just sat down. I wanted to answer the
first part of your question and agree with its premise. I think the academic
space is not the only space about
which the kinds of things that both Greg and I
said could be said. You could easily imagine in
the middle of an operation if the nurse decided
this was the time to lobby for better working
conditions or a raise in salary. That same kind of
[? invocation ?] of disturbing the central
business of the enterprise would be raised. In fact, there’s a series of
cases, which I know Greg knows, that make up constitutional
law on this point. It’s a series of cases in
which the court distinguishes between one’s
rights as a citizen and one’s rights as an
employee or as a functionary in some institution
or industry, including the industry of
higher education. These cases are Pickering
versus Moore, Connick v. Myers, Urofsky v. Gilmore,
Garcetti v. Ceballos– No Waters? Yeah, there are others, but
those are the [INAUDIBLE]. And the distinction is made,
although some legal theorists have pointed out it’s
a difficult distinction to pin down. The distinction is made
between whether or not you are operating as a
citizen and therefore exercising your rights in
a democratic, your rights for free expression in
a democratic society, or whether you’re
operating as a member of an institution or a business
or some kind of enterprise. And so the force of
what you’re saying is merely internal
to some quarrel that you’re having with
your employer or one of your colleagues. But there are an
number of contexts in which could be made. So as long as there
is some connection between the industry
and the government because one must always
remember that the First Amendment prohibits the
government from interfering with the freedom of expression. Thank you. That’s not to be
[INAUDIBLE] association. Thank you. So I’m going to go
back to the questions. And I’m probably going to
have, after each question, I’ll invite one of the speakers
to reply rather than both. I want to get in as many
questions as we can. Please. This is to Professor
Stanley Fish. I will try to keep my
question to a question and also to the
realm of academia rather than my own
beliefs, and actually draw from Professor Tomasi’s class. We read an essay by, I
believe, Michael Polanyi, “The Republic of Science.” And your idea is that
students should not be able to express
their opinions and rather receive
it from– well, have it passed down
from the academics and maintain the
preservation of knowledge. And Polanyi points out that
central to the preservation and continuation of
knowledge is not just passing down the tradition,
but a sort of irreverence for the tradition at the
same time, an introduction of fresh ideas and fresh minds. And likewise this
is true in basically all biological systems where
new ideas and new genes must be introduced into
the environment for greater fitness. So I guess my question
to you is, why do you believe that students
should not be able to bring in their own ideas
if they’re irreverent– well, I mean, any ideas? Well, I didn’t say
students shouldn’t express their own views. They should express
their own theories when they are invited to
do so by an instructor. And then the instructor
can then say, well, that’s very interesting. Let’s explore it. Or, OK, and say something more
like, that’s beside the point. Let’s go on. That’s the whole
structure of the thing. That’s the whole–
in other words, students have a right
to their opinions so long as the instructor
deems that the voicing of their opinions
is at the moment helpful to the
pedagogical enterprise. And that’s it. Now any general theory– and
I’m a big fan of Polanyi’s– any general theory on the order
of your report of Polanyi– or even something
worse, Paulo Friere, who should have never
been read by anyone– any general theory of that kind
seems to me to be like blowing so much philosophical and
theoretical smoke and has nothing to do with what
goes on in classes. Now professors are always
standing up at a certain point and declaring how much they
learn from their students. Most of them lie. Brian, briefly, Bishop. Right. Most of the cases, especially
that Stanley brought up, had to do more with direct
instruction or classwork. I think many of the
conflicts that arise are out of a kind of the
social milieu of the university where often the question
is, is that part of the academic enterprise? And if one views
students as apprentices, which is within
Stanley’s description, I would say that we always,
the concept of apprenticeship, did include that,
that larger space. That, potentially, is
a challenge to Greg because if the
powers that be decide that certain forms of
expression would harm that other time, that
space of the apprentices, then it ought to be within the
purview of the institution, in loco parentis, or as
the institution to limit those for– that would– might
still be pedagogical reasons. Thank you. Greg, do you want
to answer that one? Yeah, totally interesting. And one thing that
probably some of the cases that me and Stanley
disagree the most on are ones that are called by the
AAUP extramural speech cases or intramural speech cases. That’s a fancy way of
saying a professor talking on CNN sometimes about an area
outside of his or her area of expertise. And intramural, which is someone
saying inside the institution, hey, our president is
a terrible president. And I am actually very strong
on intramural and extramural speech. Now when it comes
to restrictions on– And I’m not. He’s not. And when it comes
to student speech, definitely in the
context of the classroom, Stanley and I don’t
really disagree. In the context of
outside of the classroom, that’s where we
start to disagree because a lot of our
cases are students getting in trouble for speech codes. And it can be in the
interaction at a party. It can be interaction
and someone– [INAUDIBLE] –someone could be writing
something on Facebook. And the problem with
establishing this kind of idea that you’re not allowed
to say that even when you– it’s
kind of likenable to the idea of this idea
of speaking as citizen, that essentially you
do have this sphere in which you are presumed to
have some amount of autonomy. And as soon as
you say you’re not allowed to have that
opinion, even when you’re outside of class,
even when you’re off campus, even when you’re on
Facebook, that brings up the potential of
establishing orthodoxy as part of other things
that universities have to be very
careful to avoid, partially to allow for
this environment that allows for dissent,
which I do, actually. I’m much more on the side of–
whether professors know it or not, they do– they may
be afraid– they may not see how their
students can sometimes refresh their
thinking about things or– because I think it probably
happens so glacially over such a long period of time. But I do think it’s
a give and take. Just very briefly,
Stanley, do you want to say something on that? I agree with most of that. OK, thank you. We’ll go on this side, please. Oh, yes, you. All right. OK. I have a question
for Professor Fish. So in your talk,
you said that you regard the academic freedom and
freedom of speech different. I was wondering how different
they are from each other because it seems to me that you
cannot have any proper academic freedom without the
freedom of speech. So if a society is
rightly ruled or dominated by some form of ideology,
then the academic freedom are, in most cases,
compromised as well. –not working or is working? Now working? OK. I would here quote–
not from memory, I’m afraid– Kant’s essay
“What Is Enlightenment?” And in that essay, he
makes the distinction between the way in which
people discuss matters in public intellectual forums,
what we might call today acting as public
intellectuals, and the way in which– and he points out
that that kind of freedom can and is exercised–
and he was speaking about the Constitution of
the government under which he lived– can, in
fact, be exercised even if the government itself
in its administrative and political actions is
authoritative and despotic. So I want to say
that it’s possible for there to be what I’ve
called and others have called an ivory tower, what Aristotle
calls a space of contemplation. I think that it’s possible
for there to be such a space and for it to follow
its own rules even if the society in
which it exists is authoritarian and
disallows forms of speech in its political life. Again, remember, freedom
of inquiry– in fact, I shouldn’t say that–
freedom of academic inquiry, because I always have to
understand that academic means something. The way to go wrong in
thinking about academic freedom is to forget about the
adjective academic. And that’s what usually happens
when figures on the left begin to tinker with the
idea of academic freedom. They forget the
adjective academic, and they become more and
more and more enamored, as if they were Mel Gibson in
the last scene of a very bad movie, with the word freedom. I wish that the word freedom
weren’t part of the phrase because it confuses things. It’s the freedom to do
the academic job which requires judgments and
exclusions of speech produced both by faculty and students. Thank you. And there’s no good yield out
of confusing freedom of inquiry and freedom of speech. Thanks so much. Please. Yeah, so my question’s
for both speakers. It stems out of a part
of Greg’s presentation. So you start out
by saying there’s all these things the First
Amendment does not support, for instance. So my question is, by
not supporting something, do you mean not
tolerating it as well? And I guess with that,
both of your points obviously is that an academic
institution shouldn’t support one viewpoint, for instance. Right. So where are the
limits, for instance, of what an academic
institution should tolerate in terms of
students exercising that freedom of speech? And I think something that– Can you ask that question again? Yeah, so I’m trying to
phrase it concisely, I guess. So, an academic
institution shouldn’t support a certain
viewpoint, but what are the limits to what it
should tolerate in terms of freedom of speech, I guess? And I think if I could
cite a certain instance, I’m thinking of that incident
that happened at Yale last year with the Halloween
costumes that were deemed racist and offensive. So what would your viewpoints
be on that, for instance? And I’m going to
ask you, since we’re getting people
lining up to speak, to reply very
briefly if you could. Sure. I thought I answered
it in my presentation, but what I was trying to say in
it was that I do think actually the First Amendment provides
some really good guidelines. And definitely you can
have different rules. And certainly harassment
isn’t protected. Certainly– I gave the list of
things that aren’t protected. And I think it’s perfectly fine
for universities to ban that. And also, so I think that
the First Amendment provides actually a very
good model for what should be unprotected speech. I also think that
those protections that defend the ability
of teachers to teach and academics to study,
et cetera, et cetera. But I do think that as soon as
its offensiveness– and that’s what I was talking about with
the bedrock principle– as soon as its offensiveness, it’s
too culturally loaded, it’s too individual,
it’s too slippery. And it ends up creating
a situation where you’ll very quickly end up in
absurd situations like some of the cases I was
showing where people are claiming
offensive at anything that they politically dislike. So I think that
offense is a bad one. Now, you can have patterns
of behavior, like harassment, for example. But the situation at Yale
where Erika Christakis said, actually, “Are we
their parents?” doesn’t come anywhere
close to rising to the level of harassment. Stanley, do you want
to reply very briefly? I would agree with that. I would only add that outside of
the classroom, in what is quite correctly called extracurricular
context, the production of speech and
responses to speech is a matter of what I’ve
sometimes called show business, but I would more
appropriately call– it’s the object of
managerial wisdom exercised by an administration. Administrations
have to know what to do when speech-informed
ruckuses erupt on their campus. They must know how to step
in and when not to step in. And they cannot think their
way through a paper bag. Almost no university
administration has the slightest idea of what
it’s doing in these areas. Thank you. [INAUDIBLE] Please. Hi, my name’s Lauren Galvan. I was a student here. I just graduated in May. Now I’m working here. But, Stanley, you so eloquently
described in your speech why I am a conservative
and why I’m also Catholic. But that’s not my question. My question is, well, you
described in your speech the idea of the
university that makes me think of this question. Is university for everyone? And should everyone
go to college? I think that everyone who
has a desire to go to college should go to college. And then I think that a
state has an obligation to make it possible for
as many who wish to go to college to go to college. And, by the way, I am
Jewish, not Catholic. And I’m a slightly
left-of-center Democrat. Let’s go on to the– let
me take the next question. Please, Dan. The distinction
of extracurricular versus classroom space was made. And I was wondering if
a lot of the tensions between the academic project of
the university with these sort of political motives,
et cetera, are exaggerated as the
role of the university has taken on much more sort of
residential responsibilities for its student body. And if either of you guys
had thoughts about that. Very simply, it is
true that if none of these extracurricular
contexts were around, the core business of what I
think of as the university or college could
still be performed. But if you have
them, if you have these extracurricular
activities, then you are
beholden– and I think Greg would agree- to First
Amendment imperatives, especially in the imperative
of not picking and choosing between the kinds of
voices or organizations that can have a place in the
extracurricular landscape. Yeah. And I think we really are seeing
sort of profound societal shift that’s partially technological,
but also cultural, that essentially a lot of
things that nobody would even have heard you say can now
be heard by a billion people just by an angry Twitter mob
sending out to everybody. So suddenly, whereas once we had
a strong idea of not everything being everybody’s
business, everything is everybody’s business now. And universities are so
obsessed with their image, and sometimes really
foolishly, you end up in these controversies
that would have just been an off-handed
joke that someone made to a friend becoming these major
PR nightmares that universities then sometimes act very
foolishly in response to. But they’re also being
forced to by the fact that, basically, privacy
has virtually vanished. You can find yourself
at the center– you can find yourself the most
hated person in America one day by accident these days. And that’s just something
really has changed in the last 10 or 15 years
that present problems that, frankly, we’ve just
never really seen before. Thank you. Please. Thank you. I just had a question about,
as the campus free speech pendulum swings the
other way, and I wanted to hear a comment from
Greg about the criminalization of the heckler’s veto. That could have
a chilling effect that’s unintended on dissent. Yeah, I don’t know if the– Can you describe what
the heckler’s veto is? Oh, do you want me–
or Greg could probably describe it better. It’s just preventing
someone from speaking by speaking over them,
preventing them from conveying. And there was a– No, no, it’s more
preventing speech because you fear what the
reaction or response to it is going to be. So the heckler, even,
imagine, gets a veto. Right. Yes, and in
Minnesota, I believe, there was a prosecution
because individuals prevented a planned speech from
going on, and they were actually prosecuted. And I was just
wondering your opinion on the potential chilling
effects of criminal prosecution of the heckler’s veto. It has to be– you have
to structure it right, but ultimately if
what you are doing is you’re goal is to prevent
someone from speaking from a crowd who wants
to hear that person, I’m not on your side. You’re a mob censor. And that’s basically
one thing that we’ve had to explain over and over again. We’ve had incidents where people
we’ve defended in one case have come to FIRE saying, well,
we exercised our free speech rights by chasing the
speaker off campus. And we’re like, no, no, no. No, no, no, no. We’re not on your side on that. And this goes to
the functioning. Now, can I imagine some of these
laws being structured stupidly? Absolutely. So I’d have to look at the
individual Minnesota law. But ultimately
something that allows people to be able
to make their point and give talks to the people
who actually want to hear it, I’m supportive of it. But, again, this sets up
situations in which university administrations have to
know in advance what to do when certain events arise. In order to know that,
they have to become smart and savvy about, let’s
say, the function of crowds and other
matters of which they are woefully ignorant. And then they will run to
the university’s office of legal counsel,
which is usually ignorant in another direction. Thank you. Please. So my question is mostly for
Professor Fish, but for both, really, since you were sort
of arguing the same thing. There wasn’t too much
debate actually happening. I want to hear what your
thoughts on the quote, “when you’re accustomed
to privilege, equality can feel like oppression.” Because what it seems to me
is that today you weren’t arguing for free speech. You were arguing for
a freedom for you to speak without
being criticized. Students on campus
that are often attacked for causing the
death of free speech, they’re not trying to
limit your free speech. They are trying to have their
voices heard in the same way that your voices and voices
that are similar to yours have been heard for so long. Well, their voice on
the university campus– their voices and my
voices are not the same. They’re just not the same. Why not? Because I’m there in a
position of expertise. And if I don’t, in
fact, perform that way, that is a legitimate
complaint that students– Why are you– Let me finish. So, sorry– [INTERPOSING VOICES] That’s a legitimate– Sorry, let me
interrupt for a second. I’m going to ask Professor
Fish to continue. But I’m also going to give
you a chance to come back in. That’s a legitimate complaint
that students can make, that they’re being taught either
by incompetent professors– that is professors who seem
not to know their subject or to be up to date–
or by ideologically prejudiced professors. Aside from that, the
presumption is– and, again, the presumption
can be rebutted– but the presumption is that the
relationship is between someone who knows the subject and a
bunch of students who would like to know the subject, so
that from the very beginning there is no equality or
democracy of opinion. And there shouldn’t be. Please. So I don’t think
any student, really, here is arguing with
their professors about the laws of
physics or what some great literary
theorist has said. What I don’t
understand is why you are an expert on the
experiences of students of color, of any sort
of marginalized student at a university? I never said I were. God strike me down if I’ve
ever said a word about students of color– But that’s what
students are arguing. –or before this moment
uttered the phrase. You didn’t. And that’s a very great
strategy that you have used to sort of avoid the issue. What strategy? No strategy. Students are arguing about
their experiences at university. And you are trying to use
this race neutral language to silence them. Neutral is never a word
that I would use or employ. I hate the word neutral. Here, I have a
three-part mantra. And this will be the last
thing I say, I think. One, and this is to
professors, do your job. Two, don’t try to do
anyone else’s job. Three, don’t let others
do your job for you. If you keep to those
three, you will, in fact, be performing as a responsible,
intellectual professional. And if you do that, more
than not your students will respect you for
hewing to that line. Thank you. I think I want to
keep– don’t leave yet, please– I think that this
is a really productive line. I want to ask you to
stay for one more moment. Greg, do you want to
respond to the question. Oh, I just think you
should definitely read more of Stanley’s
work because I think it is very interesting,
particularly his work on– Substantively to the
challenge he’s raising. Yeah, yeah. Can you respond
to the challenge? What’s that? Can you respond to the
challenge that he’s raising? That the– He’s raised the
challenge to both views. And I want to know if you want
to respond to the challenge that he’s raised. I just thought it was
sort of non-responsive. What specifically
were we talking about in here that had to do
with silencing minority voices? Everything. I mean, what– Everything? When Professor Fish was reading
that list of the demands from Oberlin students,
I mean, sure, you omitted the ones that
had to do with issues for students of color. But, I mean, that’s
what it was all about. It’s about having
their voices heard. And you’re saying
these– the whole irony of this whole
conversation is you’re talking about students
being scared or not wanting to hear their professor
say these ideas when to me it seems that you are
scared of these new ideas. You are saying the words cis,
hetero, patriarchy in jest because you’re scared of them. Look. Thank you. Thank you. Come on. That’s ridiculous. Absolutely silly. And you should, in fact,
study harder before you say things like that. Look, the only thing that
I’m saying– the only thing that I’m saying– is that
the demands that students were making at Oberlin
are, A, demands about hiring and promotion
and the restructuring of departments. That’s not the
business of students. Students have no
competence in those areas. The larger issues– But it’s rigged. You said it’s rigged. The larger– no, I said
presidential searches are rigged. The larger issues that
you raised are, in fact, important issues. And they can be
studied in classrooms. And they are studied in
classrooms over and over again. But classrooms are not
the place to decide them. And I do want to– I’m
finally starting to understand what you’re saying. And thank you for clarifying. So probably the
thing that saddens me the most about this
debate is that you don’t need a special
amendment to protect majority opinions in a democracy. Majoritarian power does that. Majority vote does that. Money does that. You only need it to
protect minority voices. In case after case
that FIRE deals with are minority students, are
people who are numerical or racial or sexual minorities
taking the full benefit of the First Amendment and
FIRE having their backs when they do. So I think that,
ultimately, sometimes when some of the privilege
arguments get constructed to be something they’re
actually anti-free speech, I actually think free
speech is someone who believes in
privilege’s best friend because it ultimately is
actually anti-authoritarian ultimately. May I just twist on your
question a little bit? So, Stanley and both
of you were emphasizing freedom of expression,
and Stanley explicitly worried about social justice
being a value that should not be taken so highly
among students as part of their activities. But might someone say–
similar to what, perhaps, you were thinking– that
social justice is a requirement within which
free speech gets its power. And a society or
community is not addressing basic
social justice issues, then claims it’s merely
engaging in free speech have a slightly hollow
ring about them, maybe even more than hollow. Maybe it’s avoiding an issue. I disagree, especially
since that’s an argument that Judith Butler has made. That’s OK. So I certainly disagree,
that is I’ll just repeat my invocation of Kant’s
“What Is Enlightenment?” and say that the
university or college classroom is a space
with its own raison d’etre and its own protocols
and its own activity to which it is dedicated. And those activities can go
on even though in the larger society a great many crimes
against social justice and other forms of justice
are being committed. You cannot imagine the
university classroom as a place where social justice is done or
where social justice activism is encouraged and still be
left with a university at all. Social justice can be
studied in the classroom, and you can talk about
social justice concepts, but the moment that you take
social justice seriously as an occasion for making
a decision– walking out of the classroom and
marching, manning the ramparts or womaning the ramparts–
once you do that, you’ve lost the university entirely. And you may want to lose
the university entirely. I’ve never said that
higher education is something that should
never be compromised in favor of something else. All I’m saying is that if you
have it, you should have it and not something else. Thank you. I want to go back to the queue. Thanks for that exchange. Please. I don’t know if I’m next
in the queue, though. I’m sorry? Did you wait longer? OK. Thanks. Thank you. So can you guys hear me? Yeah? Yeah, it looks like it’s on. Does it work? It’s on. Just be very close. OK. I need to be close? I’m a post-doctoral
fellow here at Brown. I’m just starting this year. So I guess I got
my PhD last year. I guess that makes me
entitled to some kind of academic freedom. So I’m going to actually
bounce off of what you said– That’s a good move. –in part and draw from
part of what you said. I also want to share one
experience to start with. I started reading some of your
works, Professor Fish, when I was a student in France. And I wasn’t reading
them for a class because you weren’t taught
in French universities. What? At the time– sorry–
I was reading them in the context of an occupation. It was a student
movement in 2003. And we were occupying
the university in order to hold on to
something that we had, which you described as the sort
of essence of conservatism. And I’m sure that my activist
friends and myself at the time, if we had been taught
that we were being conservative in our
movement, we would have been quite suppressed. But I agree with you
about that, actually. Could you ask the question? But that occasion was a
strike and an occupation to try to keep the philosophy of
French higher education intact, which is higher education is
a right and not a privilege. And we were fighting
against the increase of tuitions for students. I think if in this country,
disruption, the right to strike, for example, for
a student was protected more effectively, I think American
students wouldn’t start their lives after college
extremely indebted because they would have been able to do
what French students have been able to do, what Quebecois
students have been able to do, et cetera, which is to keep
university more accessible. So that’s a paradox there. And that– Sorry, do you have a question? Sorry, I just want to conclude. Just what I’m trying to say
is that the sharp divisions that you’re making between
the academic world, which tends to be more
aristocratic– and I agree with that there’s
certain competences that need to be valued
and given authority– and a democratic world where
social justice is fought. Those sharp divisions don’t
seem to stand with the examples that I just shared. Thank you. Thank you very much. I think they do. And I think that what you and
your fellow students were doing was putting pressure from
the outside to university and, perhaps, state officials. I don’t know enough about
the French situation to say– actually, I
don’t know anything about the French situation. And I don’t know the extent
to which the French academy is controlled by the government
or what was at stake. But I don’t think
there would finally be such a clash between us,
although I’m not in a position to be able to say exactly why. So we have 10 minutes left. I want to go to
the next question. Please. [INAUDIBLE] This question is
for Professor Fish. So you argued that
freedom of speech is not a fundamental
value for the university. I would wonder if you
would agree, though, that freedom for
corporate groups is a fundamental value
of the university. Part of what living in
a free society means is that groups have the
freedom to organize themselves even though their own
internal structure is not isomorphic to the structure
of the larger society, for example, churches
and organizations. So I was wondering
if you would– I think you should agree that
that’s a form of freedom that universities are
committed to and– Say that again. It wasn’t clear. [INAUDIBLE] Corporate, the freedom
of corporate groups, which is a kind of
limitation on government power and a political value. How do you link that up
with what a university– a university is a
corporate group? I’m not quite understanding
your question. Are you thinking of
clubs at the university? What kind of things
do you have in mind? No, a university
is an organization within a political society. It’s not organized on the same
principles as a free society because, as you point
out, it’s not a democracy. But part of what living
in a free society means is the freedom for
corporate groups– I mean groups of individuals–
to organize themselves in non-democratic or
illiberal liberal ways. Not every organization
in a free society has to be organized
in the same way. So I’m wondering if you’d agree
that that’s a political value that the university is– That what’s a political
value? [INAUDIBLE] The freedom of corporate
groups to organize themselves as they see fit. And isn’t that a political
value that the university is committed to? I’m still not
getting your point. I’ll say this. When I think about
universities, I think of them under the same set of
restrictions and limitations that I’ve given
voice to here before. For example, universities
should not take a position on fossil fuels even though many
students at many universities are asking their university
to divest from fossil fuels. Universities should not
use their endowments in any way to make a social
or political statement or to do good. That’s not what they’re
in the business for. They are corporate entities,
but they are corporate entities whose purpose is the
extension and the protection of the academic ideal as
I have tried to describe. Thank you very much. If you can ask your questions
briefly and precisely, that be really lovely. Hi. My question is also
for Professor Fish. And I think it’s been answered
a little bit in the past couple of answers, but I
would like to question what you mean by neutral. I never use the word. Well, you said you
hated it and yet you say that universities
shouldn’t do good. And yet, how can they possibly– That’s not being neutral. That’s not being neutral. –take a– In other words, all I’m
saying is that universities should do their own business. My argument is a
professionalism argument. So you do define their own
business as being neutral or you don’t? No. There’s nothing
neutral about it. When neutrality
enters the discussion, it means that
political alternatives have been surfaced,
and you’re deciding not to be on either side. In my vision of the university,
political alternatives never surface except as
subject matters for discussion. So neutrality as a concept
doesn’t enter the arena. Do you see what I mean? I see. Yeah, so you’re saying– In other words, it’s
just doing your job. That’s my entire advice. Do your job. Know what your job is. And don’t fall into the trap
so many academics are prone to, of thinking of their
job in grandiose terms, thus the title of the book
Greg so nicely flashed on one of his Power Points,
the title of my 2000 something or other book– Thank you. Save the World on Your Own Time. So we’re going to have
two more questions, and then we’re finished. Please. I have to say, I kind of
envy your position, Stanley, because I would love
to be an academic and to learn from my students. That is not my
question, however. My question is we are here
at Brown University, which in 1969 changed its curriculum. How did it do that? And it made it into a much
more interesting university. And it did that, from
what I understand, by joining students,
administration, and professors together in one group. Now, I wasn’t there. I was here before that. But I do know that I envied
the students who came after. And I wonder if we
could talk to that time when, in fact, students had
a great deal of opportunity to make changes in
this very university. Thank you. [CLAPPING] Well, yeah, it’s always nice
to applaud [? pieties. ?] Look, I have been on committees,
search committees and other kinds of
committees, where there were student representation. And I felt sorry
for the students because the students,
first of all, felt that they didn’t
have that much to say. And then they felt,
quite correctly, that no other member
of the committee was listening to anything
that they were saying. That’s the way it is. And that’s the way
it always will be. My memory of Brown’s
transformation was the transformation of
a ho-hum admissions office into a world class
strategic admissions office. That, for me, is the great
story of Brown University. It learned how to recruit
good students better than anyone else. And that’s a lot better
than high-sounding phrases like social justice
and community and all the rest of that stuff. I want to go onto the last–
sorry, very super brief. Oh, just before we
run out of time, the relationship between social
justice and academic freedom, I think probably the most
interesting extrapolation of that was actually in a
book by Alice Dreger called Galileo’s Middle Finger, who
just makes the point that you need academic freedom,
you need academia to try to figure out what
the actual solutions are. And it does have to
have a certain amount of open-mindedness and a certain
amount of academic freedom and all these kind of things. Otherwise, you might
find yourself pushing up against the wrong tree. And she talks about how there
is a relation between the two, but it’s not one pushing
toward the other. It’s the other way around. Thank you. Last question,
Professor Josephson? Two points of information. One is that since you
brought up Oberlin, the man in charge of
student life at Oberlin when those demands
were issued is now head of student life at Brown. We know what we’re in for. Two, you can think of
the 1969 new curriculum at Brown as a result
of the Vietnam War and the protests on campuses. And we’ve never managed
to historicize it here. It’s about time. My question, would
you be so kind, Professor Fish, as
to send your talk to every member of our
senior administration and our corporation? They need to hear it. They are living in
an echo chamber, as the chancellor said to me. And they need very much
to hear other opinions. Well, if this rose to the
level of a talk, I would do it. But I just had a bunch
of piece– things appear every day on this front. And I was just putting together
things that had emerged. And I had to admit some things
like a horrible statement by the University of Minnesota
faculty senate headlined “free speech above all.” So it happens all the time. And all I have here is
a bunch of papers out of which I attempted to craft
an intelligible 25 minutes. I’ll just close by
thanking all of you for taking your time to attend
this event this evening. And please join me in
thanking our two speakers. [APPLAUSE]

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